Citation Nr: 1321483 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 06-15 345 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for claimed syringoma. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected Baker's cyst of the left knee and status post ACL repair prior to December 2, 2011. 3. Entitlement to a rating in excess of 20 percent for the service-connected Baker's cyst of the left knee and status post ACL repair beginning on December 2, 2011. 4. Entitlement to an initial rating in excess of 10 percent for the service-connected lumbar spine strain with moderate degenerative desiccation and bulging at L5-S1. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from October 1983 to October 2003. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision issued by the RO that, in pertinent part, granted service connection for the left knee and lumbar spine disabilities and assigned noncompensable ratings for each, effective on November 1, 2003. In the January 2005 rating decision, the RO also denied the Veteran's claim of service connection for syringoma. In an April 2006 rating decision, the RO assigned the service-connected left knee and lumbar spine disabilities separate ratings of 10 percent, effective on November 1, 2003. In a February 2012 rating decision, the RO increased the rating for the service-connected left knee disability to 20 percent, effective on December 2, 2011. As higher schedular ratings are available, the issues remain before the Board on appeal and have been characterized as noted. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in November 2006; a transcript of the hearing is associated with the claims file. In September 2010 and November 2012, the Board remanded these issues for additional development of the record. The development has been completed, and the case has been returned to the Board for the purpose of appellate disposition. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of service connection for disabilities of the right middle finger and wrist have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and once again refers the matters to the AOJ for appropriate and timely action. FINDINGS OF FACT 1. The Veteran is not shown to have current disability due to the syringoma that was successfully treated during his period of active service. 2. The service-connected left knee disability picture is shown to have been productive of a functional loss due to pain that more nearly approximated that of flexion limited to 30 degrees for the initial period of the appeal. 3. The service-connected lumbar spine disability picture is shown to have been productive of a functional loss due to pain that more closely resembles that of limitation of forward flexion to less than 60 degrees, but more than 30 degrees with muscle spasm; neither a restriction of thoracolumbar flexion to less than 30 degrees, nore incapacitating episodes due to intervertebral disc disease are demonstrated. CONCLUSIONS OF LAW 1. The Veteran is not shown to have a disability manifested by syringoma due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for the assignment of a 20 percent rating for the service-connected Baker's cyst of the left knee and status post ACL repair prior to December 2, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a including Diagnostic Code (DC) 5258, 5260 (2011). 3. The criteria for the assignment of a rating in excess of 20 percent for the service-connected Baker's cyst of the left knee and status post ACL repair are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a including Diagnostic Code (DC) 5258, 5260 (2011). 4. The criteria for the assignment of a rating of a rating of 20 percent, but no more the service-connected lumbar spine strain with moderate degenerative desiccation and bulging at L5-S1 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice is not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a June 2004 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal, in pertinent part, stems from the initial grant of service connection for left knee and lumbar spine disabilities, the notice letter did not contain an explanation of the general rating criteria relevant to his left knee and lumbar spine. A February 2012 Supplemental Statement of the Case (SSOC) set forth applicable criteria for rating the service-connected left knee and lumbar spine disabilities. After providing the Veteran with an opportunity to respond, the March 2013 SSOC reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private treatment records, VA treatment records and examination reports. Further, the Board is aware that this appeal was, most recently, remanded by the Board in November 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand requested that the RO schedule the Veteran for contemporaneous VA examinations to determine the nature and etiology of his claimed syringoma as well as the severity of his service-connected left knee and lumbar spine disabilities. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and appearing for VA examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect as to the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Finally, during the hearing, the DRO clarified the issues and addressed the Veteran's contentions regarding the issues decided herein. It was clear from the hearing that the parties understood the issues. Such action supplemented VCAA development and complies with 38 C.F.R. § 3.103. Laws and Regulations-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's service treatment records show that he received treatment for skin lesions near the eyelids in October 1991. A subsequent punch biopsy showed findings of syringoma. Subsequent service treatment records reflect that the Veteran underwent a regiment of treatment with trichloroacetic acid (TCA) 60 percent application for removal of the syringoma. The August 2003 Retirement examination noted that clinical evaluation of the eyes and skin was normal. Subsequent to service, the Veteran contends that he has current syringoma causally related to his period of service. However, despite the noted in-service syringoma, there is no medical evidence of current syringoma or residuals thereof. In a December 2011 report of VA skin diseases examination, the examiner stated that "syringomas were treated during service and that there ha[d] not been a recurrence. The Veteran [did] not have current disability due to syringomas." The February 2013 report of VA skin diseases confirmed that there was "no syringoma apparent on examination." The examiner indicated that the Veteran did not currently have any residual condition or complication due to the previous syringoma. Given its review of the record, the Board finds that the claim of service connection for syringoma must denied. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The only evidence of record supporting the Veteran's claim are his various lay assertions. Although the Veteran is competent to provide evidence of observable manifestation or symptoms, he is not competent to provide an opinion that requires medical knowledge or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran, as a layperson, is not qualified to provide a medical diagnosis or opinion that alone is sufficient to establish the he currently suffers from syringoma due to his period of service. As such, his current lay statements are found to be of limited probative value in this case. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable regarding this issue on appeal because the preponderance of the evidence is against his claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, on this record, claim of service connection for syringoma must be denied. Laws and Regulations-Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 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. Left Knee In the January 2005 rating decision, the RO granted service connection for Baker's cyst of the left knee and status post ACL repair. A noncompensable disability rating was awarded effective on November 1, 2003. Notably, the noncompensable rating was assigned pursuant to Diagnostic Code 5260 for "limitation of flexion of the leg." See 38 C.F.R. § 4.71a. In an April 2006 rating decision, the RO increased the rating to 10 percent, effective on November 1, 2003. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The service-connected left knee disability was always evaluated under Diagnostic Code 5260. During the course of the current appeal, the RO, in a February 2012 rating decision, evaluated the left knee disability pursuant to Diagnostic Codes 5260-5258. The RO increased the rating to 20 percent, effective on December 2, 2011. As this increase did not constitute a full grant of the benefit sought, the Veteran's claim remains on appeal. See AB v. Brown supra. In any event, the Board notes that hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. 38 C.F.R. § 4.71a, Diagnostic Code 5260 is applicable to limitation of flexion of the leg, and Diagnostic Code 5258 is applicable to semilunar dislocated cartilage with frequent episodes of "locking" pain and effusion into the joint. Under Diagnostic Code 5260 (limitation of flexion of the leg), a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. A separate evaluation may also be assigned for instability. See 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5258, a 20 percent rating is the maximum rating assigned for dislocated, semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint. Analysis A July 2004 report of VA examination noted the Veteran's complaint of stiffness and pain (after walking) in the left knee in the morning. He described the intensity of the pain as a level 4 (on a scale from 1 to 10) with flare-ups of pain increasing the intensity level of the pain to a level 6 (on a scale from 1 to 10). Objectively, he had a normal range of motion, but with crepitation. A March 2005 emergency department record documents that the Veteran received treatment for complaints of left knee pain and swelling. In an April 2005 statement, a private examiner reported that the Veteran had developed sudden pain and swelling in his left knee. The examiner noted the Veteran's in-service symptomatology. Reportedly, the Veteran had been unable to carry out his employment duties (loading trucks) due to the knee pain. Objectively, there was one-plus swelling of the left knee with a range of motion from 0 degrees (extension) to 110 degrees (flexion). There was no specific joint line tenderness. The X-ray studies showed no joint space narrowing. A March 2006 report of VA examination noted the Veteran's complaint of sharp, medial compartment knee pain with some episodes of locking. He had no complaints of instability. Objectively, the range of motion of the left knee was noted to be from 5 degrees (on extension) to 125 degrees (on flexion) with pain at both extremes. There was no evidence of instability. A March 2006 X-ray report showed findings of mild tricompartmental degenerative joint disease of the left knee. A November 2006 report of VA examination documented the Veteran's complaint of left knee pain. On examination, the range of motion of the knee was from 0 degrees (on extension) to 110 degrees (on flexion). He was able to repeat the motion without difficulty or pain. He did have some crepitation. The Veteran experienced pain on occasion with repeated heavy activity, but had no instability. He also experienced intermittent pain with weather changes. Corticosteroid injection provided some pain relief. A December 2011 report of VA examination noted the Veteran's complaint of moderate to severe left knee pain on a daily basis. The precipitating factors of the left knee pain included increased or unusual physical activity and inclement weather. Alleviating factors of the left knee pain included rest, ice, elevation and pain medications. On examination, the Veteran had flexion of the left knee that was limited to 90 degrees, with objective evidence of painful motion beginning at 75 degrees. He had full extension with evidence of painful motion at full extension. After repetitive testing, flexion of the left knee was limited to 80 degrees and full extension. Pain on movement, less movement than normal, swelling and weakened movement contributed to the Veteran's functional impairment and limitation of range of motion of the left knee disability. The Veteran had tenderness or pain on palpation of joint line or soft tissue of his knee. He had no instability of the left knee or evidence or history of recurrent patellar subluxation/dislocation. The examiner indicated that he had a history of shin splints (medial tibial stress syndrome), but no current symptoms. A February 2013 report of VA examination noted the Veteran's complaint of left knee pain that flared with weather changes and overexertion. The left knee flare-ups of pain generally lasted one day and were manifested by a decreased range of motion and endurance and increased pain. Medication offered relief. On examination, the Veteran had flexion of the left knee limited to 90 degrees, with no objective evidence of painful motion. He had full extension with no objective evidence of painful motion. After repetitive testing, the Veteran had no additional limitation in range of motion of the left knee. Less movement than normal contributed to the Veteran's functional impairment and limitation of range of motion of the left knee disability. The Veteran did not have tenderness or pain to palpation for joint line or soft tissue of his knee, instability of the left knee or evidence or a history of recurrent patellar subluxation/dislocation. In this case, the Board finds that the medical and lay evidence reflects that the Veteran's left knee disability warrants an increased rating of 20 percent prior to December 2, 2011, in that the severity of the service-connected left knee disability is not shown to have changed significantly during the course of his appeal. In light of the Veteran's consistent reports of pain and evidence that flexion of the left knee was additionally decreased by up to 10 degrees due to pain following repetitive movement (December 2011 VA examination), the Board finds that the service-connected disability picture is manifested by functional loss due to pain and episodes of flare ups that more nearly resembled that of flexion restricted to 30 degrees. Therefore, the service-connected left knee disability warrants a 20 percent rating for the initial period of the appeal. The Board also finds that the evidence does not reflect that the service-connected left knee disability has resulted in an actual limitation of motion or functional loss due to pain or during flares that equates with flexion limited to 15 degrees. Rather, flexion was noted to be limited to 90 degrees (with objective evidence of painful motion beginning at 75 degrees). After repetitive testing, flexion was limited to 80 degrees. As the Veteran has demonstrated limitation of extension to no worse than 5 degrees, a separate rating for limitation of extension is not warranted. Neither ankylosis nor other impairment of the tibia or fibula is demonstrated; thus, a rating in excess of 20 percent under those diagnostic codes is not warranted. The Board is aware that separate ratings for limitation of motion and instability may be assigned. See VAOPGCPREC 23-97; see also VAOPGCPREC 9-98. However, given that instability of the left knee is not objectively demonstrated, a separate rating is not warranted. To the extent that the Veteran asserts having increased left disability, the Board finds that his lay statements are reasonably addressed by the currently assigned rating of 20 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has pain on use and limited motion. For all the foregoing reasons, the Board finds that 20 percent, but no higher, rating for the service-connected Bakers cyst of the left knee and status post ACL repair is assigned for the initial period of the appeal. Lumbar Spine In the January 2005 rating decision, the RO granted service connection for lumbar spine strain with findings of moderate degenerative desiccation and bulging at L5-S1. A noncompensable disability rating was awarded effective November 1, 2003. In an April 2006 rating decision, the RO increased the rating to 10 percent, effective on November 1, 2003. See AB v. Brown, 6 Vet. App. at 39 (1993). The initial rating for the service-connected lumbar spine disability has been assigned pursuant to diagnostic code (DC) 5237. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating diseases and injuries of the spine. See 38 C.F.R. § 4.71a. Under the formula, 10 percent evaluation is warranted for 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. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is in order for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is in order for unfavorable ankylosis of the entire spine. Under the formula the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Painful motion is an important factor of disability, and 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. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Analysis A July 2004 report of VA examination noted the Veteran's complaint of constant low back pain. He described the intensity of the pain as a level 7 (on a scale from 1 to 10) with flare-ups of pain increasing the intensity level of the pain to a level 9 (on a scale from 1 to 10). Objectively, the range of motion was noted to be that of flexion was performed to 90 degrees (with aching at the endpoint) with extension, lateral bending and rotation all to 30 degrees without pain. There was no sciatica. A March 2006 report of VA examination noted the Veteran's complaint of intermittent, recurrent bouts of low back pain located in his low back/buttock area. The pain did not radiate into his legs or cause any loss of bowel or bladder control or had any incapacitating episodes. Objectively, the Veteran had some paraspinal muscle tenderness, but did not have any bony tenderness of his lumbar spine. The range of motion was that of 90 degrees of forward flexion, 30 degrees of extension, and 30 degrees of lateral bending and 40 degrees of rotation, bilaterally. He had full motor strength, and the sensory examination was normal in the extremities. A November 2006 report of VA examination noted the Veteran's complaint of lumbar spine pain. He experienced flares of lumbar pain approximately once per month after engaging in aggressive activity causing him to be "laid up" for approximately five to seven days. Flexeril and Vicodin did alleviate his symptoms. He denied any radicular pain. Objectively, the Veteran's range of motion was that of 100 degrees of forward flexion and 20 degrees of extension (with mid lumbar discomfort). He could repeat the range of motion without decrease. He had full motor strength, and the sensory examination was normal in the extremities. A December 2011 report of VA examination noted the Veteran's complaint of mild to severe back pain on a daily basis. Precipitating factors of the back pain included increased or unusual physical activity and inclement weather. Alleviating factors of the back pain included rest, warmth and pain medications. On examination, the range of motion was that of forward flexion to 70 degrees (with objective evidence of painful motion at 65 degrees), extension to 20 degrees (with objective evidence of painful motion at 15 degrees), right lateral flexion to 20 degrees (with objective evidence of painful motion at 15 degrees), left lateral flexion to 25 degrees (with objective evidence of painful motion at 20 degrees), right lateral rotation to 20 degrees (with objective evidence of painful motion at 15 degrees) and left lateral rotation to 20 degrees (with objective evidence of painful motion at 15 degrees). After repetitive testing, the Veteran's range of motion was that of forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees (with objective evidence of painful motion at 15 degrees). Pain on movement and less movement than normal contributed to the Veteran's functional impairment and limitation of range of motion for the lumbar spine. The Veteran had tenderness or pain of palpation of the joints and/or soft tissue of his lumbar spine. Additionally, he had guarding or muscle spasm of the lumbar spine. The Veteran's muscle strength, reflex and sensory examinations were unremarkable. The Veteran did experience moderate right lower extremity radiculopathy; however, he did not have any other neurologic abnormalities or findings related to a lumbar spine disorder. He did not have intervertebral disc syndrome. The X-ray study results showed that of "minimal scoliosis of the lumbar spine, question positional." A February 2013 report of VA examination noted the Veteran's complaint of flare-ups of back pain with weather changes and overexertion. The pain lasted approximately 2 days and resulted in increased pain and decreased mobility. On examination, range of motion was noted to be that of forward flexion to 80 degrees (with no objective evidence of painful motion), extension to 20 degrees (with no objective evidence of painful motion), right lateral flexion to 20 degrees (with no objective evidence of painful motion), left lateral flexion to 20 degrees (with no objective evidence of painful motion), right lateral rotation to 20 degrees (with no objective evidence of painful motion) and left lateral rotation to 20 degrees (with no objective evidence of painful motion). After repetitive testing, there was no additional limitation in range of. Less movement than normal contributed to the Veteran's functional impairment and limitation of range of motion of the lumbar spine. The Veteran did not have tenderness or pain on palpation of the joints and/or soft tissue of his lumbar spine or guarding or muscle spasm of the lumbar spine. Muscle strength, reflex and sensory examination were unremarkable. The Veteran did not experience any lower extremity radiculopathy. The Veteran also did not have any other neurologic abnormalities or findings related to the service-connected lumbar spine disability. He did not have intervertebral disc syndrome. There were no significant diagnostic test findings and/or results. In order to warrant a 20 percent evaluation there must be evidence of the functional equivalent of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Based on the evidence of record, the Board finds that the assignment of a rating of 20 percent is warranted for the service-connected low back disability for the period of the appeal in this case. In this regard, the evidence establishes that the service-connected low back disability picture is productive of a functional loss due to pain that more closely resembles that of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While recent findings noted a limitation of forward flexion to 80 degrees without objective evidence of painful motion), the findings did not fully address the extent of the limited function due to pain, after repetitive motion or during flare ups. Moreover, the Veteran is shown to have experienced recurrent episodes of muscle spasm. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, his lay statement alone do not serve to establish as level of impairment that would permit the assignment of a rating higher than 20 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For all the foregoing reasons, an increased rating of 20 percent but no more for the service-connected lumbar spine disability is warranted for the period of the appeal. Extraschedular Consideration The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point have the disabilities been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The discussion here reflects that the symptoms of the service-connected left knee and lumbar spine disabilities are reasonably contemplated by the applicable rating criteria in light of currently assigned ratings. Therefore, referral for consideration of an extraschedular rating for left knee and lumbar disabilities is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Service connection for the claimed syringoma is denied. An increased rating of 20 percent, but not higher for the service-connected Baker's cyst of the left knee and status post ACL repair, prior to December 2, 2011 is granted, subject to controlling regulations governing the payment of VA monetary benefits. An increased rating in excess of 20 percent for the service-connected Baker's cyst of the left knee and status post ACL repair beginning on December 2, 2011 is denied. An increased rating of 20 percent, but not higher for the service-connected lumbar spine strain with moderate degenerative desiccation and bulging at L5-S1for the initial period of the appeal is granted, subject to the regulations controlling disbursement of VA monetary benefits. . ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs