Citation Nr: 1319568 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-30 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for "impaired breathing". 2. Entitlement to service connection for acid reflux disease. 3. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine sprain (neck disability). 4. Entitlement to an initial disability rating in excess of 10 percent for a lumbar muscle spasm (back disability). 5. Entitlement to an initial compensable disability rating for a right knee sprain. REPRESENTATION Appellant represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from September 2006 to February 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the Veteran's claims file was subsequently transferred to the Detroit, Michigan RO. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Symptoms of impaired breathing and acid reflux disease were not unremitting in service, symptoms of impaired breathing and acid reflux disease have not been unremitting since service separation, and the Veteran does not have a current disability manifesting impaired breathing or acid reflux disease based on the best evidence. 2. Throughout the initial rating period on appeal, the Veteran's service-connected cervical spine disability has been manifested by forward flexion to no less than 40 degrees, accounting for pain on motion and after repetition; combined range of motion to no less than 300 degrees, accounting for pain on motion and after repetition; no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; and no incapacitating episodes. 3. Throughout the initial rating period on appeal, the Veteran's service-connected lumbar spine disability has been manifested by forward flexion to no less than 80 degrees, accounting for pain on motion and after repetition; combined range of motion to no less than 190 degrees, accounting for pain on motion and after repetition; no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; and no incapacitating episodes. 4. Throughout the initial rating period on appeal, the Veteran's service-connected right knee disability was manifested by flexion to no worse than 130 degrees, extension to no worse than zero degrees, no pain on range of motion testing, no additional loss of motion or pain after repetitive use, complaints of pain several times weekly with no flare-ups, negative x-ray studies, no instability, and no dislocation or removal of cartilage. CONCLUSIONS OF LAW 1. The criteria for service connection for impaired breathing have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for acid reflux disease have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for an initial evaluation in excess of 10 percent for a cervical spine sprain have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). 4. The criteria for an initial evaluation in excess of 10 percent for a lumbar muscle spasm have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). 5. The criteria for an initial compensable disability evaluation for a right knee sprain have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Impaired Breathing and Acid Reflux Disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The claimed conditions at issue are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has current impaired breathing and acid reflux disease that began during active service. Specifically, on his VA Form 21-526, he avers that he first experienced symptoms of acid reflux disease in September 2007, and first experienced symptoms of impaired breathing in October 2007. Further, he states he first sought treatment for both conditions in October 2007. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not incur an injury, event, or disease manifesting acid reflux disease during active service, and that a single episode of impaired breathing resolved prior to separation. Further, the weight of the evidence demonstrates that symptoms of impaired breathing and acid reflux disease were not unremitting in service. An undated service treatment record shows that the Veteran complained of chest pain, coughing, headaches, tightness of the chest, trouble breathing, and wheezing during exercise for two weeks. He was diagnosed with an upper respiratory infection and chest congestion, and was prescribed medication. The remainder of the service treatment records is negative for any report, findings, or diagnosis of impaired breathing. Further, the service treatment records are negative for any report, findings, or diagnosis of acid reflux disease. Indeed, an October 2007 separation examination report is negative for any report of breathing or gastrointestinal problems, and a January 2008 service treatment record (one month prior to separation) specifically states that the Veteran had no pulmonary or gastrointestinal symptoms, providing evidence against this claim. A November 2007 private emergency department note also indicates unlabored breathing and clear breath sounds bilaterally. In short, although the Veteran experienced trouble breathing as a symptom of an upper respiratory infection, the symptoms resolved prior to separation, and there are no complaints, symptoms, history, findings, diagnoses, or treatment of acid reflux disease during active service. The Board next finds that the weight of the evidence demonstrates that symptoms of impaired breathing and acid reflux disease have not been unremitting since separation from active service in February 2008. As noted above, a January 2008 service treatment record is negative for any symptoms of impaired breathing or acid reflux disease. Following service separation in February 2008, the evidence of record does not show any complaints, diagnosis, or treatment for acid reflux disease at all, and no complaints, diagnosis, or treatment for impaired breathing until November 2008, when the Veteran reported shortness of breath on exertion. However, the November 2008 private treatment note indicates normal respiratory and gastrointestinal examinations, and no diagnosis of a respiratory condition was made. Further, a May 2009 private treatment note indicates no shortness of breath and no gastrointestinal symptoms. The absence of post-service complaints, findings, diagnosis, or treatment for nine months in the case of impaired breathing and the absence of any complaints, findings, diagnosis, or treatment for acid reflux disease after service separation is one factor that tends to weigh against a finding of unremitting symptoms of impaired breathing or acid reflux disease after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had impaired breathing and acid reflux disease symptoms since separation from service in February 2008, the Board finds that, while the Veteran is competent to report the onset of impaired breathing and acid reflux disease symptoms, his recent reports of unremitting impaired breathing and acid reflux disease symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the statements of the Veteran as to unremitting impaired breathing and acid reflux disease symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of acid reflux disease or unremitting impaired breathing, negative respiratory and gastrointestinal examinations recorded in post-service November 2008 and May 2009 private treatment notes, the lack of any post-service documentation of treatment or diagnosis of impaired breathing for nine months after service separation, and the lack of any post-service documentation of treatment or diagnosis of acid reflux disease after service separation. Finally, in light of the lack of documentation of any report, findings, treatment, or diagnosis of acid reflux disease following service separation, as well as the November 2008 and May 2009 private treatment notes showing normal respiratory and gastrointestinal examinations, the greater weight of the probative evidence is against finding that the Veteran has a current disability manifesting impaired breathing and acid reflux disease. As a result, the claim must be denied. Most importantly, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as in this case, that holding would not apply. In this case, the best evidence simple does not indicate either disability currently exists or that the Veteran has every had a chronic disability associated with either condition. Service and post-service evidence provides particularly negative evidence against these claims, outweighing the Veteran's statements. Even if the Board assumes these disabilities currently exists, the weight of the competent evidence demonstrates no relationship between the Veteran's claimed impaired breathing and acid reflux disease and his military service, including no credible evidence of either an in-service disease or injury manifesting in impaired breathing or acid reflux disease (the former of which resolved prior to separation), unremitting symptoms of either impaired breathing or acid reflux disease during active service, unremitting impaired breathing or acid reflux disease following service separation, or a current disability manifesting impaired breathing or acid reflux disease. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for impaired breathing and acid reflux disease, and outweighs the Veteran's more recent contentions regarding in-service unremitting impaired breathing and acid reflux disease symptoms and post-service impaired breathing and acid reflux disease symptoms. The objective medical evidence in this case not only does not support the Veteran's claims put provides highly probative evidence against the claims, undermining the Veteran's credibility with the Board. For these reasons, service connection for impaired breathing and acid reflux disease must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for impaired breathing and acid reflux disease, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial Disability Rating Claims Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 provided 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, 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 disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 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) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is 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) provides that, in exceptional cases, an examiner may state that because of age, body habitus, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated 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. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The Diagnostic Codes relevant to the knee disability are 5003, 5010, and 5257-5261. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under Diagnostic Codes 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides 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 (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. As above, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25 ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales, 218 F.3d at 1380-81; Timberlake, 14 Vet. App. at 128-30. Cervical Spine Sprain Initial Disability Rating Analysis In the September 2008 rating decision on appeal, the Veteran was awarded a 10 percent initial disability rating for service-connected cervical spine sprain, effective from February 23, 2008 (the day after he separated from service), under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran contends that his cervical spine disability warrants a higher initial rating. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected cervical spine sprain for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected cervical spine disability did not manifest forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, 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, as required for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, for an evaluation in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The Veteran was involved in a motor vehicle accident in December 2007, while still in active service, and he reported a whiplash injury and subsequent neck pain at a level of 10 out of 10 in severity. He also reported numbness in his left hand fingers. A cervical spine x-ray study was normal. On physical examination, there was tenderness to palpation at C4 and C5, as well as in the trapezius, scalene, and paracervical muscles. Cervical spine pain was elicited by bilateral motion. Neurological examination was normal, and the cervical spine showed no weakness. The Veteran was diagnosed with a muscle spasm. In January 2008, one month prior to service separation, the Veteran continued to report constant neck pain, currently at a level of 10 out of 10 in severity. On physical examination, there was tenderness to palpation, and cervical spine pain was elicited by bilateral flexion, bilateral extension, bilateral rotation, and bilateral lateral bending. Neurological examination was again normal and there was no cervical spine weakness. He was diagnosed with a neck sprain. That same month, range of motion testing revealed flexion to 10 degrees, extension to 40 degrees, left and right lateral flexion to 10 degrees, left rotation to 20 degrees, and right rotation to 25 degrees. However, the examining clinician noted that range of motion measurements were not reliable secondary to the Veteran's unwillingness to move through pain, which is consistent with the Board's findings below. The clinician assessed mechanical neck pain, noting exaggerated pain behavior and pain behavior out of proportion to physical findings. In this regard, the Board has noted such statements within the claims file. In this regard, based on a review of all of the Veteran's claims, the Board must reach the following finding of fact: the Veteran is not an accurate historian of his alleged disabilities. The statement above clearly supports this finding. Following service separation, the Veteran was afforded a VA examination in October 2009. The VA examiner reviewed the service treatment records, noting the normal x-ray studies in December 2007. The Veteran reported daily pain at a level of 6 out of 10 in severity. He stated he took Ibuprofen, Hydrocodone, and Acetaminophen daily with some improvement. He further stated that any extreme neck movement caused more pain, as well as when he handled weights. He denied radiculopathy pain in the extremities, as well as paresthesias, paresis, or weakness of the extremities. On physical examination, there was no tenderness or paraspinal muscle spasm. Alignment of the cervical spine was normal. Flexion was to 40 degrees, extension to 40 degrees, right and left lateral flexion to 40 degrees, and right and left rotation to 70 degrees, with no pain. Repetitive movements were normal and not painful with no additional limitation. There were no focal neurological signs elicited in all extremities. There was no atrophy or wasting of the muscles, and sensation was intact. An x-ray study was normal. The VA examiner assessed a chronic strain of the cervical spine, and stated that joint function was not additionally limited by pain, weakness, fatigue, or lack of endurance after repetitive use. Moreover, the VA examiner stated that the cervical spine condition would not likely prevent him from doing his daily routine activities or sedentary jobs. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 10 percent for a cervical spine disability is not warranted for any period, as the requirements of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, 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, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. The Board acknowledges the measurement of cervical flexion to 10 degrees in January 2008; however, the examining clinician noted that the range of motion measurements recorded at that examination were not reliable secondary to the Veteran's exaggeration of pain, which the Board has found above. Thus, flexion, at worst, has been limited to 40 degrees, even taking pain into consideration and following repetition. Combined range of motion has been no worse than 300 degrees, which, the Board notes, does not even meet the criteria for a compensable disability evaluation. Moreover, the evidence of record does not demonstrate muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Finally, the evidence does not suggest that the Veteran has been ordered to bed rest by a physician at any time during the initial rating period on appeal. In reaching its finding that the evidence did not show flexion to 30 degrees or combined range of motion to 170 degrees or less for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 10 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the Veteran's report of daily pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2009 VA examiner noted no pain on range of motion testing, and that function and motion were not additionally limited after repetition, including due to pain, weakness, fatigue, or lack of endurance after repetitive use. Thus, even if the pain reported by the Veteran (but not reported or demonstrated on range of motion testing) is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. Further, the Veteran's failure to report pain on range of motion testing at the 2009 VA examination is highly probative evidence against his claim for a higher disability rating. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of daily pain. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 30 degrees or less, combined range of motion 170 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour) such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. While the Board understands the Veteran's central concern that he has a debilitating neck disability, it is important for the Veteran to understand that a 10 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a ten percent reduction in the Veteran's ability to function due to his neck pain. The critical question in this case, however, is whether the problems the Veteran has believably cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. Without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. Indeed, the Veteran's combined range of motion measurements do not even meet the minimum criteria for the currently assigned 10 percent disability evaluation. In this regard, his complaints are so unreliable as to place into question the 10 percent finding. As discussed above, the criteria for the currently-assigned 10 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is 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. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 10 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 20 percent, rating category - flexion to 30 degrees or less or combined range of motion to 170 degrees of less - even when taking into account additional loss of motion due to DeLuca factors. Moreover, even with such factors, there is no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, and there are no vertebral body fractures. For these reasons, the Board finds that an initial disability rating in excess of 10 percent is not warranted for any period. Next, the Board has considered whether an initial rating in excess of 10 percent is warranted under Diagnostic Code 5243 based on incapacitating episodes. As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder. In this case, the Veteran has not made any contentions of incapacitating episodes, and there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, the RO rated the Veteran's neck disability under Diagnostic Code 5237, which addresses a cervical strain. Diagnostic Codes 5242 and 5003 both address degenerative arthritis; however, arthritis has not been demonstrated in this case, as revealed by the multiple negative x-ray studies. Disabilities evaluated under Diagnostic Codes 5235, 5236, 5238, 5239, and 5240 are not applicable; even if they were, disabilities under these codes are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected neck disability. However, sensory and neurological examination of the extremities has been normal, and the Veteran denied any paresthesias, weakness, or other neurological symptoms in his extremities at the 2009 VA examination. Moreover, there have been no other reports of other disabilities associated with the neck disability. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 10 percent for a cervical spine sprain for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Lumbar Muscle Spasm Initial Disability Rating Analysis In the September 2008 rating decision on appeal, the Veteran was awarded a 10 percent initial disability rating for service-connected lumbar muscle spasm, effective from February 23, 2008 (the day after he separated from service), under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran contends that his lumbar spine disability warrants a higher initial rating. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected lumbar muscle spasm for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected lumbar spine disability did not manifest forward flexion of the thoracolumbar spine 60 degrees or less, 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, as required for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, for an evaluation in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. In November 2007, the Veteran reported constant low back pain with no precipitating injury. An x-ray study of the lumbar spine was normal. Several days later, in December 2007, the Veteran reported a popping sensation and sharp pain in his low back after lifting boxes the day prior. Since then, he reported a dull constant pain in the midline of the lumbar spine. He denied any radiation of pain, numbness, or tingling. On physical examination, there was tenderness to palpation. Range of motion in all directions was decreased, with pain in all directions. There were no muscle spasms. A straight leg raising test was negative. Neurological examination was normal. The clinician assessed low back pain. In January 2008, the Veteran reported ongoing back pain at a level of 10 out of 10 in severity. He stated that the pain was constant, and that the lumbar spasm had worsened with the December 2007 motor vehicle accident (described above). He stated that prolonged standing exacerbated his back pain. He also reported paresthesias in his toe on walking. On physical examination, there were muscle spasms over the iliolumbar region, and pain was elicited throughout range of motion. The following day, flexion of the lumbar spine was recorded at 30 degrees, extension was "neutral," left and right lateral flexion were to 10 degrees, and left and right rotation were to "25%." However, the examining clinician noted that the range of motion measurements were not reliable secondary to the Veteran's unwillingness to move through pain. The clinician assessed mechanical back pain, noting exaggerated pain behavior and pain behavior out of proportion to physical findings. A post-service January 2009 therapy status report indicates diagnoses of lumbar strain and lumbosacral strain. A May 2009 private treatment note indicates a diagnosis of degenerative joint disease of the lumbar spine. It was also noted that a straight leg raising test was negative, and that there was no reproducible spinal tenderness. As noted above, the Veteran was afforded a VA examination in October 2009. The VA examiner reviewed the service treatment records, noting the normal x-ray study in November 2007. The Veteran reported almost daily pain at a level of 8 out of 10 in severity. He stated he took Ibuprofen, Hydrocodone, and Acetaminophen daily with some improvement. He further stated that the back pain increased with frequent bending and when handling weights more than 40 to 50 pounds. He denied radiculopathy pain in the extremities, as well as paresthesias, paresis, or weakness of the extremities. He stated he used a back brace on and off, and that he was able to perform activities of daily living and the usual duties of his occupation. He denied any incapacitating episodes or prolonged immobilizations. On physical examination, there was minimal tenderness and no paraspinal muscle spasm. Alignment of the lumbar spine was normal. Flexion was to 80 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 25 degrees, with no pain. Repetitive movements were normal and not painful with no additional limitation. A straight leg raising test was positive at 70 degrees on both sides. There were no focal neurological signs elicited in the lower extremities. There was no atrophy or wasting of the muscles, and sensation was intact. Muscle power was normal. An x-ray study was normal. The VA examiner assessed a chronic strain of the lumbar spine, and stated that joint function was not additionally limited by pain, weakness, fatigue, or lack of endurance after repetitive use. Moreover, the VA examiner stated that the lumbar spine condition would not likely prevent him from doing his daily routine activities or sedentary jobs. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 10 percent for a lumbar spine disability is not warranted for any period, as the requirements of forward flexion of the thoracolumbar spine 60 degrees or less, 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, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. Again, the Board acknowledges the measurement of lumbar flexion to 30 degrees in January 2008; however, the examining clinician noted that the range of motion measurements recorded at that examination were not reliable secondary to the Veteran's exaggeration of pain. Thus, flexion, at worst, has been limited to 80 degrees, even taking pain into consideration and following repetition. Combined range of motion has been no worse than 190 degrees. Moreover, the evidence of record does not demonstrate muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Finally, the evidence does not suggest that the Veteran has been ordered to bed rest by a physician at any time during the initial rating period on appeal. In reaching its finding that the evidence did not show flexion to 60 degrees or combined range of motion to 120 degrees or less for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 10 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the Veteran's report of almost daily pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2009 VA examiner noted no pain on range of motion testing, and that function and motion were not additionally limited after repetition, including due to pain, weakness, fatigue, or lack of endurance after repetitive use. Thus, even if the pain reported by the Veteran (but not reported or demonstrated on range of motion testing) is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. Further, as above, the Veteran's failure to report pain on range of motion testing at the 2009 VA examination is highly probative evidence against his claim for a higher disability rating. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of daily pain. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 60 degrees or less, combined range of motion 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour) such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. Again, while the Board understands the Veteran's central concern that he has a debilitating back disability, it is important for the Veteran to understand that a 10 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a ten percent reduction in the Veteran's ability to function due to his back pain. The critical question in this case, however, is whether the problems the Veteran has believably cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. Without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. In fact, the current evaluation is in question in light of the findings above. As discussed above, the criteria for the currently-assigned 10 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is 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. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 10 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 20 percent, rating category - flexion to 60 degrees or less or combined range of motion to 120 degrees of less - even when taking into account additional loss of motion due to DeLuca factors. Moreover, even with such factors, there is no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, and there are no vertebral body fractures. For these reasons, the Board finds that an initial disability rating in excess of 10 percent is not warranted for any period. Next, the Board has considered whether an initial rating in excess of 10 percent is warranted under Diagnostic Code 5243 based on incapacitating episodes. As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder. In this case, the Veteran has denied any incapacitating episodes, and there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, the RO rated the Veteran's back disability under Diagnostic Code 5237, which addresses a lumbosacral strain. Diagnostic Code 5003 addresses degenerative arthritis. In this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. Diagnostic Code 5242 is potentially applicable as it also addresses degenerative arthritis. However, disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. Disabilities evaluated under Diagnostic Codes 5235, 5236, 5238, 5239, and 5240 are not applicable; even if they were, disabilities under these codes are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected neck disability. Although the Veteran reported paresthesias in his toes on walking, sensory and neurological examination of the extremities has been normal, and the Veteran denied any paresthesias, weakness, or other neurological symptoms in his lower extremities (other than his toes) at the 2009 VA examination. Moreover, there have been no other reports of other disabilities associated with the back disability. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 10 percent for a lumbar muscle spasm for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Right Knee Sprain Initial Disability Rating Analysis In the September 2008 rating decision on appeal, the Veteran was awarded a noncompensable initial disability rating for service-connected right knee sprain, effective from February 23, 2008 (the day after he separated from service), under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran contends that his knee disability warrants a higher initial rating. The Board will begin by reviewing the evidence most pertinent to the initial rating period on appeal. In November 2007, while in active service, the Veteran reported right knee pain with prolonged running, standing, and squatting. He stated the pain started gradually and improved with rest. He denied any grating sensation or popping sounds in the knee. On physical examination, there was no swelling, induration, edema, erythema, warmth, dislocation, or deformity. The patella was normal. There was no muscle spasm, and range of motion was normal in all planes. No pain was elicited by motion of the knee. There was no instability. A McMurray test was negative, as was a patella femoral grinding test. There was no muscle weakness and no tenderness to palpation. An x-ray study was normal. The clinician assessed knee joint pain. The Veteran was afforded a VA examination in October 2009. He reported knee pain several times per week at a level of 3 to 4 out of 10 in severity. He also felt a frequent popping sensation in the knee. He denied swelling, giving out, and locking. He did not wear a knee brace or splint and did not use any assistive devices for walking. He stated he was not taking any pain medication for the knee pain. He denied any restriction in his daily activities or usual duties of his occupation. He further denied any incapacitating episodes or flare-ups of pain. On physical examination, there was no swelling, tenderness, redness, warmth, or crepitus. There was no joint effusion. Patellar apprehension test was negative. There was no genu varus or valgus deformity. Extension was to zero degrees and flexion was to 130 degrees without pain. Repetitive movements were normal and not painful with no additional limitation. There was no instability, and no signs of inflammatory arthritis or ankylosis. There was no obvious wasting or atrophy of the muscles around the knee. Muscle power was normal. An x-ray study of the right knee was negative. The Board must once again note a similar pattern: the Veteran's complaints of pain and other problems with no objective evidence that support his complaints. While there are some problems that may occur that do not have objective residuals, the fact that in the Veteran's case this occurs with some regularity, with notations in the record regarding exaggeration of complaints, raises some highly difficult questions regarding the Veterans accuracy as an historian of his alleged disabilities. On the question of whether the Veteran is entitled to a higher disability rating for his knee disability, the Board notes that arthritis and limitation of motion, including motion limited by pain and other orthopedic factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca are to be rated as part of one disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5003. Instability of the knee, which does not include painful limitation of the knee as part of the rating criteria, is a distinct disability. See VAOPGCPREC 23-97 and 9-98. With further regard to the question of whether the Veteran is entitled to a compensable evaluation for the right knee disability based on the evidence of record relevant to the rating period on appeal, outlined above, the right knee sprain is rated at zero percent under Diagnostic Code 5260, which contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 60, 45, 30, and 15 degrees, disability ratings of 0, 10, 20, and 30 percent, respectively, are assigned. 38 C.F.R. § 4.71a.. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against a compensable rating under Diagnostic Code 5260. In this case, the evidence shows that the Veteran had flexion to no worse than 130 degrees throughout the initial rating period on appeal. As noted above, painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. However, the 2009 VA examiner noted no pain on range of motion testing, and that range of motion was not additionally limited after repetition. Thus, even if pain (which, in this case, was absent) is taken into account, there is no credible evidence of record demonstrating flexion limited to 45 degrees or less (the minimum criterion for a compensable evaluation under Diagnostic Code 5260). As the criteria for even a noncompensable disability rating under Diagnostic Code 5260 (limitation of flexion to 60 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support the assignment of an initial compensable disability rating under Diagnostic Code 5260 for a right knee sprain for any period. 38 C.F.R. § 4.71a. The Board has also considered whether any other diagnostic code would allow for a compensable disability rating for the Veteran's right knee sprain, manifested by limitation of motion, pain, or other orthopedic factors such as weakness or fatigability. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 5, 10, 15, 20, 30 and 45 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had extension to no worse than zero degrees throughout the rating period on appeal, taking any additional limitation due to pain after repetition (which, in this case, was none) into account. In addition, no other evidence of record shows extension measured to less than zero degrees. As the criteria for even a noncompensable disability rating under Diagnostic Code 5261 (limitation of extension to 5 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support the assignment of a compensable disability rating under Diagnostic Code 5261 for a right knee sprain for any period. 38 C.F.R. § 4.71a. In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5003 for a right knee sprain, including the pain the Veteran has reported. Diagnostic Code 5003 provides 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 (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a compensable evaluation is only assigned when there is x-ray evidence of involvement of two or more major or minor joint groups. Here, neither the flexion nor extension measurements of the knee meet the minimum criteria for compensable evaluations under Diagnostic Codes 5260 or 5261. Flexion has been no worse than 130 degrees, and extension no worse than zero degrees. Moreover, limitation of motion has not been confirmed by the presence of swelling, muscle spasm, or painful motion. Indeed, the 2009 VA examiner noted that the Veteran had no pain on either flexion or extension, including after repetition. Further, because there is only one major joint involved (the knee), and there are no incapacitating exacerbations, the Veteran does not meet the criteria for a 10 percent disability evaluation under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Thus, a compensable disability rating is not possible under Diagnostic Code 5003. The Board has also considered whether there are any diagnostic codes related to knee instability that would allow for an initial compensable disability rating for the right knee disability. Under Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The Veteran reported a popping sensation in his knee at the 2009 VA examination, although he denied any popping in the knee in November 2007. However, he has consistently denied giving out of the knee. Further, no ligamentous laxity has been found on examination at any time during the rating period on appeal. Thus, in light of the consistently negative findings on ligament testing, the Veteran does not meet the criteria for a compensable disability evaluation under Diagnostic Code 5257. Diagnostic Code 5259 contemplates symptomatic removal of semilunar cartilage (meniscus). A 10 percent rating is the maximum (and only) available rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a. However, the evidence does not demonstrate that the Veteran has undergone such a procedure. Thus, Diagnostic Code 5259 does not allow for a compensable evaluation for the Veteran's right knee sprain. Further, Diagnostic Code 5258, which contemplates dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint, does not apply. In November 2007, the clinician noted a negative McMurray's test. Moreover, no other evidence has suggested the presence of a meniscal tear or dislocation. Thus, Diagnostic Code 5258 does not allow for a compensable evaluation for the Veteran's right knee sprain. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. The Board has also considered whether any separate ratings are available based on the evidence. In so doing, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. In the present case, the evidence does not establish loss of flexion or extension to a even a noncompensable degree; thus, assignment of separate evaluations for limitation of flexion and extension of the knee is not appropriate here. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98 (when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain). In this case, however, there is no evidence of x-ray findings of arthritis, as the 2007 and 2009 x-ray studies were both negative. Further, there is no evidence of either subluxation or instability, as discussed above. Thus, the assignment of separate disability ratings under Diagnostic Codes 5003 and5257 is precluded. 38 C.F.R. § 4.71a. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's cervical spine, lumbar spine, and knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's cervical and lumbar spine disabilities have manifested in painful movement. The schedular criteria for rating the cervical and lumbar spine disabilities (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the cervical and lumbar spine to the rating schedule, the degree of disability of the cervical and lumbar spine throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The Veteran's knee disability has manifested in painful motion. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for noncompensable limitation of motion due to painful arthritis (DC 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited due to orthopedic factors such as pain, guarding of movement, and fatigability (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the knee to the rating schedule, the degree of disability of the knee throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. Beyond the above, the Board has considered the issue of whether unemployability (TDIU) has been raised by the record and well as the question of the Veteran's overall credibility. In this regard, the Board must note no indication that the issue of TDIU has been raised by this record. The Veteran has noted significant problems with his service connected disabilities, yet seeks a minimum amount of treatment for his alleged problems (if any). Serious questions regarding the Veteran's overall credibility have been raised by this record. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the cervical spine, lumbar spine, and knee disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. Because the appeal as to the disability ratings for the cervical spine, lumbar spine, and knee disabilities arises from the Veteran's disagreement with the initial evaluations following the grant of service connection for those disabilities, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the service connection claims, in a timely April 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. The Veteran has been afforded an adequate examination on the issue of rating the cervical spine, lumbar spine, and right knee disabilities. VA provided the Veteran with an examination in October 2009. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include review of x-ray studies. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. Therefore, the Veteran has been afforded an adequate examination on the increased rating issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for impaired breathing or acid reflux disease; however, the Board finds that a VA examination is not necessary in order to decide these issues. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for acid reflux disease, and symptoms of impaired breathing, which were associated with an upper respiratory infection, resolved prior to separation. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to acid reflux disease in service and that symptoms of impaired breathing were not unremitting during service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of impaired breathing or acid reflux disease in service and no unremitting symptoms of impaired breathing or acid reflux disease since service separation. Further, the Board finds that there is no current disability manifesting impaired breathing or acid reflux disease. Because there is no in-service injury or disease to which a competent medical opinion could relate any current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection for impaired breathing and acid reflux disease. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury and a current disability, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed impaired breathing and acid reflux disease would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed impaired breathing or acid reflux disease and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the impaired breathing and acid reflux disease claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for impaired breathing is denied. Service connection for acid reflux disease is denied. An initial disability rating in excess of 10 percent for a cervical spine sprain is denied. An initial disability rating in excess of 10 percent for a lumbar muscle spasm is denied. An initial compensable disability rating for a right knee sprain is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs