Citation Nr: 1323746 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-20 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to an initial rating greater than 10 percent for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2011, the Board remanded for additional development and due process concerns. The Board is satisfied that there has been at the very least substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). A hearing before the undersigned Acting Veterans Law Judge was held at the RO in April 2011. The hearing transcript has been associated with the claims file. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was treated on one occasion in service for back pain, but symptoms of a back disability were neither chronic in service, nor continuous since service; and a chronic back disability was not shown to manifest to a compensable degree within one year of service. 2. A back disability, to include degenerative joint disease of the back, was not shown for many years after service. 3. The weight of the evidence does not show that the Veteran's back disorder was incurred in service, is causally related to service, or is secondary to a service-connected disability. 4. The Veteran's service connected right knee disability is not functionally limited to flexion to fewer than 120 degrees or to extension to greater than 0 degrees. 5. The Veteran's service connected right knee disability is not shown to cause any recurrent subluxation or instability; and no ankylosis, impairment of the tibia and fibula, or frequent locking and joint effusion is shown. CONCLUSIONS OF LAW 1. The criteria for service connection of a low back disorder have not been met. 38 U.S.C.A. §§ 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an initial rating greater than 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted when a disability "is proximately due to or the result of a service-connected disease or injury." In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. In order to establish service connection for a claimed disorder, the following must be shown: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In February 2007, the Veteran filed a claim seeking service connection for his back as secondary to his service connected pes planus. Essentially, he believes that his pes planus has caused him to walk with an altered gait, which in turn led to the development of a back disability. However, VA treatment records dated in January and May 2001, August 2004, March and June 2005, May 2007, December 2008, and August 2009 reflect findings of normal gait. A June 2006 VA treatment record reflects a finding of slight limp. An October 2006 VA treatment record reflects the Veterans history of pain in the middle of the back. He denied recent injury and reported having the pain in the past. He was assessed with back pain. A December 2006 private X-ray report reflects the Veteran's history of low back pain with no known injury. X-ray imaging revealed spondylolisthesis and spondylosis. December 2007 VA treatment records reflect histories of lower back pain. The Veteran reported a history of similar pain in the past. He was assessed with back pain. Subsequent records reflect histories of low back pain. A February 2008 statement from the Veteran's private doctor reflects the opinion that the Veteran's lower back pain "could be caused indirectly by pes planus causing an abnormal gait" and that it materialized during service. A September 2008 VA examination record reflects the Veteran's history of a gradual onset of low back pain of unknown etiology in 2007. The Veteran reported that his primary care doctor believed it could be related to his foot problem and indicated that he did "a lot" of heavy carrying and lifting at work. Examination revealed that the Veteran walked without an antalgic gait. After examination and review of radiographic images, the Veteran was assessed with degenerative disc disease of the lumbar spine. The examiner found it less likely than not that the lumbar spine disorder was caused by the service-connected pes planus. Rather, the examiner found it more likely than not that the back pain was the result of activity at work and the normal aging process. An April 2010 VA examination record indicates that gait was "not particularly antalgic" though it was slow and deliberate. The April 2011 hearing transcript reflects the Veteran's history of low back pain since approximately 2007. An October 2011 VA examination record reflects the history of low back pain for "probably . . . a decade or more." He denied having incurred any acute, traumatic injury. The Veteran was noted to have a "mildly" antalgic gait. After examination, the Veteran was diagnosed with degenerative joint and disc disease. The examiner, who indicated review of the claims file, determined that it was less likely than not that the low back disorder was caused or aggravated by the bilateral pes planus and/or right knee disability. The examiner explained that there were no available medical records that documented an antalgic gait. The examiner added that there were three joints between the feet and lumbar spine, each of which "soften the blow' and diminish the impact of forces transmitted from the flat feet proximally to the lumbar spine during the gait cycle. Thus, the examiner found it was not biomechanically plausible that there was any significant traumatic force to the lumbar spine due to weight-bearing on flat feet that could cause or permanently aggravate the lumbar spine disorder. Furthermore, the examiner noted that the record indicated that the Veteran's former occupation involved "significant activities" which "could very likely" cause or aggravate a low back condition. The examiner explained that the Veteran's former occupation provided many opportunities for "wear and tear" to be placed on the lumbar spine. The examiner acknowledged that a private doctor had provided a positive opinion, linking the low back disorder to an altered gait caused by the flat feet. The examiner found that the private opinion was not a "strong" opinion, however, because of the use of "could," the absence of a rationale, and the lack of review of the claims file. The examiner added that the private doctor had less expertise in musculoskeletal conditions than the September 2008 VA examiner who was an orthopedic specialist. Additionally, the examiner noted that the Veteran's gait was only mildly antalgic on examination and that the record did not include evidence of longstanding chronic antalgic gait or instability. In the absence of a longstanding, chronic gait abnormality, instability, or meniscal injury, the examiner found it not biomechanically plausible that the right knee condition caused or permanently aggravated the low back disorder. The examiner added that degenerative spinal disease is "very common, particularly in aging individuals," and found it most likely related to a combination of normal aging and the work requirements associated with the Veteran's former employment. In light of the conflicting opinions of record, VA requested an opinion from a Veterans Health Administration (VHA) specialist to resolve whether the Veteran's low back disorder had been caused or aggravated by a service-connected disability. In March 2013, VA received an opinion from a specialist, a Chief of Neurosurgery. The specialist reported review of the records, to include the Veteran's statements. The specialist determined that because the gait had been described as mildly antalgic at worst, it was unlikely that the gait directly impacted and caused degenerative disc disease leading to back pain. The examiner explained that degenerative disc disease happens frequently in patients without feet or knee pathology. The specialist believed it was less likely as not that the low back pain and lumbar spine disorder was directly caused or aggravated by the service-connected pes planus and/or right knee disability. The specialist acknowledged that because there was no personal examination, the opinion was based on general biomechanical knowledge and expertise. Having reviewed the evidence, the Board concludes that the weight of the evidence is against the claim for service connection for a back disability. Initially, the Board notes that the competent and probative evidence does not suggest that a low back disorder had its onset in service or is causally related to service. The service treatment records do not show any specific back injury, nor has the Veteran described one, and no chronic back disability was diagnosed in service. The Veteran did present for treatment of lower back pain on one occasion, in May 1979, after experiencing back pain for one day. However, the physical examination revealed no spasms and the Veteran demonstrated full range of motion. The Veteran was instructed to do back exercises and to take a hot shower, but again no back disability was diagnosed. No additional back complaints were voiced in service, and the Veteran specifically denied experiencing any recurrent back pain on his medical history survey completed in December 1980 in conjunction with his separation physical. The separation physical also found his spine to be normal. Following service, the first evidence suggestive of a low back disorder dates approximately 25 years after separation from service, which weighs against any direct association between the Veteran's current back disability and his time in military service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). It is noted that during this time the Veteran was clearly aware of the VA disability system, as he promptly filed a claim for service connection for pes planus within months of separation from service. As such, if the Veteran was having back problems at that time, one would have expected him to file a claim at that time. Moreover, the Veteran on numerous occasions in the 1980s and 1990s sought increased ratings for his pes planus and was provided with medical examinations; yet, again he neither complained of, nor filed a claim for, any back problems. Furthermore, the record does not contain any competent evidence directly linking the low back disorder to service. The Board acknowledges that the Veteran has stated in his substantive appeal and his notice of disagreement that his low back disorder began in service; but he has not provided any explanation to substantiate such an allegation, to include a history of symptoms during service. Moreover, on multiple occasions, he has reported that his low back symptoms began in 2007. Although the Veteran is competent to report a symptomatic history, he has not specifically alleged that his symptoms began during service and the record does not suggest that he is otherwise competent to determine the date of onset of the currently diagnosed low back disorder; as the record does not suggest that he has the specialized knowledge necessary to offer such an opinion. See Jandreau, 492 F.3d at 1376-77; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As such, the Board finds the Veteran's statements are not competent and probative evidence of an in service onset of a low back disorder. The Board further acknowledges that a private doctor has opined that the low back pain associated with the Veteran's currently diagnosed low back disorder "materialized" during service. The doctor did not provide any rationale or explanation for this opinion, however, to include how it was determined that he low back pain began during service, particularly because the Veteran has reported an onset many years after service and the evidence does not reflect any findings of abnormal gait prior to 2006. In the absence of a rationale, the opinion lacks any probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds a low back disorder was not present until many years after service and is not causally related to service. As noted, the Veteran was diagnosed with degenerative joint disease of the back, and degenerative joint disease is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). However, as discussed, the Veteran's degenerative joint disease was not diagnosed in service, as no back disability was diagnosed at any point either during service, or for many years thereafter. While the Veteran did report back pain on one isolated occasion in service, it was not shown to be a chronic problem as the Veteran himself specifically denied any recurrent back pain at his separation physical several months later. Moreover, following service, there is no evidence of any back problems for a number of years following service, as the first record of back treatment does not appear until approximately 2006, multiple decades after the Veteran's separation from active duty. As such, it simply is not shown that a chronic back disability manifested either within a year of service, or was continuous symptomatically since service. To the extent that the Veteran's statements in his notice of disagreement and substantive appeal that his back disability had onset in service are taken to suggest continuous symptomatology since service, the Board concludes that such assertions are not credible as they are directly refuted by the Veteran's own contemporaneous statements on his medical history survey completed in conjunction with his separation physical when he specifically denied any recurrent back pain. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Such a conclusion is further supported by the fact that the Veteran did not seek any back treatment for years thereafter or file any claim for service connection for a back disability for multiple decades after service, combined with the fact that during the two decades after service he sought orthopedic treatment for his feet and filed claims for service connection and for increased ratings for his feet. As such, if the Veteran was experiencing back problems one would have expected him to seek treatment for it or file a claim for it, and his failure to do so, combined with the evidence generated contemporaneous with service, the Board concludes that the Veteran's statements are not sufficiently credible to establish continuous symptoms of degenerative joint disease in his back since service. The competent and probative evidence also does not support the conclusion that the low back disorder is secondary to the service-connected pes planus and right knee disability. The Board acknowledges that a medical professional has opined that the Veteran's low back disorder "could have" been caused by an altered gait caused by the Veteran's pes planus. However, "could be" in the context of a medical opinion is the same as "could not be" and therefore cannot provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply put, this opinion lacks probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. The opinion is speculative and not accompanied by a rationale, to include an explanation as to how the Veteran's gait, which is repeatedly described as normal or only mildly/slightly antalgic, caused the low back disorder. It is unclear from the opinion whether the opinion was provided on a generic basis - i.e. an altered gait can cause low back problems in people generally- or specifically based on the Veteran's symptomatic history - i.e. the Veteran's altered gait caused the Veteran's low back problems. In contrast, the Board finds the opinions provided by the VA examiners and the VHA specialist that the low back disorder was not caused or aggravated by the service-connected disabilities are highly probative as they are supported by a detailed rationale which is consistent with the evidence of record. The Veteran has alleged that there is a link between his service-connected pes planus and right knee disability and his low back disorder. However, as discussed above, the weight of the medical evidence is against findings of such a link, and the Veteran has not shown that he is competent to render an opinion as to the cause of his low back disorder: the record does not suggest that he has the specialized knowledge necessary to offer such an opinion. See Jandreau, 492 F.3d at 1376-77; Davidson, 581 F.3d at 1316. The Board has reviewed the Veteran's complaints in his substantive appeal that VA had not considered the letter written by his private doctor. Such is not the case, as the Board closely inspected all of the evidence of record. Indeed, the Board acknowledges that the private doctor is a medical professional and he is therefore considered to be competent, as are the VA medical professionals who provided opinions in this case, to provide an opinion as to the etiology of the Veteran's back disability. 38 C.F.R. § 3.159(a)(1). At this juncture, the Board notes that as finder of fact, it must determine, both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). As discussed, multiple medical opinions are of record in this case, and while the letter from the Veteran's private doctor is considered probative, it was not supported by the evidence of record and did not provide any rationale for its conclusion. As such, while the Board accepts the opinion as competent and credible, the Board must determine what evidence is the most probative. In this case, the multiple opinions against the Veteran's claim are supported by a more complete rationale and are better underscored by the evidence of record regarding the Veteran's gait. Given this conclusion, the weight of the medical evidence is against the Veteran's claim; and as noted the Veteran is not medically qualified to provide such a complex medical connection. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In the absence of probative evidence of a link to service (either through date of onset or causation) or a link to the service-connected pes planus and right knee disability (either through causation or aggravation), service connection is not warranted; the Veteran's claim is therefore denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." In May 2006, the Veteran filed a claim seeking service connection for retro patellar pain syndrome in his knee, as secondary to his service connected pes planus. Service connection was granted by a May 2006 rating decision which assigned a 10 percent rating for the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Magnetic resonance imaging (MRI) of the right knee in March 2006 revealed a torn posterior horn of the medial meniscus, chondromalacia of the patella, subcortical bruising or cystic change involving the medial femoral condyle, and small joint effusion with a Baker cyst in the popliteal fossa. The record notes that the possibility of intermittent patellar subluxation or impaction on the medial femoral condyle was raised. A June 2006 VA treatment record reflects the Veteran's history of right knee pain. Examination revealed no swelling, effusion, crepitus, or limitation of motion. Additionally drawer signs were negative, and there was no pain with varus or valgus stress. X-ray images revealed degenerative changes of the patella/femoral articulation and the possibility of loose intra-articular fragment. A subsequent June 2006 VA treatment record indicates that the Veteran was ambulating on his own but with a "slight" limp. The record notes that he was fitted for a brace. He was assessed with right knee degenerative joint disease. An October 2006 VA examination record reflects the Veteran's history of constant right knee pain, popping, and cracking. He also reported occasional swelling but no remarkable enlargement of the knee. He denied locking, catching, or giving way. The Veteran indicated that he stopped using the brace because he found it was not "really" helpful and reported that he began using a cane approximately eight months earlier to aid with ambulation, particularly on stairs. He indicated that he used the cane to alleviate knee pain. Examination revealed that the Veteran could walk satisfactorily without cane support and that his gait was reciprocal but with a slight limp favoring the right knee. There was no obvious swelling in the right knee. There was slight laxity of the right patella compared to the left but no dislocation. Range of motion testing revealed motion from 0 to at least 130 degrees, to include after 10 repetitions. McMurray's test caused increased discomfort but no definite click was heard over the medial joint line. Anterior drawer test was negative. There was slight laxity of the lateral collateral ligament on varus stress test but no joint instability. There was no medial collateral ligament laxity. There was no detected instability of the right knee joint. The examiner estimated that there was an additional 10 degree limitation of flexion of the right knee due to pain with use and limited endurance. The examiner added that primary weakness, fatigability, and incoordination were not characteristic and that pain with use was the major functional impact. The Veteran was diagnosed with patellar chondromalacia, medial meniscus tear, and degenerative joint disease. A May 2007 VA treatment record reflects the Veteran's history of chronic knee pain, which was improved by use of a knee brace. July 2007 VA treatment records reflect the Veteran's history of worsening right knee pain and instability. He reported that he had been wearing his knee brace. Examination revealed no effusion, swelling, limitation of range of motion, or snap with extreme flexion, and McMurray and drawer tests were negative. There was point tenderness at insertion and origin of collateral ligaments. X-ray images showed degenerative joint disease. An August 2007 VA treatment record reflects the Veteran's history of right knee pain, aggravated by rotation, prolonged standing, and use of stairs. He denied locking or giving way. Examination revealed no crepitus or tenderness and full range of motion. McMurray, Lachman, and anterior/posterior drawer tests were negative. The Veteran was assessed with osteoarthritis and told to continue use of the brace. An April 2009 VA examination record reflects the Veteran's history of right knee pain, estimated as 7/10, with weekly flare-ups for a few hours which were sometimes associated with swelling. He reported that the knee was stable. Examination revealed mild swelling. Range of motion was from 0 to 140 degrees without pain, to include after repetition. Strength was normal, and there was no instability on medio-lateral stress. Lachman and drawer tests were negative. The examiner reported that weakness, impaired endurance, incoordination, and instability were not characteristic for the knee disorder. X-ray images revealed mild osteoarthritis; there was no effusion. The examiner added that the knee and bilateral foot disorder would result in occupational impairment due to limitation of ability to stand and walk for prolonged periods and limitation of ability to carry heavy objects. December 2008 and August 2009 VA treatment records reflect the Veteran's history of persistent knee pain. The December 2008 VA treatment record also reflects the Veteran's negative history as to instability and negative history as to missing work due to pain. Examination revealed tenderness along the joint line and crepitus with flexion, but no limitation of range of motion, swelling, effusion, or pain with varus or valgus stress. Additionally, McMurray and drawer tests were once again negative. The April 2011 hearing transcript reflects the Veteran's reported history of knee pain, popping, grinding, diminished strength, and pain with flexion. He testified that the knee has given out when he has gone up stairs. He later testified that he had instability and buckling in the knee and that he used a cane for pain. An October 2011 VA examination record reflects the Veteran's history of right knee pain, for which he wore a brace. He denied locking, giving out, buckling, or instability. He did report occasional "popping" and increased pain with squatting, kneeling, pivoting, and use of stairs. He also reported occasional stiffness after prolonged sitting or in cold weather. He denied swelling. He indicated that he had flare-ups once a week, typically after overdoing it with physical activity, which typically last one day. He explained that during a flare-up he takes ibuprofen, walks and stands less, and avoids riding his bicycle. Range of motion testing revealed motion from 0 to 135 degrees, with pain beginning at 125 degrees. There was no objective evidence of painful motion with extension. After repetition, flexion was limited to 125 degrees. Joint stability tests revealed normal findings; there was no objective evidence of instability. The examiner determined that there was no evidence or history of recurrent patellar subluxation/dislocation or locking or effusion into the joint. The examiner further determined that there was no meniscal abnormality. The examiner explained that the Veteran had a "completely normal" McMurray test which made a meniscal tear "very unlikely." The examiner added that there was no evidence of right knee anterior, posterior, medial, or lateral instability and that the Veteran reported no pain with testing of the ligaments. Thus, the examiner found no objective clinical evidence of instability. Furthermore, the examiner found no documented instability or evidence of a torn meniscus in the VA electronic medical records and noted that the Veteran's McMurray's tests were consistently normal. The examiner found that the knee disability impaired the Veteran's ability to work because he was precluded from squatting, kneeling, or climbing in order to prevent pain. The examiner diagnosed mild degenerative joint disease of the right knee. The examiner estimated that the right knee disability would result in mild limitation of functional ability during flare-ups. The examiner noted that this determination was based in part on the Veteran's history that he was able to drive and perform activities of daily living even during flare-ups. The right knee disability is rated at 10 percent pursuant to Diagnostic Code (DC) 5260 based on evidence of limitation of flexion as a result of the Veteran's right knee arthritis. DC 5260 provides a 10 percent rating for flexion limited to 45 degrees and a 20 percent rating for flexion limited to 30 degrees. The appropriate rating for limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. As described above, the Veteran had the range of motion in his right knee measured at multiple VA examinations throughout the course of his appeal. However, he consistently demonstrated flexion to at least 120 degrees without pain, to include after repetition, and objective testing of range of motion revealed no fatigue, weakness, lack of endurance, or incoordination (note the range of motion testing discussed above at the Veteran's VA examinations). The Board acknowledges that the evidence includes histories of pain on use and functional impairment, to include during flare-ups. However, even if range of motion was limited by pain beyond that shown during examination, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. Specifically, the range of motion demonstrated by the Veteran, and reported by the Veteran - to include during flare-ups, and estimated by the VA examiner during flare-ups, so greatly exceeds what would be required for even a noncompensable rating that it would be illogical to conclude that pain so functionally limited the range of motion that it would approximate the criteria for a rating greater than 10 percent rating under DC 5260. Thus, a rating in excess of 10 percent is not warranted under DC 5260. A separate rating is additionally not available for either limitation of extension or instability. See VAOPGCPREC 23-97; VAOGCPREC 9-2004. DC 5261, which rates limitation of extension, provides a 10 percent rating for extension limited to 10 degrees. The Veteran has consistently shown the ability to fully extend without pain, and he has not reported any functional limitation of extension, to include during flare-ups. For example, at his October 2006 VA examination the Veteran had extension to 0 degrees even after 10 repetitions and at his April 2009 VA examination he again demonstrated extension to 0 degrees without pain, and even after repetition. Finally, at his VA examination in October 2011 he had extension to 0 degrees with no objective evidence of painful motion with extension. Full range of motion was also shown in several VA treatment records. Thus, a separate rating is not warranted for limitation of extension. DC 5257, which rates instability, provides a 10 percent rating for slight instability or recurrent subluxation. Initially, the Board finds the right knee disability is not manifested by recurrent subluxation. The Board acknowledges that the March 2006 MRI reported a finding of possible subluxation and that the Veteran has reported "popping" in the knee. The record does not include a confirmed finding of subluxation, however, or any finding suggestive of subluxation during the appellate period, and the October 2011 VA medical examiner found no evidence of subluxation. Furthermore, the record on the whole indicates that the history of "popping" refers to noise rather than a physical action such as temporary dislocation, however: the Veteran generally reports it in conjunction with crepitus or grinding and has generally denied giving way or instability when he has reported popping. The right knee disability is also not manifested by slight instability. The Board acknowledges that the Veteran reported instability during July 2007 treatment, in the August 2007 notice of disagreement, and at the April 2011 hearing. The Veteran has otherwise denied instability, giving way, or buckling, however, and VA examiners have consistently found the knee to be stable, even when laxity was shown in October 2006. Furthermore, although the Veteran uses a brace and a cane, the record, notably the Veteran's histories, indicate that the assistive devices are used to alleviate pain rather than stability issues. Although the Veteran is competent to report instability, the Board finds the histories of instability are less credible, and thus less probative, than the consistently normal medical findings with respect to stability, particularly in light of the contradictory histories provided by the Veteran as to whether he has instability. In sum, the Board finds the Veteran's right knee disability does not result in even slight instability. Thus, the Board finds the right knee disability does not approximate slight recurrent subluxation or lateral instability, and a separate rating is not warranted under DC 5257. A rating in excess of 10 percent is also not warranted under any of the other rating criteria pertaining to the knee. There is no evidence of ankylosis, malunion of the tibia and fibula, or absence of semilunar cartilage; as such, diagnostic codes 5256, 5259, and 5262 are not applicable. The Board acknowledges that there is evidence of dislocation of the semilunar cartilage and pain and that the Veteran has reported swelling in the knee. The record does not contain any histories of locking, let alone frequent locking, however, and radiographic imaging dating during the appellate period does not show effusion in the joint. Thus, the Board finds a separate rating is not warranted under DC 5258. The Board has also considered whether extraschedular consideration is warranted based on the evidence of occupational impairment secondary to the knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms and associated functional impairment of the Veteran's right knee disability contemplated by the applicable rating criteria. The competent medical evidence of record shows that the knee disability is primarily manifested by pain. The diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion due to pain, and the effects of pain and functional impairment have been taken into account and were considered in the award of the current rating and the application of the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the effects of the Veteran's right knee disability have been fully considered and are contemplated in the rating schedule; and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). However, even if it were argued that the schedular rating criteria did not adequately describe the Veteran's knee disability, the fact remains that his right knee has not been shown to require any hospitalizations, and it has not been shown to cause marked interference with employment. While the knee disability may have caused some impairment with employment, it is in recognition of such impairment that the Veteran was assigned a compensable rating. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran may no longer be employed. He has not, however, alleged that he is unemployable on account of his service connected right knee disability. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected right knee disability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). With respect to the claim of service connection, the RO provided the Veteran pre-adjudication notice by letter dated in March 2008, which informed him of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the claim of increased initial rating, 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). Here the Veteran has not alleged any prejudice, and thus that burden has not been met in this case. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records are in the claims file. All pertinent VA and reported private treatment records have been obtained and associated with the file. With respect to the claim of service connection, VA examinations were conducted and opinions obtained which are adequate for adjudicative purposes: the VA examiners reported review of the claims file, obtained histories from the Veteran, reported all necessary information to adjudicate the claim associated with the examination, and provided a rationale for any opinion provided. Additionally, in light of the conflicting opinions as to likely etiology of the low back disorder, a probative opinion was procured from a VHA specialist. The VHA opinion was predicated on a full reading of the record, the specialist considered all of the pertinent evidence of record, and provided a complete rationale for the opinion stated. The Board acknowledges that the specialist did not examine the Veteran. The specialist based the opinion on the evidence of record, however, which consistently showed at most a slightly altered gait, and in the absence of evidence, to include history, of a increased gait abnormality since the most recent relevant medical findings, namely the October 2011 VA examination, the Board finds the opinion is probative and based on accurate information. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met with regard to the claim of service connection. 38 C.F.R. § 3.159(c) (4). The Board likewise finds the VA's duty to assist with respect to provided a VA examination has been met with regard to the claim of increased initial rating. The examiners reported all necessary findings and provided an opinion on the functional impact of the Veteran's right knee disability which was consistent with the reported findings and evidence of record. The Board acknowledges that it is unclear whether the October 2011 examiner reviewed the entire claims file: although he reported review of the entire claims file and noted numerous findings relevant to the issue, he did not note the March 2006 MRI showing a meniscal tear which is contained in the first claims file. The examiner did elicit a medical history from the Veteran, which was consistent with that contained in the claims folder, however, and the examiner's determination that the Veteran does not have a meniscal tear was supported by a detailed rationale beyond the absence of radiographic evidence of a tear. Moreover, as this is a claim of increased rating, rather than of service connection, and as the existence of a meniscal tear is not outcome-determinative (because the evidence does not contain any evidence of locking or effusion), the Board finds that there is no prejudice from the 2011 VA examiner's failure to note the March 2006 MRI report. Furthermore, the Board finds that consideration of the current disability status was made in view of the Veteran's medical history. 38 C.F.R. § 4.1; Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran was provided an opportunity to set forth his contentions during the April 2011 hearing before the undersigned. The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002): VA provided adequate VA examinations and obtained probative opinions as instructed in the remand. The Veteran's representative has alleged that VA failed to comply with the remand instructions because the VHA specialist provided an opinion with regard to the issue of service connection without examining the Veteran. See May 2013 brief. An adequate VA examination was provided and a probative opinion obtained in October 2011, however, in accord with the remand instructions. The fact that a subsequent opinion was procured does not render the earlier examination and opinion void. The Veteran has not alleged the 2011 VA examination was inadequate, and the Board does not so find, and to any extent the opinion provided by the 2011 VA examiner was not probative, there was substantial compliance with the remand instructions because a highly probative opinion was obtained from a VHA specialist which was based on the record, including the 2011 VA examination records and because the Veteran has not alleged an increase in his gait abnormality since the October 2011 VA examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disorder is denied. An initial rating in excess of 10 percent for a right knee disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs