Citation Nr: 1322157 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-41 056 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for cervical spine spur at C5. 2. Entitlement to an initial evaluation in excess of 10 percent for a degenerative spurring of the lumbar spine at L3-L4. 3. Entitlement to an initial evaluation in excess of 10 percent for residuals of left knee surgery with scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty for training from June 1986 to October 1986 and on active duty from September 1987 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the RO. That decision, in pertinent part, granted service connection for cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 and residuals of left knee surgery with scar and assigned noncompensable disability ratings for each disability effective from June 1, 2007. The RO increased the evaluation for the Veteran's cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 and residuals of left knee surgery with scar in an August 2012 rating decision to 10 percent for each disability, respectively, effective from June 1, 2007. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues remain on appeal. The Veteran's appeal originally included the issue of service connection for residuals of a left shoulder disorder. During the pendency of the appeal, the RO, in an August 2012 rating decision, granted service connection for left shoulder dislocation and assigned a 10 percent rating for the disability, effective on June 1, 2007. Therefore, his appeal concerning the issue of service connection for left shoulder dislocation has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). 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. FINDINGS OF FACT 1. Remaining cervical flexion is greater than 30 degrees and the combined range of motion is greater than 170 degrees. The Veteran does not have an abnormal gait or spinal contour. 2. Remaining lumbar flexion is greater than 60 degrees and the combined range of motion is greater than 120 degrees. The Veteran does not have an abnormal gait or spinal contour. 3. The Veteran has full extension of his left knee. The functional equivalent of limitation of extension of the left knee to 15 degrees is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for cervical spine spur at C5 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for degenerative spurring of the lumbar spine at L3-L4 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for an initial evaluation in excess of 10 percent for residuals of left knee surgery with scar have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, 4.118, Diagnostic Codes 7802-5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 and residuals of left knee surgery with scar. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues of entitlement to higher initial evaluations for his cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 and residuals of left knee surgery with scar. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any available, outstanding records that are relevant to the claims being decided herein. The Veteran was also afforded VA examinations in October 2007 and June 2012 in connection with his current claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2012 VA examination is adequate, as it is predicated on a review of the claims file and all pertinent evidence of record as well as on an examination, and fully addresses the rating criteria that are relevant to rating the disabilities in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC and a SSOC, which informed them of the laws and regulations relevant to the Veteran's claims. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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). Here the disabilities have not significantly changed and a uniform evaluation is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Spine The RO evaluated the Veteran's cervical and lumbar spine disabilities under diagnostic codes (DC) 5237 and 5243, the criteria for evaluating cervical strain and intervertebral disc syndrome. 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, 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 evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted 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 evaluation is in order for unfavorable ankylosis of the entire thoracolumbar 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 and the normal combined range of motion of the cervical spine is 340 degrees. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Also under the formula, intervertebral disc syndrome can either be evaluated under the general rating formula as noted above or based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a 10 percent rating is warranted for intervertebral disc syndrome 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 rating is warranted for intervertebral disc syndrome 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 rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months s. A 60 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. A. Cervical Spine Spur at C5 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher evaluation for his cervical spine spur at C5. The Veteran is currently assigned a 10 percent disability evaluation. The evidence does not show that the Veteran has forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, the October 2007 VA examination revealed that he had full range of motion of the cervical spine with no pain on motion. The June 2012 VA examination documented the Veteran as having forward flexion to 45 degrees with no objective evidence of painful motion. Additionally, the combined range of motion of his cervical spine was 275 degrees and the Veteran had no guarding or muscle spasm of the cervical spine. Thus, a higher evaluation is not warranted under Diagnostic Code 5237. Further, given that the Veteran is not shown to have experienced any incapacitating episodes of disc disease of the cervical spine, a rating in excess of 10 percent based on incapacitating episodes is not warranted under Diagnostic Code 5243. Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a higher evaluation for the Veteran's service-connected cervical spine spur at C5 is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain. However, the effect of the pain in the Veteran's cervical spine spur at C5 was contemplated in the assigned 10 percent disability evaluation under Diagnostic Codes 5237. See 38 C.F.R. § 4.59. Indeed, the August 2012 rating decision specifically granted the 10 percent rating based on painful motion. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The June 2012 VA examination documents that the Veteran did not have additional limitation in range of motion of the cervical spine following repetitive -use testing and the Veteran did not have functional loss and/or impairment of the cervical spine due to fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence, discussed above, to be more probative than his lay assertions in determining that his cervical spine spur at C5 does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has specifically considered the appellant's pleadings to include that he was told to stretch through the pain, that the muscles are tighter on the right side and that he has constant pain. However, the current evaluation contemplates pain on motion and flexion of the cervical spine greater than 30 degrees. Nothing in the pleadings or the medical evidence suggests that flexion is functionally limited to 30 degrees or less or that the combined range of motion is 170 degrees or less. Furthermore, there is no lay or medical evidence of an abnormal gait or spinal contour. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated. The Veteran has not complained of radiating pain or other neurological abnormalities. Accordingly, a separate evaluation for neurologic manifestations is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial evaluation for his cervical spine spur at C5. B. Degenerative Spurring of the Lumbar Spine at L3-L4 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher evaluation for his degenerative spurring of the lumbar spine at L3-L4. The Veteran is currently assigned a 10 percent disability evaluation. The evidence does not show that the Veteran has 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. Rather, the October 2007 VA examination revealed that he had full range of motion of the lumbar spine with no pain on motion. The June 2012 VA examination documented the Veteran as having forward flexion to 90 degrees with no objective evidence of painful motion. Additionally, the combined range of motion of his lumbar spine was 240 degrees and the Veteran had no guarding or muscle spasm of the lumbar spine. Thus, a higher evaluation is not warranted under Diagnostic Code 5243 for limitation of range of motion. Further, given that the Veteran is not shown to have experienced any incapacitating episodes of the disc disease of the lumbar spine, a rating in excess of 10 percent based on incapacitating episodes is not warranted under Diagnostic Code 5243 for incapacitating episodes. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected degenerative spurring of the lumbar spine at L3-L4 is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain. However, the effect of the pain in the Veteran's degenerative spurring of the lumbar spine at L3-L4 was contemplated in the assigned 10 percent disability evaluation under Diagnostic Codes 5243. See 38 C.F.R. § 4.59. Indeed, the August 2012 rating decision specifically granted the 10 percent rating based on painful motion. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The June 2012 VA examination documents that the Veteran did not have additional limitation in range of motion of the lumbar spine following repetitive -use testing and the Veteran did not have functional loss and/or impairment of the lumbar spine due to fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence, discussed above, to be more probative than his lay assertions in determining that his degenerative spurring of the lumbar spine at L3-L4 does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has specifically considered the appellant's pleadings to include that he was told to stretch through the pain, that the muscles are tighter on the right side and that he has constant pain. However, the current evaluation contemplates pain on motion and flexion of the lumbar spine greater than 60 degrees. Nothing in the pleadings or the medical evidence suggests that flexion is functionally limited to 60 degrees or less or that the combined range of motion is 120 degrees or less. Furthermore, there is no lay or medical evidence of an abnormal gait or spinal contour. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated. The Veteran has not complained of radiating pain or other neurological abnormalities. Accordingly, a separate evaluation for neurologic manifestations is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial evaluation for his degenerative spurring of the lumbar spine at L3-L4. Left Knee The initial rating for the Veteran's residuals of left knee surgery with scar has been assigned pursuant to diagnostic code (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. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5261 (limitation of extension of the leg) and 5260 (limitation of flexion of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5260, 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. A separate evaluation may also be assigned for instability. See 38 C.F.R. § 4.71a, DC 5257. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher evaluation for his residuals of left knee surgery with scar. The Veteran is currently assigned a 10 percent disability. This evaluation contemplates pain on motion. See 38 C.F.R. § 4.59. It is also consistent with limitation of extension to 10 degrees. A higher evaluation may be assessed if extension is functionally limited to 15 degrees. See 4.7; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not show that the Veteran has limitation of extension to 15 degrees. Rather, the October 2007 VA examination revealed that he had full range of motion of the left knee with no pain on motion. The June 2012 VA examination documented the Veteran as having full extension with no objective evidence of painful motion. Thus, an increased evaluation is not warranted under Diagnostic Code 5261. A separate evaluation may be assigned if there is a compensable degree of limitation of flexion. We again note that the evaluation contemplates pain on motion, regardless of the plane of motion. Here there is no evidence to establish that flexion is functionally limited to 45 degrees. Rather, all evidence establishes that his remaining functional flexion is greater than 60 degrees. Therefore, a separate rating for limitation of flexion is not warranted under Diagnostic Code 5260. Nevertheless, the Board has also considered whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). While the Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, such as that governing ankylosis of knee, impairment of the tibia and fibula, and dislocation of the semilunar cartilage, the Board finds that the criteria for a rating in excess of 10 percent for his left knee disability are simply not met. See 38 C.F.R. § 4.71a, Diagnostic Code 5256, 5258, 5262. In this regard, the evidence of record simply does not show the Veteran to have ankylosis of the knee, impairment of the tibia or fibula with moderate knee disability or dislocated semilunar cartilage with frequent episodes of "locking pain and effusion into the joint. In fact, the range of motion studies contained in the record do not demonstrate that the joint was immobile or fixed in place. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990). X-rays obtained in October 2007 showed no joint effusion. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5256, 5258, 5262. 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 for such is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected residuals of left knee surgery with scar is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain. However, the effect of the pain in the Veteran's residuals of left knee surgery with scar was contemplated in the assigned 10 percent disability evaluation under Diagnostic Codes 5261. See 38 C.F.R. § 4.59. Indeed, the August 2012 rating decision specifically granted the 10 percent rating based on painful motion. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The June 2012 VA examination documents that the Veteran did not have additional limitation in range of motion of the left knee following repetitive -use testing and the Veteran did not have functional loss and/or impairment of the left knee due to fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence, discussed above, to be more probative than his lay assertions in determining that his residuals of left knee surgery with scar does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A separate compensable rating for the left knee scar is not warranted because the surgical scar of the left knee does not cover an area of 144 square inches (929 sq. cm.) or greater. Accordingly, a separate compensable evaluation for left knee scar is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial evaluation for his residuals of left knee surgery with scar. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 or residuals of left knee surgery with scar is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disabilities are not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected cervical spine spur at C5, degenerative spurring of the lumbar spine at L3-L4 and residuals of left knee surgery with scar under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 10 percent for cervical spine spur at C5 is denied. An initial evaluation in excess of 10 percent for degenerative spurring of the lumbar spine at L3-L4 is denied. An initial evaluation in excess of 10 percent for residuals of left knee surgery with scar is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs