Citation Nr: 1319257 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-18 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active military service from May 1989 to March 1990 and from December 2003 to August 2005. This appeal to the Board of Veterans' Appeals (Board) is from an initial October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of the claims file was subsequently transferred to the RO in Montgomery, Alabama during the pendency of the appeal. The Veteran was scheduled for a Travel Board hearing before a Veterans Law Judge in April 2010. However, the Veteran submitted a request to withdraw the hearing in April 2010. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Veteran's claim was previously before the Board in February 2011, but was remanded for further development. That development having been completed, this claim is once again before the Board. During the pendency of the appeal, a May 2008 rating decision granted the Veteran a temporary evaluation of 100 percent from July 1, 2007 to July 29, 2007 for a period of convalescence based upon right knee surgery. That same rating decision also assigned a 10 percent evaluation from August 1, 2007 and proposed to reduce the Veteran's cervical spine and right knee disabilities from 10 percent to 0 percent respectively. In a November 2008 rating decision, the Veteran's 10 percent evaluations for cervical spine and right knee disabilities were continued, finding reduction unnecessary. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran was not shown to have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis at any period pertinent to this appeal. 2. Degenerative changes of the cervical spine shown on x-ray are demonstrated by the evidence of record. 3. The Veteran was not shown to have incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months at any period pertinent to this appeal. 4. The Veteran was not shown to have a flexion limited to at least 30 degrees, extension limited to at least 15 degrees, moderate subluxation or instability, or ankylosis of the right knee in any period pertinent to this appeal. 5. Degenerative changes of the right knee joint shown on x-ray are demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 and 5243 (2012). 2. The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the right knee are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5260, and 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluations for degenerative disc disease of the cervical spine and degenerative joint disease of the right knee, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. VA provided the Veteran with adequate medical examinations in April 2007, April 2008, and March 2011. The examinations are adequate because each contains a history obtained from the Veteran and thorough examination, to include range of motion testing in accordance with the requirements set out in DeLuca v. Brown, 8 Vet. App. 202 (1995), relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as here, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous.' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). In rating a musculoskeletal disability, functional loss due to pain is a factor. Other factors include less movement than normal, weakened movement, excess fatigability, pain on movement, and painful motion. 38 C.F.R. § 4.40, 4.45, and 4.59; see also DeLuca, 8 Vet. App. 202. The cervical spine can be rated under Diagnostic Codes (DCs) 5003 or 5243. 38 C.F.R. § 4.71a. The schedule directs to evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Sec. 4.25. Diagnostic Code 5243. 38 C.F.R. § 4.71a. The knee can be rated under Diagnostic Codes 5003 or 5256-5263. 38 C.F.R. § 4.71a. Assigning multiple ratings for the Veteran's left knee disability based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, lateral instability and degenerative arthritis of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97 (1997); but see 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The Board has also considered whether separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. See VAOPGCPREC 9-2004, 69 Fed. Reg. 59990 (2004). Analysis The Veteran contends that the severity of both his cervical spine and right knee conditions is higher than represented by each 10 percent evaluation. In his April 2006 notice of disagreement, the Veteran stated that his conditions warranted 20 percent respectively. In a June 2011 statement, the Veteran further indicated that he warranted a 20 percent evaluation for his cervical spine, but also contended that he warranted a 50 percent evaluation for his right knee. He explained that he was scheduled for knee surgery and that he could not stand or put weight on his knee, that it was unstable, that he could not move it properly, and that he was in a great deal of pain. The Veteran also stated that he had to have fluid drained from his knee and that he had to keep it extended in a fixed position to prevent further fluid build-up. He has continued to allege pain in both the cervical spine and the right knee. Cervical Spine A review of the Veteran's service treatment records show that the Veteran was treated for complaints of neck pain in April 2005. Full range of motion was noted, with pain at the end of motion. A medical evaluation board (MEB) was conducted in April 2005 and noted cervical neck pain due to a lifting injury in November 2004. Imaging conducted in service showed evidence of multi-level degenerative disc disease of the cervical spine. No limitation of motion with a forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis was noted. There were no incapacitating episodes. The Veteran has received private treatment for his cervical spine. He has been assessed with neck pain. Imaging in February 2006 showed small left C6-7 disc herniation and mild disc bulging at C3-4. No limitation of motion with a forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis was noted. There were no incapacitating episodes. A review of the Veteran's VA outpatient treatment records shows that he had received treatment for his cervical spine. The Veteran was diagnosed with degeneration of cervical disc on July 2006. In March 2008, the Veteran was assessed with mechanical neck pain. A June 2008 treatment note stated that the Veteran's condition was chronic and required on-going treatment with pain and anti-inflammatory medications. The condition was reported as expected to worsen gradually. No limitation of motion with a forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis was noted. There were no incapacitating episodes. The Veteran was provided a VA examination on April 2007. At this examination, the examiner noted the Veteran's complaints of neck pain since 2005 and that the condition had gotten progressively worse. The Veteran reported symptoms of stiffness, decreased motion, and moderate pain manifested by a deep ache that lasted for hours over the course of 1 to 6 days. Objective testing revealed bilateral tenderness and pain with motion, with tenderness enough to be responsible for abnormal gait or spinal contour. Muscle and sensory examinations were normal. Reflex examinations revealed a hypoactive left tricep, bilateral brachioradialis, bilateral finger jerk, and bilateral abdominal. There was no ankylosis or incapacitating episodes. Range of motion testing revealed a flexion of 45 degrees, extension of 45 degrees, left lateral flexion of 21 degrees, right lateral flexion of 28 degrees, left lateral rotation of 56 degrees, and right lateral rotation of 64 degrees. Pain was noted with motion and there was no additional pain or loss of motion on repetitive use. Significant effects were reported on the Veteran's occupation. Daily effects were severe for sports and moderate for chores and exercise. The Veteran was provided with an additional VA examination on April 2008. At this examination, the examiner noted the Veteran's complaints of neck pain since 2004. Pain was noted as moderate, dull, and sometimes shooting, occurring from 20 to 30 minutes for a duration of 1 to 6 days. Moderate weekly flare-ups lasting from 20 to 30 minutes were also reported. Objective testing did not reveal any observable symptoms. Muscle, reflex, and sensory examinations were normal. There was no ankylosis or incapacitating episodes. Range of motion testing revealed a flexion, extension, and bilateral lateral flexion of 45 degrees and bilateral lateral rotation of 80 degrees. No pain was noted with motion and there was no additional pain or loss of motion on repetitive use. No significant effects were reported on the Veteran's occupation or daily activities. Imaging revealed a normal x-ray and the examiner diagnosed the Veteran's cervical condition as improved. The Veteran was provided with an additional VA examination on March 2011. At this examination, the examiner noted the Veteran's complaints of neck pain since 2004 and that the condition was stable. The Veteran reported occasional muscle spasms. Pain was noted as mild to moderate tightness in the back of the neck that was intermittent and daily as well as headaches. Moderate weekly flare-ups lasting from 20 to 30 minutes were also reported. Objective testing did not reveal any observable symptoms. Muscle, reflex, and sensory examinations were normal. There was no ankylosis or incapacitating episodes. Range of motion testing revealed a flexion and extension of 45 degrees, bilateral lateral flexion of 40 degrees, and bilateral lateral rotation of 70 degrees. No pain was noted with motion and there was no additional pain or loss of motion on repetitive use. No significant effects were reported on the Veteran's occupation. There were mild effects noted for chores, sports, and exercise. Based on the above, the Board finds that the Veteran's cervical spine condition only meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation under Diagnostic Code 5243, the evidence must show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis, which is not shown. For example, although some minimal loss of motion has been noted, all three VA examinations, as well as private treatment records and VA outpatient treatment records, have not shown a range of motion for the cervical spine even close to what is contemplated by the Schedule for an evaluation of 20 percent. Further, there have been no reports of ankylosis or incapacitating episodes. The Board notes that, while the April 2007 VA examiner stated that objective evidence showed tenderness severe enough to be responsible for abnormal gait or spinal contour, it appears that this may be a mistake or, at the very least, the result of an unclear examination, as the examiner also indicated that the Veteran had normal gait and spinal contour. As such, the findings of that examination are not found to be probative in that regard. Thus, while the Veteran is competent to report on symptoms of pain and stiffness, and he is credible in his belief that he experiences such symptoms, the medical evidence of record shows that he does not meet the criteria such that a higher rating would be warranted, as his pain is already recognized in the 10 percent evaluation in accordance with 38 C.F.R. 4.59. As noted above, functional loss is the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Functional loss is not demonstrated by the medical findings to be such that the disability warrants a higher rating. No additional functional loss following repetitive movement was demonstrated on VA examination in 2007, 2008, and 2011. The Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the cervical spine impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment and the extent to which a determination can be made on the degree of functional impairment experienced during physical activity and flare-ups. Based on all of the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for service connected degenerative disc disease of the cervical spine. The Board has considered whether staged ratings are warranted, but finds that they are not, as the evidence does not show that there are distinct periods of time where an evaluation higher than 10 percent for the Veteran's cervical spine condition is warranted. The evidence of record does not warrant a rating in excess of that assigned for the Veteran's cervical spine condition at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluation in this case is not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected cervical spine condition, but the evidence reflects that those manifestations, in particular the presence of more limitation of motion, incapacitating episodes, abnormal gait or spinal contour caused by spasm or tenderness, or ankylosis, are not present. The Veteran complained of symptoms that are not exceptional or unusual features of a spine disability. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's cervical spine condition. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not specifically contended that his cervical spine disability renders him unemployable and the evidence does not otherwise suggest that this is the case. Indeed, the Veteran is employed, as shown in his VA examinations, without significant effects. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Right Knee A review of the Veteran's service treatment records show that the Veteran was treated for complaints of right knee pain in August 2004. In November 2004, the Veteran was receiving treatment for tendonitis. Imaging in March 2005 showed evidence of degenerative changes for the right knee. A medical evaluation board (MEB) was conducted in April 2005 and noted the Veteran's right knee condition. Full range of motion for the right knee with effusion, tenderness along the medial, collateral ligament anterior/posterior joint line, and pain noted on Apply and McMurray testing was shown. There was no evidence of flexion limited to at least 30 degrees, extension limited to at least 15 degrees, moderate subluxation or instability, or ankylosis of the right knee. The Veteran has received private treatment for his right knee. In November 2005, he was assessed with a sprain, strain of the right knee, as well as mild degenerative arthritis. It was also noted that he may have a tear in his cartilage. In February 2006, he received an injection to treat the pain. In June 2006, the Veteran had imaging performed that revealed mild degenerative arthritis of the right knee. In August 2006, the Veteran had imaging performed that revealed suspect bursitis involving the deep infrapatellar bursa, associated mild thickening of the patellar tendon with no definite tear, mild prepatellar bursitis, and small amount of intra-articular fluid with no internal derangement identified. In January and April 2007, the Veteran complained of right knee pain and swelling and received an injection to treat. In May 2007, the Veteran was diagnosed with a sprain/strain and effusion of the right knee in response to complaints of pain. In July 2007, it was noted that the Veteran had a right knee arthroscopy and a partial medial meniscectomy to treat a torn medial meniscus at the VA Medical Center in June 2007. He sought treatment for swelling and pain after the operation, which revealed that it was healing nicely and that he had a range of motion from 5 to 90 degrees. An aspiration was performed to drain fluid from his knee. There was no evidence of flexion limited to at least 30 degrees, extension limited to at least 15 degrees, moderate subluxation or instability, or ankylosis of the right knee. A review of the Veteran's VA outpatient treatment records shows that he has received treatment for his right knee. In July 2006, the Veteran was diagnosed with tear of medial cartilage or meniscus of knee as well as mild medial osteoarthritis per radiographs in April 2005. In January 2007, imaging revealed a meniscal tear, degenerative changes, and a popliteal cyst. In May 2007, the Veteran sought treatment for his right knee pain and examination revealed an effusion that had to be aspirated. Surgery was recommended. In June 2007, the Veteran received arthroscopic surgery with a partial medial meniscectomy. The Veteran was seen for a follow up appointment in July 2007, at which time he had a range of motion from 5 to 35 degrees and pain throughout. At the end of July 2007, the Veteran was again seen and showed much improvement, with range of motion to 120 degrees. Although an edema was noted, pain had significantly decreased and the surgical site was healing well. A March 2008 treatment note indicated that the Veteran's range of motion had improved and pain decreased, but still present. Range of motion was to 120 degrees, with a positive patellofemoral grind. He was diagnosed with chronic right knee pain status post medial meniscectomy. A June 2008 treatment note stated that the Veteran's condition was chronic and required on-going treatment with pain and anti-inflammatory medications. There was no evidence of moderate subluxation or instability, or ankylosis of the right knee. The Veteran was provided with a VA examination on April 2008. At this examination, the examiner noted the Veteran's complaints of right knee pain since 2004 and that it had improved since onset. The Veteran reported a standing limitation of 2 to 3 hours and a walking limitation of 1 mile. He complained of daily locking episodes and repeated effusion of the right knee. The Veteran also complained of weekly moderate flare-ups that lasted for hours. Range of motion testing revealed a flexion of 140 degrees and extension of 0 degrees with no pain. There was no additional pain or loss of motion upon repetition. No ankylosis or instability was noted. The Veteran was diagnosed with partial medial meniscectomy of the right knee with residual pain. The effects on the Veteran's occupation included significant effects. However, this was noted as being the 8 weeks of absence from work that the Veteran sustained when he had his meniscectomy. Since that time, his condition was much improved. There were also mild effects on chores, but this was also much improved after surgery. The Veteran was provided with an additional VA examination on March 2011. At this examination, the examiner noted the Veteran's complaints of right knee pain since 2004 that were now stable. The Veteran reported intermittent sharp pain and weakness once a day in the right knee. The Veteran also complained of edema, giving way, instability, weakness, effusion, and pain. He reported flare-ups as well. The Veteran had a standing limitation of 15 to 20 minutes and walking limitation of 1 mile. Objective findings revealed crepitus, clicks and snaps, and tenderness. Range of motion testing revealed a flexion of 120 degrees and extension of 0 degrees with pain. There was no additional pain or loss of motion upon repetition. No ankylosis or instability was noted. The Veteran was diagnosed with degenerative joint disease, medial ligament strain of the right knee. There were no significant effects on the Veteran's occupation. Effects on daily activities were mild for chores, exercise, and sports. Based on the above, the Board finds that the Veteran's right knee condition only meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation under Diagnostic Code 5257, the evidence must show moderate recurrent subluxation or lateral instability of the right knee, which is not shown. For example, the Veteran's private treatment records, VA outpatient treatment records, April 2008 VA examination, and March 2011 VA examination showed no objective clinical indications of instability or laxity of the right knee. Thus, while the Veteran is competent to report on symptoms of giving way and weakness, and he is credible in his belief that he experiences such symptoms, the medical evidence of record shows that he does not have true subluxation or lateral instability of the right knee such that a higher rating would be warranted. Further, the rating schedule does allow a separate evaluation for arthritis, provided an additional disability is shown. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604; 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran's current evaluation is shown to be based upon pain from his degenerative arthritis in his right knee. Moreover, an additional disability is not shown, as the Veteran has not demonstrated limitation of flexion and/or extension that at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (60 degrees) or Diagnostic Code 5261 (5 degrees). Although the Board notes that treatment records showed the Veteran with a flexion of 35 degrees and extension of 5 degrees in July 2007, these ranges of motion were recorded during the period of convalescence for the Veteran's arthroscopic surgery for which he was already receiving a temporary 100 percent evaluation. Apart from that instance, the Veteran's range of motion has not met even the requirements of a 10 percent evaluation for Diagnostic Code 5260 or Diagnostic Code 5261. It follows that if the disability were rated only under Diagnostic Code 5260 and/or Diagnostic Code 5261, higher evaluations would not be warranted. See VAOPGCPREC 9-04; 69 Fed. Reg. 59990. For limitation of leg flexion the evidence would have to show limitation to 30 degrees or less. For limitation of leg extension, the evidence would have to show limitation to 15 degrees or more. The medical evidence of record has not at any time during the pertinent appeals period shown the presence of a limitation of motion even close to that contemplated by the Schedule, as the Veteran's flexion has only decreased from 140 to 120 degrees over the course of the period pertinent to the appeal, and there has not been any limitation of extension, excluding the aforementioned period of convalescence in July 2007, which is not considered. As noted above, functional loss is the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Functional loss is not demonstrated by the medical findings to be such that the disability warrants a higher rating. No additional functional loss following repetitive movement was demonstrated on VA examination in 2008 and 2011. The Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating. See Barr, 21 Vet. App. at 309. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the right knee impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment and the extent to which a determination can be made on the degree of functional impairment experienced during physical activity and flare-ups. Based on all of the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for service connected degenerative joint disease of the right knee. The Board has considered whether staged ratings are warranted, but finds that they are not as the evidence does not show that there are distinct periods of time where an evaluation higher than 10 percent for his right knee condition is warranted. The evidence of record does not warrant a rating in excess of that assigned for the Veteran's right knee condition at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer, 22 Vet. App. at 243-44. In this regard, the schedular evaluation in this case is not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected right knee condition, but the evidence reflects that those manifestations, in particular, the presence of more limitation of motion, moderate subluxation or instability, or ankylosis are not present. The Veteran complained of symptoms that are not exceptional or unusual features of a knee disability. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's right knee condition. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on TDIU due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice, 22 Vet. App. at 447. A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson, 251 F.3d at 1384. The Veteran has not specifically contended that his right knee disability renders him unemployable and the evidence does not otherwise suggest that this is the case. Indeed, the Veteran is employed, as shown in his VA examinations, without significant effects. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs