Citation Nr: 1325212 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-02 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating higher than 10 percent for right knee degenerative joint disease from September 18, 2009. 2. Entitlement to a rating higher than 10 percent for left knee degenerative joint disease from September 18, 2009 to the present. 3. Entitlement to a separate rating higher than 10 percent for left knee, symptomatic removal of the semilunar knee cartilage from September 18, 2009. 4. Entitlement to a rating higher than 10 percent for lumbar spine degenerative changes from September 18, 2009 through March 6, 2013. 5. Entitlement to a rating higher than 20 percent for lumbar spine degenerative changes from March 7, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to July 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2008 and May 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in October 2012 and was remanded for additional development. Jurisdiction over this claim belongs to the RO in Montgomery, Alabama. The Veteran testified at a hearing at the RO in December 2011, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Evidence pertinent to the matters on appeal was received subsequent to the March 2013 supplemental statement of the case. The Veteran, through his representative, has waived initial RO consideration of this evidence. The Veteran's representative, in May 2013 written argument, has raised the issue of entitlement to service connection for loss of the feet. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the Veteran has not asserted that his service-connected disabilities render him unemployable, and the evidence also reveals that the Veteran is currently employed. As such, the issue of entitlement to a TDIU is not before the Board. FINDINGS OF FACT 1. From September 18, 2009 through December 19, 2012 the Veteran's right knee degenerative joint disease did not demonstrate flexion to less than 45 degrees or extension limited to 10 degrees. 2. From December 20, 2012 through March 6, 2013 the Veteran's right knee has been manifested by complaints of pain with functional impairment comparable to limitation of flexion to no less than 30 degrees and extension limited to 10 degrees; slight subluxation has been noted. 3. From March 7, 2013 the Veteran's right knee has been manifested by complaints of pain with functional impairment comparable to limitation of flexion to no less than 45 degrees and extension limited to 0 degrees; subluxation or instability have not been shown. 4. From September 18, 2009 through December 19, 2012 the Veteran's left knee degenerative joint disease did not demonstrate flexion to less than 45 degrees or extension limited to 10 degrees. 5. From December 20, 2012 through March 6, 2013 the Veteran's left knee has been manifested by complaints of pain with functional impairment comparable to limitation of flexion to no less than 30 degrees and extension limited to 10 degrees; slight subluxation has been noted. 6. From March 7, 2013 the Veteran's left knee has been manifested by complaints of pain with functional impairment comparable to limitation of flexion to no less than 40 degrees and extension limited to 0 degrees; subluxation or instability have not been shown. 7. From September 18, 2009 the Veteran's left knee, symptomatic removal of the semilunar knee cartilage was not productive of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. 8. From September 18, 2009 through December 19, 2012 the Veteran's low back disability did not demonstrate forward flexion to 30 degrees or less. 9. From December 20, 2012 the Veteran's low back disability demonstrated or approximated forward flexion to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease from September 18, 2009 through December 19, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5257, 5258, 5259, 5260, 5261 (2012). 2. The criteria for a rating of 20 percent for right knee degenerative joint disease (for limitation of right knee flexion) from December 20, 2012 through March 6, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260 (2012). 3. The criteria for entitlement to a separate 10 percent rating for limitation of right knee extension from December 20, 2012 through March 6, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5261 (2012). 4. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease from March 7, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5257, 5258, 5259, 5260, 5261 (2012). 5. The criteria for entitlement to a separate 10 percent rating for right knee subluxation, from December 20, 2012 through March 6, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2012); VAOPGCPREC 23-97. 6. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease from September 18, 2009 through December 19, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5257, 5258, 5259, 5260, 5261 (2012). 7. The criteria for a rating of 20 percent for left knee degenerative joint disease (for limitation of left knee flexion) from December 20, 2012 through March 6, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260 (2012). 8. The criteria for entitlement to a separate 10 percent rating for limitation of left knee extension from December 20, 2012 through March 6, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5261 (2012). 9. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease from March 7, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5257, 5258, 5259, 5260, 5261 (2012). 10. The criteria for a separate rating in excess of 10 percent for left knee, symptomatic removal of the semilunar knee cartilage from September 19, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5258, 5259 (2012). 11. The criteria for a rating in excess of 10 percent for lumbar spine degenerative changes from September 18, 2009 through December 19, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242 (2012). 12. The criteria for a rating of 40 percent for lumbar spine degenerative changes from December 20, 2012 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. The Veteran was notified via letters, including those dated in August 2007 and January 2013, of the criteria for assigning ratings for the knees and back, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disabilities on appeal and the effect that the disabilities have on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As for VA's duty to assist, the Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. 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 VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations described the Veteran's disabilities on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disabilities. VA's duty to assist in obtaining a VA examination has been met. During the December 2011 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony, and specifically asked the Veteran for details concerning the nature and history of his low back and knee disabilities. The undersigned also asked questions to determine if all medical evidence was of record and also inquired as to whether the Veteran's disabilities on appeal had worsened since the last VA examination. The undersigned also informed the Veteran that the record would be held open for 60 days in an effort to give the Veteran additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its October 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, in March 2013 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal. Further, VA and private medical records have been associated with the claims file. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Increased Ratings-Laws and Regulations Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. I. Knees Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent evaluation is for application where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees, and a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of leg extension. Under that Code section, a 10 percent evaluation is for application where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. As for Diagnostic Code 5257, a 10 percent rating contemplates slight knee impairment due to recurrent subluxation or lateral instability. A 20 percent rating contemplates moderate impairment due to recurrent subluxation or lateral instability, and a maximum 30 percent rating is warranted for severe impairment of the knee. Under Diagnostic Code 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. Under Diagnostic Code 5259, symptoms associated with the removal of semilunar cartilage warranted a 10 percent rating. Under Diagnostic Code 5262, a 20 percent evaluation is for assignment for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent evaluation is for assignment with marked knee or ankle disability. VAOPGCPREC 9-2004 (September 17, 2004) holds that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Further regarding the question of entitlement to separate evaluations, VAOPGCPREC 23-97 provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257 or 5258-9. VAOPGCPREC 9-98. Factual Background An October 2010 private medical record noted that the Veteran was to wear an elastic knee brace at all times when on his feet. VA records dated in March 2011, May 2011, and June 2011 reveal the fitting and delivery of the Veteran's knee brace. At his December 2011 Board hearing the Veteran stated that he was trying to build up the muscles in his knees by walking. He stated that his left knee would lock if he just sat around. He stated that walking and exercise in general would make his knees feel better so he tried to keep moving. At a December 2012 private examination the Veteran had right and left knee flexion to 30 degrees and right and left knee extension limited to 10 degrees. The Veteran was able to perform repetitive-use testing with the same range of motion but with some pain, weakened movement, and fatigability. Slight recurrent patellar subluxation/dislocation was noted. Strength testing of the knees was 4/5 and reflexes of the knees were normal. At the March 2013 VA examination, the Veteran was diagnosed with arthritis of the knees and cartilage tears. The Veteran complained of daily knee pain that would worsen with prolonged sitting or standing. Right knee flexion was to 45 degrees and right knee extension was to 0 degrees. Left knee flexion was to 40 degrees and left knee extension was to 0 degrees. The Veteran was able to perform repetitive-use testing with the same range of motion but with some pain, weakened movement, and fatigability. The knees had tenderness to palpation. Stability testing of the right and left anterior, posterior, and medial-lateral joints were all normal, with no subluxation or dislocation. Frequent locking , joint pain ,and effusion of the knees was noted. It was noted that the Veteran wore knee braces on a regular basis. The knees had 5/5 strength testing and normal reflexes. A. Degenerative joint disease of the knees The file is absent for clinical findings of right and left knee disability for the period from September 18, 2009 through December 19, 2012, and ratings in excess of 10 percent for this time period are not warranted. However, the findings from the December 20, 2012 private evaluation showing right and left knee flexion limited to 30 degrees warrants a 20 percent rating under Diagnostic Code 5260, and the findings of right and left knee extension limited to 10 degrees warrants a separate 10 percent rating under Diagnostic Code 5261. As noted, a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (September 17, 2004). These ratings are effective from December 20, 2012 through March 6, 2013. As neither knee showed flexion limited to 15 degrees or extension limited to 15 degrees on the December 2012 VA examination or any other evidence dated prior to March 7, 2013, even when considering the factors of 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995), higher ratings under Diagnostic Codes 5260 and 5261 are not warranted. In this regard, the Board notes that the Veteran has been able to perform repetitive motion of the knees without loss of additional range of flexion or extension. Further, strength testing of the knees has been shown to be at least 4/5, bilaterally. At a March 7, 2013 VA examination, the Veteran had right knee flexion limited to 45 degrees and right knee extension limited to 0 degrees. The Veteran also had left knee flexion limited to 40 degrees and left knee extension limited to 0 degrees. These findings indicate, even when considering the DeLuca factors, that ratings in excess of the 10 percent ratings currently assigned by the RO for this time period are not warranted for degenerative joint disease of the left knee and right knee. Further, the medical findings from the March 7, 2013 VA examination do not establish loss of either right knee or left knee extension to a compensable degree, and separate evaluations pursuant to VAOPGCPREC 9-2004 are not appropriate. B. Left knee symptomatic removal of the semilunar knee cartilage The Veteran is currently assigned a 10 percent rating under Diagnostic Code 5259 for symptoms associated with the removal of semilunar cartilage. A 20 percent rating under Diagnostic Code 5258 may be assigned where there is evidence of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. As for the evidence of record for this disability for the time period dated from September 18, 2009, the Board notes the Veteran's December 2011 Board hearing testimony where he essentially indicated that his knee would lock only if he were not moving around. This does not constitute frequent locking, as is necessary for a rating of 20 percent under Diagnostic Code 5258. While left knee dislocation was arguably shown on the December 2012 private examination, that report did not reveal evidence of frequent episodes of locking and effusion into the knee joint. In the same manner, while the March 2103 VA examiner did note that the Veteran had frequent episodes of locking, pain, and effusion into the knee joint, that same examiner indicated that dislocation was not present at that time. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's left knee symptomatic removal of the semilunar knee cartilage is not warranted at any time during the appeal period. While acknowledging that the Veteran does use a left knee brace, the Board would also note that the December 2012 private examiner characterized the Veteran's recurrent patellar subluxation/dislocation as being just slight. C. Other diagnostic codes The Board calls attention to the provisions of VA General Counsel opinion VAOPGCPREC 23-97. That opinion provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. The Board here observes that the December 20, 2012 private examiner indicated that the Veteran had right and left knee impairment due to recurrent subluxation. Because the above evidence essentially reflects right knee subluxation, a separate evaluation under Diagnostic Code 5257 is for application from December 20, 2012 through March 6, 2013. Having established that a separate evaluation is warranted for right knee subluxation, which is rated the same as instability under Diagnostic Code 5257 (instability and subluxation are essentially interchangeable terms with respect to the application of Diagnostic Code 5257), a 10 percent evaluation, representing slight subluxation as noted by the December 20, 2012 examiner, is assigned. As right knee subluxation is not shown prior to December 20, 2012, or from March 7, 2013, the separate rating under Diagnostic Code 5257 for right knee subluxation is only effective from December 20, 2012 through March 6, 2013. As for the assignment of a separate evaluation under Diagnostic Code 5257 for the left knee, the Board acknowledges that the December 2012 private examiner did note left knee recurrent subluxation. However, the Veteran's complaints of left knee subluxation, to the extent any have been made, have already been taken into consideration in assigning him a separate rating under Diagnostic Code 5258. The separate rating for the left knee under Diagnostic Code 5258 also encompasses the Veteran's complaints of left knee locking and effusion. As there is overlapping or duplicative left knee symptomatology, assigning the Veteran a separate rating for the left knee under Diagnostic Code 5257 would amount to pyramiding, which is prohibited under 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that there is no evidence during the appeal period revealing right or left knee ankylosis (Diagnostic Code 5256) or dislocated semilunar cartilage of the right knee (Diagnostic Code 5258). Consideration has also been given as to whether the Veteran had any abnormalities of the right tibia and fibula (Diagnostic Code 5262). However, as malunion of the tibia and fibula has not been shown, a rating under that diagnostic code would be inappropriate. D. Summary of the knees Based on the foregoing, the Board has found that while a rating in excess of 10 percent for right and left knee degenerative joint disease from September 18, 2009 through December 19, 2012 is not warranted, a rating of 20 percent for right and left knee degenerative joint disease (based on limitation of flexion) from December 20, 2012 through March 6, 2013 is warranted, and a separate 10 percent rating for right and left knee limitation of extension from December 20, 2012 through March 6, 2013 is also warranted. The Board has also determined that a rating in excess of 10 percent for right knee and left knee degenerative joint disease from March 7, 2013 is not warranted. While a separate 10 percent rating for right knee instability, from December 20, 2012 through March 6, 2013, has been granted, a rating in excess of 10 percent for left knee, symptomatic removal of the semilunar knee cartilage from September 19, 2009 has been denied. II. Low Back At his December 2011 Board hearing the Veteran indicated that he was not taking any medication for his back. He stated that it would take about 30 minutes in the morning for his back to loosen up upon waking. His back problem did not impact his employment as long as he could keep moving while working. A December 2012 private examination revealed that the Veteran's low back had forward flexion to 30 degrees, with painful motion. Lumbar spine extension was to 20 degrees, with painful motion. Right and left lateral flexion, and right and left rotation were to 20 degrees. The Veteran had the same range of motion upon repetitive testing but had some pain, weakened movement, and fatigability. Pain upon palpation of the lumbar spine was noted, and the Veteran had muscle spasms of the thoracolumbar spine that did not result in any abnormal gait. The Veteran's spine had no atrophy, and the sensory examination was normal with no radiculopathy. There was no intervertebral disc syndrome and no incapacitating episodes. At a March 2013 VA examination it was noted that the Veteran had degenerative disc disease of the lumbar spine. The Veteran complained of constant back pain that would worsen with prolonged sitting or walking. The Veteran indicated that he did not have flare-ups. Range of motion testing revealed forward lumbar spine flexion of 40 degrees and extension of 5 degrees. Right and left lateral flexion was to 10 degrees, and right and left lateral rotation were to 5 degrees. The Veteran had some guarded muscle spasm and 5/5 strength testing. There was no sign of radiculopathy or associated neurologic abnormalities or intervertebral disc syndrome. The Veteran would occasionally use a back brace. The Veteran's back condition contributed to some work absenteeism. Under the diagnostic criteria pertinent to spinal disabilities, a 20 percent evaluation is warranted where there is 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 is not greater than 120 degrees, or there is 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. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71, Diagnostic Codes 5237, 5238, 5243. In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes. Further, as instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, the rater is to separately evaluate any associated objective neurologic abnormalities. Subsequent to the Board's remand a March 2013 rating decision increased the rating for the Veteran's low back disability to 20 percent, effective March 7, 2013. As such, the Board must consider whether a rating higher than 10 percent for lumbar spine disability from September 18, 2009 through March 6, 2013 is warranted, and whether a rating higher than 20 percent for lumbar spine disability from March 7, 2013 is warranted. The file is absent for clinical findings of low back disability for the period from September 18, 2009 through December 19, 2012, and a rating in excess of 10 percent for that time period is not warranted. However, at the December 2012 private examination the Veteran's thoracolumbar spine had forward flexion of only 30 degrees. As such, a rating of 40 percent for low back disability is warranted from that time. As for ratings in excess of 40 percent, as unfavorable ankylosis of the entire thoracolumbar spine has not been shown or approximated on the December 2012 or March 2013 examinations, a 50 percent rating is not warranted. Under the Formula for rating Intervertebral Disc Syndrome Based on Incapacitating episodes, the next higher rating or 60 percent is assignable for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Under this formula, and "incapacitating episode" is a period of acute signs or symptoms that requires bed rest prescribed, and treatment provided, by a physician. Diagnostic Code 5243, Note (1). The medical evidence does not reveal any incapacitating episodes caused by the service-connected lumbar spine to the extent that the assignment of a 60 percent rating under Intervertebral Disc Syndrome formula. Indeed, there appears to be no evidence of any incapacitating episodes related to the Veteran's spine. As such, a rating in excess of 40 percent under the alternative ratings formula for intervertebral disc disease is not warranted. Any associated objective neurologic abnormalities, such as may affect the extremities, or cause bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. Note (1). The Board observes that there is no objective evidence of any neurological complications as a result of service-connected low back disability, and the Veteran has not asserted as much. The Board observes that both the December 2012 private examiner and the March 2013 VA examiner specifically noted that the Veteran had no radiculopathy associated with the Veteran's low back disability. D. Summary of the back Based on the foregoing, the Board has found that while a rating in excess of 10 percent for lumbar spine degenerative changes from September 18, 2009 through December 19, 2012 is not warranted, a rating of 40 percent for lumbar spine degenerative changes from December 20, 2012 is warranted by the evidence of record. Conclusion While the Veteran is competent to give evidence about what he observes or experiences concerning his knees and his low back disability, he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's knee and low back disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's knee and spine disabilities are evaluated, including range of motion. As such, the Board finds these records to be the most probative evidence with regard to whether higher ratings are warranted. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's knee or spinal disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's knee and spine disabilities have been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by the service-connected knee and spinal disabilities. The Veteran's symptoms such as pain and limitation of motion are specifically enumerated under the multiple Diagnostic Codes discussed in this decision. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating in excess of 10 percent for right knee degenerative joint disease from September 18, 2009 through December 19, 2012 is denied. A rating of 20 percent for right knee degenerative joint disease (for limitation of right knee flexion) from December 20, 2012 through March 6, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A separate 10 percent rating for right knee limitation of extension from December 20, 2012 through March 6, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A rating in excess of 10 percent for right knee degenerative joint disease from March 7, 2013 is denied. A separate 10 percent rating for right knee subluxation, from December 20, 2012 through March 6, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A rating in excess of 10 percent for left knee degenerative joint disease from September 18, 2009 through December 19, 2012 is denied. A rating of 20 percent for left knee degenerative joint disease (for limitation of left knee flexion) from December 20, 2012 through March 6, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A separate 10 percent rating for limitation of left knee extension from December 20, 2012 through March 6, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A rating in excess of 10 percent for left knee degenerative joint disease from March 7, 2013 is denied. A rating in excess of 10 percent for left knee, symptomatic removal of the semilunar knee cartilage from September 19, 2009 is denied. A rating in excess of 10 percent for lumbar spine degenerative changes from September 18, 2009 through December 19, 2012 is denied. A rating of 40 percent for lumbar spine degenerative changes from December 20, 2012 is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs