Citation Nr: 1318809 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 05-39 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent for residuals of a total left knee replacement. 2. Entitlement to a rating in excess of 30 percent for residuals of a total right knee replacement. 3. Entitlement to a rating in excess of 10 percent for discogenic disease of the lumbar spine prior to April 25, 2012. 4. Entitlement to a rating in excess of 20 percent for discogenic disease of the lumbar spine since April 25, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to July 1976. This appeal comes before the Board of Veterans' Appeals (Board) from July 2007 and April 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2007, the RO granted a temporary total rating following a total right knee replacement, effective from December 2006 to February 2008, and a 30 percent rating thereafter. The RO denied a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. The Board concludes that the Veteran's correspondence in April 2008 is an expression of timely disagreement with the assigned ratings and a claim for an increased rating for residuals of a total left knee replacement. In April 2009, the RO denied a rating in excess of 30 percent for the left knee, and continued the assigned ratings for the right knee and lumbar spine. The Veteran expressed timely disagreement in May 2009. A Statement of the Case was issued in November 2009. The Veteran submitted his Substantive Appeal, VA Form 9, also in November 2009. In March 2011 and May 2011 substantive appeals, the Veteran requested a hearing before the Board sitting at the RO. He withdrew the request in writing in July 2011, prior to the date of the scheduled hearing. 38 C.F.R. § 20.704 (e) (2012). This case was remanded by the Board in April 2012 for further development. At that time, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder including depression to include as secondary to multiple service-connected joint disorders. The Board notes, however, that service connection for major depressive disorder mild chronic (claimed as depression) was granted in an October 2012 rating decision. As the benefits sought on appeal has been granted, the Board no longer has jurisdiction over this issue. FINDINGS OF FACT 1. Total left knee replacement is not manifested by chronic residuals consisting of severe painful motion or weakness. 2. Total right knee replacement is not manifested by chronic residuals consisting of severe painful motion or weakness. 3. Prior to April 25, 2012, discogenic disease of the lumbar spine was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. Since April 25, 2012, discogenic disease of the lumbar spine is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent disabling for total left knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5055 (2012). 2. The criteria for a rating higher than 30 percent disabling for total right knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5055. 3. The criteria for a rating higher than 10 percent disabling for discogenic disease of the lumbar spine prior to April 25, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. The criteria for a rating higher than 20 percent disabling for discogenic disease of the lumbar spine since April 25, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in September 2006, August 2008 and January 2009, VA advised the Veteran of the information and evidence needed to substantiate the claims. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the October 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Left and Right Knee The Veteran appeals the denial of a rating higher than 30 percent for total knee replacement of the left and right knee. His total right knee replacement disability is rated under Diagnostic Code 5010. His total left knee replacement disability is rated under Diagnostic Codes 5010-5055. Diagnostic Code 5010 addresses traumatic arthritis. Diagnostic Code 5010 directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a , Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. Under Diagnostic Code 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261 or 5262. The minimum evaluation is 30 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5055 (2012). Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate rating may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Based on the evidence presented, the Board finds against a rating higher than 30 percent disabling for total left knee replacement. In this regard, in April 2008, the RO received the Veteran's claim for an increased rating. The Veteran claimed that he did not use support devices for mobility but that his daily activities were greatly hampered by his knee, feet, and back disabilities. His symptoms were exacerbated by cold weather and he feared falling after dark. He described the pain as "unbelievable." In the March 2009 VA examination, the VA examiner noted that the Veteran did not use support devices and was able to perform his occupational duties, drive an automobile, and perform all other activities of daily living. Range of motion testing revealed the left knee had 0 degrees of extension and flexion to 100 degrees with pain. McMurry and drawer test was negative. There was crepitus on motion but no instability or additional loss of function on repetition. X rays revealed degenerative joint disease of the knee. The Veteran was able to sit, stand for 10 minutes and walk for 10 minutes, but unable to climb, kneel, bend, twist, push and pull with the knees. In the March 2010 VA examination, the Veteran reported constant knee pain, exacerbated by walking, standing, or climbing stairs, and occasional locking in extension of the left prostheses. The Veteran reported the ability to stand for 15 to 30 minutes and walk up to one-quarter mile. Examination revealed the Veteran had a slow, flat footed gait. There was stiffness, deformity, pain, weakness and locking of the knees but no incoordination, subluxation, effusions, inflammation giving way, or instability. Range of motion was zero to 125 degrees with pain on motion. Extension was normal. The Veteran reported that he continued to work full time performing office work but had lost 10 weeks of work in the past 12 months for medical appointments. In an April 2010 statement, the Veteran noted that he was able to exercise on a stationary bicycle depending on the level of his pain. The Veteran was afforded another VA examination in April 2012. During this examination, degenerative joint disease of the knees was diagnosed. Left knee range of motion revealed forward flexion to 110 degrees with pain at 95 degrees. Extension was full. He was able to perform repetitive testing but with additional limitation of range of motion. There was functional loss to include less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. There was no instability, meniscal tear and/or subluxation of either knee. A non painful scar 15 cm was present on the right knee and 22 cm on the left knee. The Veteran's knee disability was noted to impact his ability to work which included stiffness after being sedentary, fatigue and loss of concentration due to impaired sleep and pain, and difficulty walking to work from the parking lot. Here, the examination findings regarding the left knee do not show severe painful motion or weakness warranting a rating higher than 30 percent under DC 5055. While the Veteran reports painful motion and weakness, he is still able to perform his occupational duties, drive an automobile, and perform all other activities of daily living. At most, examination reveals forward flexion limited to 95 degrees with pain. The Board recognizes that the Veteran has complained of stiffness, deformity, pain, weakness and locking of the knee. The Board notes, however, that neither the lay or medical evidence reflects severe painful motion or weakness as to warrant the next higher rating under DC 5055. The Board also notes that separate evaluations for limitation of extension, and instability or subluxation are not warranted. In this regard, examinations reveal that the Veteran retains full extension and there is no showing of subluxation and/or instability of the left knee. Based on the evidence of record, the Board also finds against a rating higher than 30 percent for total right knee replacement. In this regard, the RO received the Veteran's claim for an increased rating for his right knee disability in August 2006. In the October 2006 VA examination, examination revealed the knees were asymmetrical, the right was larger than that of the left. There was some fluid in the right knee. Range of motion revealed the right knee extended painlessly to 0 degrees and was limited to 108 degrees due to pain. It was then noted that the right knee could extend to 0 degrees of extension with some pain and was limited to 98 degrees of flexion by pain. All the ligaments tested were stable. The Veteran's gait was asymmetric favoring the right knee. Degenerative arthritis of the knees, bilaterally, status post total knee replacement of the left knee was diagnosed. The Veteran underwent a total right knee replacement in December 2006. Following the right knee replacement, the physician noted that the prosthesis was in an appropriate position and alignment. He prescribed a regimen of exercises. In March 2007, the physician noted continued proper placement and alignment, and noted that the only limitation was that the Veteran should not step down more than 18 inches with the right leg. In July 2007, the RO granted a temporary total rating following convalescence from the total knee replacement, effective until February 2008, and a 30 percent rating thereafter. In the March 2009 VA examination, the VA examiner noted that the Veteran did not use support devices and was able to perform his occupational duties, drive an automobile, and perform all other activities of daily living. Range of motion testing revealed the right knee had 0 degrees of extension and flexion to 105 degrees with pain. McMurray and drawer test was negative. There was no instability or additional loss of function on repetition. X rays revealed degenerative joint disease of the knee. The Veteran was able to sit, stand for 10 minutes and walk for 10 minutes, but unable to climb, kneel, bend, twist, push and pull with the knees. In the March 2010 VA examination, the Veteran reported constant knee pain, exacerbated by walking, standing, and/or climbing stairs. The Veteran reported the ability to stand for 15 to 30 minutes and walk up to one-quarter mile. Examination revealed the Veteran had a slow, flat footed gait. There was stiffness, deformity, pain, weakness and locking of the knees but no incoordination, subluxation, effusions, inflammation giving way, or instability. Range of motion was zero to 105 degrees with pain on motion. Extension was normal. Inconsistently, the examiner noted ankylosis of the right knee but did not specific a fixed position. The Veteran reported that he continued to work full time performing office work but had lost 10 weeks of work in the past 12 months for medical appointments. The Veteran was afforded another VA examination in April 2012. During this examination, degenerative joint disease of the knees was diagnosed. Right knee range of motion revealed forward flexion to 90 degrees with pain at 80 degrees. Extension was full. He was able to perform repetitive testing but with additional limitation of range of motion. There was functional loss to include less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. There was no instability, meniscal tear and/or subluxation of either knee. A non painful scar 15 cm was present on the right knee and 22 cm on the left knee. The Veteran's knee disability was noted to impact his ability to work which included stiffness after being sedentary, fatigue and loss of concentration due to impaired sleep and pain, and difficulty walking to work from the parking lot. With regards to the right knee, as noted, the Veteran's disability is rated under DC 5010 which directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. Limitation of flexion of the knee is rated under DC 5260. Based on the evidence presented, however, the Board finds that DC 5010-5055 is a more appropriate diagnostic code to rate the Veteran's right knee disability. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board finds that the more appropriate rating code for the Veteran's right knee total replacement is DC 5010-5055. DC 5055 specifically addresses knee replacement which is the case here and it is more analogous to the Veteran's symptomatology. It is also noted that the Veteran is rated under DC 5010-5055 for his total left knee replacement disability. As the Board has decided that DC 5010-5055 is a more appropriate diagnostic code to rate the Veteran's right knee disability, the Board will now address whether a rating higher than 30 percent under this code is warranted. Here, the examination findings regarding the right knee do not show severe painful motion or weakness warranting a rating higher than 30 percent under DC 5055. While the Veteran reports painful motion and weakness, he is still able to perform his occupational duties, drive an automobile, and perform all other activities of daily living. At most, examination reveals forward flexion limited to 80 degrees with pain. The Board recognizes that the Veteran has complained of stiffness, deformity, pain, weakness and locking of the knee. The Board notes, however, that neither the lay or medical evidence reflects severe painful motion or weakness as to warrant the next higher rating under DC 5055. To the extent that the March 2010 VA examiner noted ankylosis of the right knee, the Board notes that such finding is wildly inconsistent with the other examination results on that day and the historical record. As the Veteran retained the functional ability to flex to at least 105 degrees during that examination, it is clear that he was not ankylosed. Furthermore, in the April 2012 examination, anklyosis of the right knee was not noted. The Board also notes that separate evaluations for limitation of extension, and instability or subluxation are not warranted. In this regard, examinations reveal that the Veteran retains full extension and there is no showing of subluxation and/or instability of the right knee. Lastly, the Board has considered whether a separate compensable rating is warranted for scarring on the left and right knee. Examination revealed a non painful scar 15 cm was present on the right knee and 22 cm on the left knee. The Board finds that the above evidence does not warrant a separate compensable rating for scarring. At no time during this appeal has the scars been of the severity and/or of size so as to warrant a compensable rating under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Lumbar Spine The Veteran appeals the denial of a rating higher than 10 percent disabling for discogenic disease of the lumbar spine prior to April 25, 2012 and a 20 percent rating since April 25, 2012. His disability is rated under Diagnostic Code 5237. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habits, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Examination in September 2005 revealed the Veteran easily forward flexed to 45 degrees and extended to 30 degrees. The Board notes, however, it was not specifically noted that the above ranges of motion pertained to the lumbar spine. The Veteran did report some increased pain with extension and rotation to the left in his left lower back. There were no spasms, skin changes and/or surgical scars. Strength in the lower extremities was approximately 5/5 distally, and reflexes 1+, 0 at the Achilles. In August 2006, the RO received the Veteran's claim for an increased rating for his lumbar spine disability. In the October 2006 VA examination, the Veteran's paravertebral muscles were strong and not in spasm. There was some tenderness and the Veteran walked with an antalgic gait. He was able to extend 20 degrees before pain limited further motion and forward flexed to 92 degrees before pain limited further motion. Lateral flexion to the left was possible to 30 degrees, limited by pain, and to the right 20 degrees similarly limited. Twisting was possible to 32 degrees to the left before pain limited further motion and similarly to the right 30 degrees. Neurological examination revealed normal motor strength, and sensation and peripheral pulses were intact bilaterally. X rays revealed minimal spurring of the L4-L5 vertebrae. Degenerative joint and disk disease of the lumbar spine was diagnosed. In March 2007, a VA pharmacist noted the Veteran's reports of moderate pain from multiple joints but that he was able to work full time and ride a stationary bicycle. The Veteran expressed in April 2008 that he did not use support devices for mobility but that his daily activities were greatly hampered by his knee, feet, and back disabilities. His symptoms were exacerbated by cold weather, and he feared of falling after dark and crossing the street because he was unable to run. He reported that he experienced so much pain that it was "unbelievable." In the January 2009 VA examination, a VA physician noted a review of the claims file and the Veteran's report of the onset of low back pain in the 1990s. The Veteran reported that his moderate pain and stiffness had become more constant and localized but with no radiation to the lower extremities. The pain was exacerbated by extended sitting or bending but he was able to reach his toes with a deep back bend to don socks. The Veteran denied any lower extremity neurological symptoms or bowel or bladder dysfunction. He reported being able to walk one-quarter mile and that he did not experience incapacitating episodes. Examination revealed the Veteran had a flat footed gait and there were no abnormal spinal curvatures. There was tenderness over the L4-5 area and no loss of muscle strength, reflex, or sensation except for some loss of sensation in the toes. Range of motion of the thoracolumbar spine was 95 degrees flexion, 30 degrees extension, 30 degrees left and right lateral flexion, and 35 degrees left and right lateral rotation with no additional pain on motion or loss of function on repetition. The combined range of motion was 255 degrees. The examiner referred to an X-ray obtained in October 2006 that showed minimal spurring of lumbar vertebral bodies 4 and 5 with normal disc spacing and no spondylosis. The examiner noted that the Veteran was not employed, an observation that is inconsistent with the remainder of the record. A magnetic resonance image of the lumbar spine obtained in May 2009 showed mild degenerative changes, hypertrophy, ligament laxity at three levels and mild to moderate stenosis. Examination in June 2009 revealed the Veteran walked with an antalgic gait. Range of motion of the lumbar spine was 60 degrees of flexion and 20 degrees of extension. Extension was more painful. The Veteran reported pain on his right side that did not radiate towards his lower extremities. He denied bladder or bowel incontinence. Sensory and motor function was 5/5 in all muscle groups. He did not have any neurological deficit or sign of radiculopathy or radicular pain. In the March 2010 VA examination, the Veteran reported constant dull achy back pain which was worse with walking, standing, stair use and/or in cold weather. He worked full time but lost 10 weeks of work in the previous 12 months to attend medical appointments. The Veteran reported erectile dysfunction, and lower extremity parathesias and numbness. He denied bowel or bladder dysfunction, falls, and incapacitating episodes. The erectile dysfunction was noted to be secondary to hypogonadism. His gait was normal and there were no abnormal spine curvatures. On examination, the examiner noted normal posture with no muscle spasms or atrophy, tenderness, or weakness. There was no loss of motor function or sensation at any level. Range of motion of the thoracolumbar spine was 90 degrees flexion, 30 degrees extension, and 30 degrees bidirectional lateral flexion and rotation with pain on motion but no loss of function on repetition. The combined range of motion was 240 degrees. Degenerative disc disease was diagnosed. In correspondence in April 2010, the Veteran reported that his physician would no longer administer injections and recommended exercise. He reported that he experienced difficulty standing, sitting, and walking but declined to use additional oral medication because of constipation. In February 2011, the Veteran noted that he wanted to avoid the use of the increased transdermal medication because it caused mental confusion and slowed his abilities at work. The Veteran was afforded another VA examination in April 2012. Degenerative disc disease of the lumbar spine was diagnosed. Range of motion testing revealed forward flexion to 80 degrees with pain at 75 degrees, extension to 15 degrees with pain at 15 degrees, right lateral flexion to 25 degrees with pain at 20 degrees, left lateral flexion 30 degrees or greater with pain at 25 degrees, right lateral rotation to 25 degrees with pain at 25 degrees and left lateral rotation 30 degrees or greater with pain at 30 degrees or greater. The Veteran was able to perform repetitive testing with three repetitions. There was no additional limitation in range of motion following repetitive testing but there was functional loss and/or functional impairment to include less movement than normal, pain on movement, deformity, disturbance of locomotion and interference with sitting, standing and/or weight bearing. There was guarding or muscle spasms of the spine which resulted in an abnormal gait and abnormal spinal contour. Muscle strength and sensory testing revealed essentially normal findings. The Veteran had no radicular pain and/or other signs or symptoms of radiculopathy but he had straight leg raising possible to 60 degrees on the right and 30 degrees on the left with pain in the hamstrings. Intervertebral disc syndrome (IVDS) was diagnosed. The Veteran, however, had no incapacitating episodes over the past 12 months due to IVDS. Although he had scars associated with his disability, the scars were not painful, unstable and/or greater than 39 square cm. The VA examiner noted that the Veteran had a slow antalgic gait and had stiffness for about 30 yards after sitting in the waiting room chair. He can stand for 15-20 minutes, walk a block and sit for about one half hour before changing position. When standing, he seeks a wall or a piece of furniture to lean on. The examiner stated that the Veteran's disability affected his ability to work. He stated that the Veteran's work was generally sedentary so he needs to get up and move about periodically. It was noted that he used all his sick leave plus 36 hours of leave awarded to him and 19 days of furlough. The Veteran appeals the denial of a rating higher than 10 percent disabling for discogenic disease of the lumbar spine prior to April 25, 2012. The rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, 8 Vet. App. 202. The rating criteria is consistent with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. To warrant a higher rating for the period prior to April 25, 2012 the evidence must show the functional equivalent of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Based on the evidence presented, the Board finds no basis for assigning a rating higher than 10 percent for the Veteran's lumbar spine disability prior to April 25, 2012. In this regard, the more probative evidence establishes that forward flexion of the thoracolumbar spine was greater than 90 degrees during this period of time. During this time, with the exception of the June 2009 findings, forward flexion of the lumbar spine was shown to be limited to 90 degrees or above. The Board recognizes that in June 2009 flexion was shown to be limited to 60 degrees. The Board notes, however, examinations before and after the June 2009 findings revealed flexion 90 degrees or above. The Board finds that while the June 2009 examination revealed findings of flexion to 60 degrees, these results appear acute and are not a true reflection of the Veteran's disability during this time. Rather, the overall record reflects that for this period of time the Veteran's lumbar spine disability was manifested by forward flexion 90 degrees or above. Additionally, the combined range of motion of the thoracolumbar spine was shown to be much greater than 120 degrees required for the next higher rating. Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis also was not shown on examination. Although he walked with an antalgic gait at times, there were no abnormal spine curvatures during this time. As such, the criteria for a rating higher than 10 percent for discogenic disease of the lumbar spine prior to April 25, 2012 were not met. The Veteran also appeals the denial of a rating higher than 20 percent disabling for discogenic disease of the lumbar spine since April 25, 2012. To warrant a higher rating, the evidence must show forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A review of the record discloses that the Veteran's remaining functional forward flexion of thoracolumbar spine is greater than 30 degrees. Range of motion testing revealed, at most, forward flexion to 80 degrees with pain at 75 degrees. The above evidence is against a showing of ankylosis. These findings do not warrant a higher rating. The Board has also considered whether the Veteran's service- connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes for both periods of time. Although the Veteran has reported lost time from work because of his back, he has not reported any incapacitating episodes. The Board acknowledges that in the October 2006 VA examination it was noted that the Veteran used one day a month and two 30 hour periods of work afforded him every six months due to the incapacitating affects of all of his conditions. That, according to the examiner, was 16 days per year of incapacitation which was impossible to separate for which condition the time is being taken. The VA examiner did not indicate that the incapacitation was prescribed. It is noted that the Veteran denied incapacitating episodes in the January 2009 VA examination and in the April 2012 VA examination it was noted that there were no incapacitating episodes over the past 12 months due to IVDS. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. With regard to neurologic abnormalities, the Board notes that the Veteran reported lower extremity parathesias and numbness. For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 dictates that neurological conditions and convulsive disorders are to be rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, or severe incomplete paralysis, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123; 38 C.F.R. § 4.124. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. While the evidence demonstrates complaints of numbness, it does not demonstrate significant lower extremity neurological impairment resulting therefrom. In this regard, VA examinations revealed essentially normal neurological findings. The Veteran is competent to report symptoms, such as numbness and tingling, the objective findings however regarding strength, sensation, and even reflexes are largely normal. The Board concludes that the findings of skilled professionals are more probative than the Veteran's lay statements and a separate compensable evaluation for neurological abnormalities associated with the lumbar spine is not warranted. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. However, when rated by analogy, a separate compensable evaluation is not warranted. Lastly, the Board has considered whether a separate compensable rating is warranted for scarring of the back. Examination revealed scars associated with his disability are not painful, unstable and/or greater than 39 square cm. The Board finds that the above evidence does not warrant a separate compensable rating for scarring. At no time during this appeal has the scars been of the severity and/or of size so as to warrant a compensable rating under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. ALL CLAIMS The Board finds that the Veteran has presented competent and credible testimony regarding the nature and extent of his disabilities to include his reports of pain and functional limitations. The Board has also considered the requirements of 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Neither the lay or medical evidence, however, reflects that the requirements for a higher rating were met during any period addressed above. Except where otherwise noted, the Board has afforded greater probative value to the VA examinations than the Veteran's reports of symptomatology. The examinations were conducted by medical professionals with the expertise to comment and opine on the matters at issue. The examiners reviewed the records, which included the Veteran's contentions, and conducted a complete physical examination. The medical findings of record are also well reasoned and supported by the historical record. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disabilities. Accordingly, the claims are denied. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The evidence, particularly most recently, shows some occupational impairment due to the Veteran's back and knee disabilities to include limitation with sitting, walking and standing. The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disabilities. Therefore, any inferred TDIU claim is inapplicable in this case. Regarding referral for extraschedular consideration, consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the Veteran has not required frequent periods of hospitalization for his disabilities and that the manifestations of his disabilities are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disabilities would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER A rating higher than 30 percent disabling for total left knee replacement is denied. A rating higher than 30 percent disabling for total right knee replacement is denied. A rating higher than 10 percent disabling for discogenic disease of the lumbar spine prior to April 25, 2012 is denied. A rating higher than 20 percent disabling for discogenic disease of the lumbar spine since April 25, 2012 is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs