Citation Nr: 1325530	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO. 10-12 165	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for herniated nucleus pulposus. 

2. Entitlement to a disability rating in excess of 10 percent for anterior cruciate ligament tear of the right knee. 

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from January 1988 to October 1993.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO), located in Decatur, Georgia.

A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. 


FINDINGS OF FACT

1. The Veteran's herniated nucleus pulposus was productive of subjective complaints of pain and stiffness and with objective findings of limitation of motion of the thoracolumbar spine demonstrating flexion to 50 degrees, at worst, with pain from 30 to 50 degrees; there were no incapacitating episodes and no objective findings of additional limitation of motion or function due to painful motion, fatigue, weakness or incoordination. 

2. The Veteran's anterior cruciate ligament tear of the right knee was productive of subjective complaints of pain and giving way with objective findings of flexion to 105 degrees with pain at 90 degrees, at worst, extension to 10 degrees, at worst, with pain at endpoint; there were no objective findings of instability or subluxation or additional limitation of function due to painful motion, fatigue, weakness or incoordination. 

3. The Veteran is service-connected for herniated nucleus pulposus, rated as 20 percent disabling; anterior cruciate ligament tear of the right knee, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; avulsion fraction of the left knee, rated as noncompensable; and right ear hearing loss, rated as oncompensable. The combined rating of all service-connected disabilities is 40 percent, from June 14, 2007. Prior to June 14, 2007, the Veteran's combined rating of all service-connected disabilities was rated at 30 percent. 

4. The credible and probative evidence does not demonstrate that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. 


CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 20 percent for herniated nucleus pulposus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012).

2. The criteria for a disability rating in excess of 10 percent for anterior cruciate ligament tear of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5259, 5260, 5261 (2012).

3. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act (VCAA)

Under the VCAA, VA 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 that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided notice of the VCAA in June 2007. An additional VCAA letter was sent in April 2010. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. 

The Veteran also received notice in June 2007 and April 2010, pertaining to the successive "downstream" disability rating and effective date elements of his claim and a statement of the case (SOC) was issued in February 2010. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

Service connection for herniated nucleus pulposus and anterior cruciate ligament tear of the right knee has been established and an initial rating for this condition has been assigned. The claim has therefore been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. Notice under the VCAA is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. 

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes VA outpatient treatment reports, VA examinations, and statements from the Veteran and his representative. 

The December 2007, January 2010 and May 2010 VA examination reports reflect that the examiners reviewed the Veteran's medical history, documented his current medical conditions, and rendered appropriate diagnoses and conclusions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the medical examinations are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Moreover, the evidence of record does not indicate, and the Veteran has not alleged, that his disability has worsened since the last VA examination in May 2010. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95; see also 38 C.F.R. § 3.327. 

The Veteran has not indicated that he has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012).

The Merits of the Appeal

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in the disorder, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling. VA must consider not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

Herniated Nucleus Pulposus

The Board has conducted an extensive review of this matter and has concluded that the Veteran's herniated nucleus pulposus warrants no more than a disability rating of 20 percent at any time during the pendency of the appeal, under Diagnostic Code 5243. 

The Veteran's herniated nucleus pulposus was assigned a 20 percent disability rating under the provisions of Diagnostic Code 5243, pertaining to intervertebral disc syndrome. 38 C.F.R. § 4.71a (2012). 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 

A 20 percent rating 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 40 percent rating 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 rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine.
Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).

Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a (2012).

Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a (2012).

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the  following: difficulty walking because of a limited line of  vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal  margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a (2012).

Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a (2012).

Under Diagnostic Code 5243, intervertebral disc syndrome or disc disease, may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever 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, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a (2012).

Note 1 to the Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a (2012).

VA outpatient treatment reports from June 2006, within a year of the Veteran's claim, to February 2010 reflect that the Veteran was treated for complaints of low back pain which had been treated with medication and acupuncture. 

A May 2006 VA magnetic resonance imaging (MRI) report revealed findings of persistent stable pattern of left paracentral L4-5 annular protrusion and broad based L3-4 annular bulge; focal high signal in posterior annular fibers L5-S1 which may represent a more recent annular tear, with no apparent disc material protrusion; interval appearance of type I modic changes with fibrovascular subchondral marrow response on the right of midline at the inferior endplates L4 and L2; and preservation of lumbar spinal alignment. 

In a July 2006 VA outpatient treatment report, the Veteran was sent to have acupuncture for his low back pain which was assessed without radicular symptoms. 

In a February 2007 VA outpatient treatment report, the Veteran complained of having low back pain, back spasms and difficulty with walking more than 20 feet. Later in February 2007 he presented to the VA medical center (VAMC) with complaints of low back pain without radicular symptoms and with increased pain and tightness in the back. He reported that medication, Lortab and Motrin, had some benefit, although tightness remained and limited his activity. A physical examination revealed no distress with walking slightly bent over, normal deep tendon reflexes, strength at 5/5 in the lower extremities and muscle spasm in the lumbar area. The Veteran was assessed with low back strain with no radicular component and was continued on medications and advised to use heat, stretching and massage to help reduce spasm and relieve pain. 

A few days later in February 2007 he reported low back pain without radicular symptoms which began when he had performed heavy lifting over the past weekend. At that time, he denied having bowel or bladder incontinence or any pain, numbness, or tingling down the legs. He reported pain was constant and aching with tightness and worsened with walking. A physical examination reflects The Veteran reported working at a recycling facility which involved heavy lifting. Findings revealed paraspinal tenderness to palpation in L3 to L5, no erythema, negative straight leg raise on right, straight leg raise on left at 45 degrees with pain radiating to left side. Medication was provided. In an addendum to this treatment report, the VA physician noted that low back radiculopathy would not cause tingling in the fingers as complained of by the Veteran. 

A March 2007 VA outpatient treatment report reflects the Veteran was treated for an exacerbation of back pain due to a lot of heavy lifting in the past month. The pain was not relieved with his current medication. A physical examination revealed tenderness to palpation and negative straight leg raise test. He was assessed with the possibility of spinal trauma due to strenuous physical activity in the setting of preexisting vertebral abnormalities. Additional pain medication was prescribed. A separate March 2007 VA outpatient neurosurgery referral revealed symptoms of pain in the lower back without radicular symptoms. 

A March 2007 VA x-ray of the lumbar spine revealed mild degenerative changes of the lower lumbar spine and no compression fractures. 

In April 2007 VA MRI of the lumbar spine was performed pursuant to the Veteran's history of worsening low back pain after significant strain on the low back at work. The MRI report revealed findings of degenerative disc disease throughout the lumbosacral spine with multilevel facet arthropathy, no disc herniation, and significant spinal canal stenosis or significant neural foramina stenosis noted. 

A June 2007 VA outpatient treatment report reflects that the Veteran presented to the VA with complaints of chronic back pain and requested pain medication. He reported pain was exacerbated approximately four months earlier with heavy lifting. The Veteran also reported having increased tightness in the lower extremities which was relieved by walking. He stated back pain continued to interfere with work and there was no change in pain or response to therapy. The Veteran was assessed with chronic low back pain and the VA physician noted that the April 2007 MRI did not reveal surgically correctable abnormalities. He was continued on medication for his back pain. 

In a July 2007 VA outpatient treatment report, a VA physician found that the Veteran had chronic back pain without any neurological deficits and/or operable discs per neurosurgery. He also noted there was no indication of unemployability. The VA physician found that while the Veteran may not be suited for manual labor, that did not mean he was unemployable. 

At a December 2007 VA examination, the Veteran reported that since his last VA examination, his low back condition had become worse. Symptoms included constant aching pain, rated as a five out of 10 in severity, with associated stiffness. Flare-ups included sharp lower back pain, rated as an eight out of 10 in severity, with associated intermittent radiating right leg pain that occurred about once a month and lasted about one to two days when he was removing batteries out of cars. The Veteran reported that the pain level would last for approximately four days before the pain decreased. Current medication included Hydrocodone and Morphine, which helped reduce the pain with no side effects. The Veteran denied a history of lumbar spine surgery and denied any other associated symptoms. Precipitating factors included prolonged positioning and bending over. The Veteran denied the use of any assistive devices. 

He denied any limitations in the ability to care for his own activities of daily living. The Veteran reported having to stop driving every hour to get out and walk around and stretch to help prevent increased pain. He also reported an inability to plant or garden in his yard due to the bending over involved. He stated he took more frequent breaks when raking and weed eating due to the pulling involved in these activities. The Veteran had no difficulty cutting the grass with a riding lawn mower and denied any difficulty with most home chores, with the exception of cleaning out a tub or doing any type of plumbing repairs, which would increase his back pain. He reported that he took things slow and easy when engaging in recreational activities. The Veteran stated his low back condition slowed him down with his job duties and that he had to take more frequent breaks, which he reported was easy due to the flexibility afforded to him. The Veteran reported that he performed clerical work for two days a week and physical work for three days a week due to his back condition. He reportedly lost 40 days from work in the past 12 months due to his low back condition, however, none of those days had been doctor ordered periods of incapacitation because it was not required by his family owned business. In terms of his work history, the Veteran worked in a family owned salvage yard and had performed various jobs with operating business since 1999. He worked as a project manager for Lynn Electric Co. from 1997 to 1999. He worked from 1995 to 1997 as a quality engineer. He worked as a manager at a discount auto parts store from 1993 to 1995. He worked as an electronics repairmen on aircraft from 1988 to 1993. He also reported working at a "bunch of junk jobs" prior to entering the Air Force. 

A physical examination revealed he was not using any assistive devices for ambulation and had no obvious gait or balance abnormalities. The Veteran's posture was erect without obvious spinal deformity and there was no limping noted when he walked into the exam room. There was no pain with palpation over the lower lumbar vertebral bodies or the bilateral paraspinal muscles. There was no muscle spasm evident. Straight leg raise was negative bilaterally and Lasegue's sign was negative. Range of motion findings revealed forward flexion to 78 degrees with pain from 36 to 78 degrees, extension to 30 degrees with pain at endpoint, left and right lateral flexion to 30 degrees without pain, and left and right lateral rotation to 30 degrees without pain. Repetitive motion testing did not cause increased subjective complaints of pain and did not change the range of motion or joint fatigability. Pain still occurred at some point of range of motion. 

There was no instability, weakness or incoordination and there were no objective signs of pain with the examination. Deep tendon reflexes were at +2 in all extremities. Sensation in all extremities, vibratory sense and position sense were all intact. The examination reiterated the April 2007 MRI findings of the lumbar spine. The Veteran was diagnosed with lumbar degenerative disc disease, per MRI results, with no evidence of disc herniation. The examiner opined that the Veteran was not unemployable but would benefit from work that did not require manual labor due to his lumbar and knee condition. 

During a January 2010 VA examination the Veteran complained of having a constant, dull ache in the back that increased with bending, strenuous activity or prolonged sitting. Pain was alleviated by lying supine with his feet elevated and with medication. The Veteran complained of associated stiffness and flare-ups occurring approximately once every other week and lasting for two to three days. Flare-ups were reported as severe. Flare-ups were precipitated by the above noted aggravating factors and alleviated by rest and medications. The Veteran denied weight loss, unsteady gait, fever, chills, dizziness, or visual disturbances. He denied any numbness, weakness, erectile dysfunction, or bowel or bladder complaints. He did not mention a walking or standing limitation. Current treatment included reportedly effective Hydrocodone and Naproxen which reportedly did not help. The Veteran stated he used a cane at times to assist with ambulation. He reported he was functioning in his current job except when he needed to bend, which aggravated his pain and slowed him down at work. He stated he was not able to do his job as fast as his company expected and feared that put him in danger of losing his job. The Veteran reported that he liked to rebuild old cars and was limited in his ability to work on them due to his back pain. He stated he could not use a weed eater but was able to mow his lawn since he had a riding lawn mower. The Veteran denied any incapacitating episodes in the past 12 months in which he was prescribed bed rest by a physician. 

A physical examination revealed the Veteran's gait was normal. There was tenderness to palpation of the bilateral lumbar paraspinal muscles and at the lumbosacral junction. Manual muscle testing was at five out of five in the bilateral lower extremities. Sensation was intact to light touch and muscle stretch reflexes were 2+ bilaterally with down going Babinski responses and no ankle clonus. Lasegue's sign was negative bilaterally. A goniometer was used to measure range of motion. Range of motion of the thoracolumbar spine revealed flexion to 50 degrees with pain from 30 to 50 degrees, extension to 15 degrees with pain from 10 to 15 degrees, and left and right lateral flexion and rotation to 25 degrees with pain from 20 to 25 degrees. On repetitive testing, there was no additional limitation due to painful motion, fatigue, weakness or incoordination and range of motion values were unchanged from the baseline testing. 

The examiner noted that the April 2007 MRI of the lumbar spine demonstrated degenerative disc disease throughout the lumbosacral spine with multilevel facet arthropathy and there was no evidence of disc herniation, significant spinal canal stenosis or neuroforaminal stenosis. The Veteran was diagnosed with lumbar degenerative disc disease, lumbosacral spondylosis and service-connected herniated nucleus pulposus with no current MRI evidence of herniated nucleus pulposus. The examiner found the first two diagnoses were most likely directly related to the Veteran's history of a herniated nucleus pulposus. The examiner found that the Veteran was capable of both physical and sedentary employment, however, the right knee and lower back pain were most likely making it difficult for the Veteran to work at a pace that was acceptable to his employer. Thus, the examiner noted it may be difficult for the Veteran to maintain substantially gainful employment with a physical job, although he should be able to handle a sedentary job without much difficulty. 

At a May 2010 VA examination for fibromyalgia, the Veteran reported he did not have fibromyalgia and did not wish to file a claim for that condition. The examiner proceeded to examine the Veteran's low back and right knee disabilities. The Veteran complained of constant pain in the lower back which was rated as a five out of 10 in severity. Pain was described as a dull ache which did not radiate. Treatment included medication, Hydrocodone, which reportedly helped only temporarily. The Veteran also reported having flare-ups occurring once a week and lasting one to two days, which were rated as a seven out of 10 in severity. Precipitating factors included too much physical activity and alleviating factors included rest and taking medication. The Veteran also reported stretching exercise and use of an inversion table for alleviating pain. 

No incapacitation during flare-ups was reported. The Veteran reported having additional functional impairment during flare-ups including, no activities that required prolonged standing, sitting, walking bending or lifting. He denied any associated symptoms including weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints or sexual dysfunction. 

The Veteran reported that he used a cane during flare-ups and that he sometimes wore a back brace when working. He stated he was able to walk for 20 to 30 minutes before having to stop and rest. No unsteadiness or history of falls was reported. The Veteran denied any limitations on the ability to care for his own activities of daily living. He was unable to perform any prolonged walking or standing and stated that driving for long periods caused increased pain. He reiterated he could not perform activities that required prolonged standing, sitting, walking, bending or lifting. The Veteran was no longer able to play sports or run. He stated that he last worked as a pest control tech for seven months, ending in March 2010 and the job required a lot of walking and lifting. The Veteran reported that he was fired because he could not perform the job duties well. Prior to this occupation he worked at a junk yard/recycling center for 11 years as a technician and stopped working because his father had "sold the place."  The Veteran reported he missed several days from work in the past 12 months to attend doctors' appointments. He had no doctor ordered periods of incapacitation in the past 12 months. 

The examiner noted the Veteran walked with a guarded gait and stated that he had to plan his movements. A physical examination revealed the Veteran's gait was mildly antalgic and no orthotic or prosthetic device was used or worn at that time. No paravertebral spasms or point tenderness was noted. There was no evidence of weakness, atrophy or guarding. Straight leg raise was negative bilaterally. Range of motion findings revealed, forward flexion to 90 degrees without pain, extension to 20 degrees with pain at endpoint, left lateral flexion to 30 degrees with pain at endpoint, right lateral flexion to 30 degrees without pain, left lateral rotation to 30 degrees with pain throughout and right lateral rotation to 30 degrees without pain. The Veteran had a subjective report of increased pain during three repetitions of range of motion, however, the examiner found no objective indicators of pain, fatigue, lack of endurance, weakness or incoordination with three repetitions. There was no additional loss of function or use with repetitive motion. A neurological examination revealed deep tendon reflexes at 1+ in all four extremities, muscle strength at five out of five in the bilateral lower extremities, normal muscle tone ad no muscle atrophy or wasting. The Veteran moved all extremities without difficulty. A sensory examination was normal in all four extremities, including sacral segments. There was no evidence of any non-organic physical signs. The April 2007 MRI findings were reiterated in the examination report. 

The Veteran was diagnosed with degenerative disc disease throughout the lumbosacral spine with multilevel facet arthropathy. The examiner noted the Veteran's report that he last worked as a pest control tech for seven months, ending in March 2010, that his job required lots of walking and lifting and that he was fired because he could not perform his job duties well. Prior to this job the Veteran reported working at a junkyard/recycling center for 11 years as a technician and stopped working because his father had sold the establishment. The Veteran admitted to constant dull pain in the back and right knee which affected his ability to sit, stand or walk for longer than 10 to 15 minutes at a given time. He was taking medication, Hydrocodone, four times a day with no reported side effect. He stated he could not safely lift anything greater than 10 to 20 pounds unassisted. The Veteran reported that he was able to work and wanted to work. He reported that "as a matter of fact [he] [had] an interview in Chicago for a quality control position" and that he was able to perform "jobs that [did not] require [him] to have to use [his] back and [his] knee so much."

The Veteran's herniated nucleus pulposus warrants no more than a disability rating of 20 percent throughout the duration of the appeal under Diagnostic Code 5243. The probative evidence of record, including VA medical records and the December 2007, January 2010 and May 2010 VA examinations, demonstrates that the Veteran's herniated nucleus pulposus, now diagnosed as degenerative disc disease of the lumbar spine, has been productive of complaints of pain and stiffness and with objective findings of limitation of motion of the thoracolumbar spine demonstrating flexion to 50 degrees with pain from 30 to 50 degrees at worst. The evidence of record also demonstrates no incapacitating episodes and no objective findings of additional limitation of motion or function due to painful motion, fatigue, weakness or incoordination. 

In addition, the most recent VA examination in May 2010 revealed that, despite the Veteran's reports of using a cane and a back brace during flare-ups and his mildly antalgic gait, he was walking unassisted at the appointment and the range of motion findings had significantly improved from his last VA examination in January 2010, earlier that year. The physical examination in the January 2010 VA examination report revealed forward flexion to 50 degrees with pain from 30 to 50 degrees, demonstrating the Veteran's lumbar spine disability at its most disabling range of motion. However, approximately five months after the January 2010 VA examination, the May 2010 VA examination report revealed forward flexion to 90 degrees without pain, and although the Veteran had a subjective report of increased pain during three repetitions of range of motion, the examiner found no objective indicators of pain, fatigue, lack of endurance, weakness, incoordination or any additional loss of function or use with three repetitions. While the medical evidence demonstrates findings of some muscle spasm in a February 2007 VA outpatient treatment report and the May 2010 VA examiner noted he walked with a guarded gait, both muscle spasm or guarding symptoms which are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis, are considered in the 20 percent rating criteria currently assigned. 

The Veteran's herniated nucleus pulposus does not therefore meet the criteria for a higher disability rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, as there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. 

At no point during the pendency of the appeal does the Veteran's herniated nucleus pulposus meet the criteria for a higher disability rating in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The objective medical evidence of record does not show at any time throughout the duration of the appeal that the Veteran had incapacitating episodes of intervertebral disc syndrome wherein a physician had prescribed bed rest. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Veteran has also not alleged at any time throughout the duration of the appeal that any physician has prescribed bed rest for an incapacitating episode of his herniated nucleus pulposus. In addition, as demonstrated by his reports in the December 2007, January 2010 and May 2010 VA examinations, while he reported that he missed work due to his low back condition, including up to 40 days in the December 2007 VA examination, he specifically denied having any incapacitating episodes wherein a physician had prescribed bed rest. Consequently, the Veteran's disorder does not meet the criteria for a disability rating in excess of 20 percent based on incapacitating episodes of intervertebral disc syndrome. 

The assignment of a 20 percent evaluation, also considers the DeLuca factors, mandating consideration of limitation of motion due to pain on use, including flare-ups. See DeLuca, supra. The December 2007, January 2010 and May 2010 VA examiners all found that with repetitive motion, there was no additional limitation of function or use. The December 2007 VA examiner also noted that with repetitive motion there was no increased subjective complaints of pain, no change in the range of motion or joint fatigability, and no instability, weakness or incoordination.  He also found no objective signs of pain. The January 2010 VA examiner noted that with repetitive motion there was no additional limitation due to painful motion, fatigue, weakness or incoordination. The May 2010 VA examiner also noted there were no objective indicators of pain, fatigue, lack of endurance, weakness or incoordination with three repetitions. 

The Board has also considered whether separate ratings are warranted based on neurological manifestations of the Veteran's thoracolumbar spine, however, the evidence does not reflect any neurological abnormalities and the Veteran has not complained of any neurological defects or radicular pain into the lower extremities at any time throughout the duration of the appeal. In a February 2007 VA outpatient treatment report, the Veteran complained of low back pain without radicular symptoms and he denied having bowel or bladder incontinence or any pain, numbness, or tingling down the legs. 

Although findings in the February 2007 VA outpatient treatment report revealed straight leg raise on left at 45 degrees with pain radiating to left side, no low back radicular signs or symptoms were noted and a subsequent March 2007 VA outpatient treatment report reflects a negative straight leg raise test. Thereafter, a separate March 2007 VA outpatient neurosurgery referral revealed symptoms of pain in the lower back without radicular symptoms. The December 2007 VA examination revealed negative straight leg raise bilaterally, negative Lasegue's sign, deep tendon reflexes at +2 in all extremities, sensation in all extremities, and vibratory sense and position sense were all intact. In the January 2010 VA examination he denied any numbness, weakness, erectile dysfunction, or bowel or bladder complaints and a neurological evaluation revealed muscle stretch reflexes were 2+ bilaterally with down going Babinski responses, no ankle clonus and negative Lasegue's sign, bilaterally. In the May 2010 VA examination the Veteran denied any associated symptoms to his low back condition, including weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints or sexual dysfunction and a neurological evaluation revealed deep tendon reflexes at 1+ in all four extremities, muscle strength at five out of five in the bilateral lower extremities, normal muscle tone and no muscle atrophy or wasting. Therefore, the evidence does not support the award of any separate ratings based upon neurological manifestations of the thoracolumbar spine. 

In reaching the above conclusions, the Board has considered the lay statements and testimony by the Veteran with regard to the severity of his service-connected lumbar spine and in large part has relied on his reports in determining an appropriate disability rating under the benefit-of-the-doubt doctrine. The Veteran is competent to report on factual matters of which he had firsthand knowledge and thus, he is competent to report his current symptomatology as it pertains to his lumbar spine. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, the Veteran's reports to his treatment providers and the VA examiners were relied upon in addition to the objective medical evidence when determining the appropriate rating for this disability. Thus, the Veteran's reports with respect to experiencing symptoms of his herniated nucleus pulposus have been considered in evaluating his disability rating in this decision. 

The record does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than the 20 percent assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability has been no more than 20 percent disabling since the effective date of his award. Further "staged" ratings are therefore not appropriate. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefits sought on appeal are accordingly denied.

Anterior Cruciate Ligament Tear of the Right Knee

The Board has conducted an extensive review of this matter and has concluded that the Veteran's anterior cruciate ligament tear of the right knee warrants no more than a disability rating of 10 percent at any time during the pendency of the appeal under the applicable diagnostic criteria. 

The Veteran's right knee has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012), which provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a.

Diagnostic Code 5003 provides that degenerative arthritis that is 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. Id. 

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. 

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. 

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. 

Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. 

Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Id.

Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). 

Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). 

Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 (providing rating for arthritis) and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003/5010 and 5257, respectively. More recently, the VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

The Veteran contends that his current anterior cruciate ligament tear of the right knee warrants a higher disability rating than the 10 percent currently assigned. 

VA outpatient treatment reports from June 2006, within a year of the Veteran's claim, to February 2010 reflect that the Veteran was treated for knee complaints during the period currently on appeal beginning in March 2009. These records will be discussed in further detail below. 

At a December 2007 VA examination, the Veteran reported that since his last VA examination, his right knee condition had become worse. Current symptoms included intermittent pain, rated at a two to four out of 10 in severity, with a "catching" sensation that occurred daily with ascending or descending stairs. The Veteran reported that pain would abate within one to two minutes of avoiding weight bearing. He denied a history of flare-ups or additional limitations. The Veteran denied any other associated symptoms. Alleviating factors included medication, Hydrocodone. He denied any episodes of dislocation, a history of inflammatory arthritis or the presence of a prosthesis. The Veteran reported that he wore a knee brace when he was engaged in a lot of physical activity at work. He denied any functional limitations in the ability to care for his own activities of daily living and denied having any effect on his ability to drive, perform yard work, perform home maintenance tasks or engage in recreational activity. The Veteran reported that the only limitation of his knee condition was that it slowed him down due to his having to be careful and compensate with alternate movements when he is engaged in any type of activity. He denied this condition had any effect on his ability to perform his job duties and denied any loss from work or doctor ordered periods of incapacitation in the past 12 months. 

Regarding his work history, the Veteran worked in a family owned salvage yard and had performed various jobs with operating business since 1999. He worked as a project manager for Lynn Electric Co. from 1997 to 1999. He worked from 1995 to 1997 as a quality engineer. He worked as a manager at a discount auto parts store from 1993 to 1995. He worked as an electronics repairmen on aircraft from 1988 to 1993. He also reported working at a "bunch of junk jobs" prior to entering the Air Force. 

A physical examination revealed that the Veteran was not using any assistive devices for ambulation and there were no obvious gait or balance abnormalities. There was no edema, erythema or warmth of the joint. There was no tenderness to palpation of the knee joint. There was hypertrophy of bony prominences of the knee when compared to the right. There was no palpable crepitus noted with range of motion. Bulge sign and patellar ballottement were negative. There was no joint laxity or instability. Lachman's and McMurray tests were negative. Muscle strength was five out of five in the quadriceps. Range of motion findings revealed flexion to 118 degrees and extension to 3 degrees, both without pain. Repetitive motion testing did not cause increased pain, change of range of motion or joint fatigability. There was no instability, weakness or incoordination. There were no objective signs of pain with the examination. A neurological examination revealed deep tendon reflexes at 2+ in all extremities, intact sensation, intact vibratory sense and intact position sense. An x-ray of the right knee revealed tricompartmental right knee osteoarthritis superimposed over post-surgical changes consistent with anterior cruciate ligament (ACL) repair, ancillary findings most consistent with remote bilateral collateral ligament injuries, and tiny metallic foreign body within the soft tissues of the anterior to the right lateral patellar facet. The Veteran was diagnosed with tricompartmental osteoarthritis with bilateral collateral ligament injuries and metallic foreign body within the soft tissues. The examiner opined that the Veteran was not unemployable but would benefit from work that did not require manual labor due to his lumbar and knee condition. 

In a March 2009 VA outpatient treatment report, the Veteran complained of locking in the right knee for the past one and a half weeks. The reason for the visit was a fall secondary to locking of the right knee. The Veteran was assessed with knee locking and was to have an MRI and a follow up appointment in two months. 

An April 2009 VA MRI report of the right knee revealed findings of significant artifact from ACL repair; the only meniscal ACL fiber residual identify and graft tear were to be considered; small joint effusion; osteochondral malacia of the patella with lateral tilt and associated osteophyte formation; meniscal intersubstance degeneration with evidence of intersubstance degeneration bilaterally; superior surface tear of the posterior horn; and lateral meniscus was noted. 

A September 2009 VA outpatient treatment report revealed the Veteran complained of reinjuring his right knee about four days earlier and reported the knee was swollen with popping and crunching sounds. He stated that as long as he did not try to bend the knee, his pain level at a four to five out of 10, but walking or bending the knee caused the pain level to increase to an eight out of 10. Moderate to severe knee pain, worsening knee pain and skin swelling were noted. No follow up of knee problems were noted in the remaining VA outpatient treatment reports. 

In a January 2010 VA examination, the Veteran complained of locking episodes and pain on an almost daily basis. He reported that, if he went slow, up and down a staircase for example, he was generally okay. He reported that if he moved at a normal pace, the knee would lock up and cause pain, generally lasting from several minutes to an hour. He complained of giving way and swelling that came and went, weakness, and nightly flare-ups occurring once or twice a month, which were moderate to severe. The Veteran could not identify any precipitating factors. Pain was alleviated by rest, Hydrocodone and getting up and moving around. Current treatment included medication, Hydrocodone and Naproxen. 

A physical examination revealed that the Veteran had a normal gait pattern. Small right knee joint effusion and tenderness to palpation of the patellofemoral joint and medial joint line were noted. Lachman's and McMurray's tests were negative. Patellar grind test was mildly positive. A goniometer was used to measure range of motion which revealed right knee flexion from five to 105 degrees with pain from 90 to 105 degrees, and extension from 10 to five degrees. On repetitive testing, there was no additional limitation due to painful motion, fatigue, weakness, or incoordination and range of motion values were unchanged from baseline testing. 

As the Veteran was not then having a flare up, the examiner reported it would be speculative to report limitation during a flare. The examiner reiterated the findings demonstrated in the April 2009 VA MRI of the right knee. The Veteran was diagnosed with status post right anterior cruciate ligament graft, lateral meniscus tear and chondromalacia patella. The examiner found that each of the above diagnoses were either directly or indirectly related to the Veteran's history of right ACL tear. The examiner found that the Veteran was capable of both physical and sedentary employment; however, the right knee and lower back pain were most likely making it difficult for the Veteran to work at a pace that was acceptable to his employer. Thus, the examiner noted it may be difficult for the Veteran to maintain substantially gainful employment with a physical job, although he should be able to handle a sedentary job without much difficulty. 

At a May 2010 VA examination for fibromyalgia, the Veteran reported he did not have fibromyalgia and did not wish to file a claim for that condition. The examiner proceeded to examine the Veteran's low back and right knee disabilities. The Veteran's reported right knee symptoms included constant and dull pain, stiffness, instability and intermittent locking. He denied weakness, deformity, instability or giving way, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness or drainage. Treatment included medication, Hydrocodone, which the Veteran reported helped. No side effects of treatment were reported. Flare-ups were rated at a seven to eight out of 10 in severity and occurred daily when the Veteran moved his knee the wrong way. Flare-ups lasted a few minutes. Precipitating factors included sudden changes in position and alleviating factors included sitting down for a few minutes. Additional limitation of motion or functional impairment during flare up included no bending at the knee or prolonged standing. No orthotic devices were used. The Veteran reported he did not use crutches, a brace, a cane or corrective shoes and there was no use of a prosthesis. No incapacitating exacerbations related to inflammatory arthritis were noted. The Veteran denied any limitations in the ability to care for his own activities of daily living, such as bathing or grooming. He stated the effects on his mobility included no prolonged standing or walking. The Veteran reported that driving for long periods would cause increased pain in the left cause his leg to go to sleep. The effect on the Veteran's ability to complete yard work and household chores included no activities that required prolonged standing, sitting, walking, squatting, kneeling, or lifting. He reported that he would have to change positions after about 10 minutes to prevent his knee from hurting too badly. 

The Veteran was no longer able to play sports or run. He stated that he last worked as a pest control tech for seven months, ending in March 2010 and the job required a lot of walking and lifting. The Veteran reported that he was fired because he could not perform the job duties well. Prior to this occupation he worked at a junk yard/recycling center for 11 years as a technician and stopped working because his father had "sold the place."  The Veteran reported he missed several days from work in the past 12 months to attend doctors' appointments. He had no doctor ordered periods of incapacitation in the past 12 months. Functional limitations on standing and walking included that the Veteran walked with a guarded gait and said he had to plan his movements. 

A physical examination revealed the right knee was negative for edema or erythema upon inspection. There was evidence of a loss of normal curvature. A well healed surgical scar was noted. There was no tenderness, hypertrophy of bony prominences or instability on palpation. Mild crepitus was noted on palpation. There was no evidence of callus formation, skin breakdown or unusual shoe wear pattern. Drawers and McMurray's tests were negative. Muscle strength was at a five out of five. Range of motion findings revealed flexion from 10 to 110 degrees with pain at endpoint, and extension to minus 10 degrees with pain at endpoint. No objective findings of pain, weakness, incoordination, fatigue or lack of endurance with three repetitions was noted. There was no additional loss of function with repetitive motion. A neurological examination revealed deep tendon reflexes at 1+ in all four extremities, muscle strength at five out of five in the bilateral lower extremities, normal muscle tone and no muscle atrophy or wasting. The Veteran moved all extremities without difficulty. A sensory examination was normal in all four extremities, including sacral segments. There was no evidence of any non-organic physical signs. An April 2010 x-ray of the right knee was noted to demonstrate degenerative changes in each knee, right greater than left, with previous right sided ACL repair. The April 2009 VA MRI of the right knee was reiterated in this report. 

The Veteran was diagnosed with status post ACL reconstruction with radiological evidence of advanced degeneration of the right knee, osteochondral malacia and superior surface tear of the posterior horn of the lateral meniscus. The examiner noted the Veteran's employment history 
The Veteran's anterior cruciate ligament tear of the right knee warrants no more than a disability rating of 10 percent throughout the duration of the appeal. The probative evidence of record, including VA medical records and the December 2007, January 2010 and May 2010 VA examinations, demonstrates that the Veteran's anterior cruciate ligament tear of the right knee was productive of subjective complaints of pain and giving way with objective findings of flexion to 105 degrees with pain at 90 degrees, at worst, and extension to 10 degrees, at worst, with pain at endpoint. The evidence of record also demonstrates there were no objective findings of instability or subluxation or additional limitation of function due to painful motion, fatigue, weakness or incoordination. 

The Veteran's anterior cruciate ligament tear of the right knee does not therefore meet the criteria for a higher disability rating in excess of 10 percent, as there is no evidence of flexion of the leg limited to 30 degrees, extension of the leg limited to 15 degrees or dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5260, 5261. While the Veteran has reports of locking and pain in the right knee, there was some evidence of small joint effusion noted by the April 2009 MRI and in the January 2010 VA examination, there is no evidence demonstrating the Veteran has dislocated semilunar cartilage with frequent episodes of locking, pain and joint effusion together. In addition, there is no objective evidence of subluxation or instability so as to consider the assignment of a higher rating under Diagnostic Code 5257. In this case, while the Veteran has reported locking episodes and giving way of the right knee, the VA examinations of record all demonstrate negative Lachman's, McMurray's and Drawer tests. In addition, in May 2010, while the Veteran reported having locking and instability symptoms of the right knee, he specifically denied any weakness, deformity, instability or giving way, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness or drainage. 

The assignment of a 10 percent evaluation is consistent with those factors as in  DeLuca, mandating consideration of limitation of motion due to pain on use, including flare-ups. See DeLuca, supra. The December 2007, January 2010 and May 2010 VA examiners all found that with repetitive motion, there was no additional limitation of function. The December 2007 VA examiner also noted that repetitive motion testing did not cause increased pain, change of range of motion or joint fatigability. The January 2010 VA examiner noted no additional limitation of function due to painful motion, fatigue, weakness, or incoordination and range of motion values were unchanged from baseline testing. The May 2010 VA examiner also noted there were no objective findings of pain, weakness, incoordination, fatigue or lack of endurance with three repetitions. 

Other appropriate diagnostic codes for application have been considered. However, as the Veteran's service-connected right knee does not reflect findings of ankylosis, recurrent subluxation or lateral instability, or an impairment of the tibia or fibula, at any time during the pendency of the appeal, Diagnostic Codes 5256, 5257 and 5262 do not apply. 38 C.F.R. § 4.71a. 

In reaching the above conclusions, the Board has considered the lay statements and testimony by the Veteran with regard to the severity of his service-connected right knee and in large part has relied on his reports in determining an appropriate disability rating under the benefit-of-the-doubt doctrine. The Veteran is competent to report on factual matters of which he had firsthand knowledge and thus, he is competent to report his current symptomatology as it pertains to his lumbar spine. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, the Veteran's reports to his treatment providers and the VA examiners were relied upon in addition to the objective medical evidence when determining the appropriate rating for this disability. Thus, the Veteran's reports with respect to experiencing symptoms of his anterior cruciate ligament tear of the right knee have been considered in evaluating his disability rating in this decision. 

The record does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than the 10 percent assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability has been no more than 10 percent disabling since the effective date of his award. Further "staged" ratings are therefore not appropriate. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefits sought on appeal are accordingly denied.

Extra-schedular Consideration

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule 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 regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.

The schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment should his disability worsen, which, as discussed above, the Veteran's symptoms do not meet. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243, 5259. Both criteria provide for worsening symptoms of the back, including incapacitating episodes and limitation of motion, as well as worsened symptoms of the knee, including dislocated cartilage with locking, pain and effusion, further limitation of both flexion and extension and, if present, a separate disability could be awarded for instability or subluxation. However, as discussed above in further detail, none of these worsening symptoms of the back or knee have been demonstrated by the evidence of record. 

The Veteran has reported having missed time from work due to his back disability, however, he has also specifically denied having any incapacitating episodes in which a physician has prescribed bed rest. See VA examinations dated in December 2007, January 2010 and May 2010. Moreover, most recently, the Veteran has reported in the May 2010 VA examination that he was able to work and wanted to work, stating that "as a matter of fact [he] [had] an interview in Chicago for a quality control position" and that he was able to perform "jobs that [did not] require [him] to have to use [his] back and [his] knee so much." 



Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

B. TDIU

The Board has conducted an extensive review of this matter and has concluded that, the Veteran does not meet the criteria for the award of a TDIU.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15.

"Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Since the date he raised his claim on June 14, 2007, the Veteran has maintained that had been unemployable due to his service-connected lumbar spine and right knee disabilities. 

The Veteran is service-connected for herniated nucleus pulposus, rated as 20 percent disabling; anterior cruciate ligament tear of the right knee, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; avulsion fraction of the left knee, rated as noncompensable; and right ear hearing loss, rated as noncompensable. The combined rating of all service-connected disabilities is 40 percent, from June 14, 2007. Prior to June 14, 2007, the Veteran's combined rating of all service-connected disabilities was rated at 30 percent. Therefore, the Veteran does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a) at any time throughout the period of this appeal; however, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(a), (b).

In a July 2007 VA outpatient treatment report, a VA physician found that the Veteran had chronic back pain without any neurological deficits and/or operable discs per neurosurgery. He also noted there was no indication of unemployability. The VA physician found that while the Veteran may not be suited for manual labor, that did not mean he was unemployable. 



In the December 2007 VA examination, the Veteran stated his low back condition slowed him down with his job duties and that he had to take more frequent breaks, which he reported was easy due to the flexibility afforded to him. He denied that his right knee condition had any effect on his ability to perform his job duties. The Veteran reported that he performed clerical work for two days a week and physical work for three days a week due to his back condition. The Veteran reported losing 40 days from work in the past 12 months due to his low back condition, however, none of those days had been doctor ordered periods of incapacitation because of it not being required by his family own business. The Veteran also denied any loss from work or doctor ordered periods of incapacitation in the past 12 months due to his right knee. In terms of his work history, the Veteran worked in a family owned salvage yard and had performed various jobs with operating business since 1999. He worked as a project manager for Lynn Electric Co. from 1997 to 1999. He worked from 1995 to 1997 as a quality engineer. He worked as a manager at a discount auto parts store from 1993 to 1995. He worked as an electronics repairmen on aircraft from 1988 to 1993. He also reported working at a "bunch of junk jobs" prior to entering the Air Force. The VA examiner found that the Veteran was not unemployable but would benefit from work that did not require manual labor due to his lumbar and knee condition. 

As noted, during a January 2010 VA examination the Veteran reported that he was doing "okay" with his current job except when he needed to bend, which aggravated his pain and slowed him down at work. The examiner found that the Veteran was capable of both physical and sedentary employment; however, the right knee and lower back pain were most likely making it difficult for the Veteran to work at a pace that was acceptable to his employer. Thus, the examiner noted it may be difficult for the Veteran to maintain substantially gainful employment with a physical job, although he should be able to handle a sedentary job without much difficulty. 

A March 2010 letter from the Veteran's former supervisor and service manager, R.E., at his previous place of employment, Yates-Astro Termite and Pest Control Company, reflects that the Veteran was hired in August 2009. R.E. stated that due to the Veteran's physical restrictions of his back and knee problems, he missed work on several occasions and had complications with completing his route in a timely manner. He also stated that the Veteran had to be released from employment with their company due to his inability to perform the required duties. 

In a May 2010, a response to a VA form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, was also received from the Veteran's former employer, Yates-Astro Termite and Pest Control Company. The information was provided by a different former supervisor, G.S., who indicated the Veteran's employment dates were from August 2009 to March 2010 and the Veteran worked as a Pest Control Tech for eight hours a day and 40 hours a week. G.S. reported that the reason for the Veteran' s termination of employment was that he would not complete his route on time, a supervisor would have to go to his home to wake him up and that he also had a night job. 

At a May 2010 VA examination for fibromyalgia, Veteran reported that he was able to work and wanted to work. He stated that "as a matter of fact [he] [had] an interview in Chicago for a quality control position" and that he was able to perform "jobs that [did not] require [him] to have to use [his] back and [his] knee so much."

Entitlement to a TDIU due to service-connected disabilities is not warranted. The evidence of record does not demonstrate that the Veteran is precluded from obtaining substantially gainful employment. See 38 C.F.R. § 4.16(b). There is no medical opinion or other competent medical evidence indicating that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. The July 2007 VA outpatient treatment report furnished by a VA physician, which was furnished upon the Veteran's request for an opinion regarding employability, indicates that the VA physician found there was no indication of unemployability and that, while the Veteran may not be suited for manual labor, that did not mean he was unemployable by his understanding of the term. The December 2007 VA examiner also found that the Veteran was not unemployable but would benefit from work that did not require manual labor due to his lumbar and knee condition. The January 2010 VA examiner found the Veteran was capable of both physical and sedentary employment; however, the right knee and lower back pain were most likely making it difficult for the Veteran to work at a pace that was acceptable to his employer. This examiner also noted it may be difficult for the Veteran to maintain substantially gainful employment with a physical job, although he should be able to handle a sedentary job without much difficulty. 

The Board also observes the conflicting reports by two of the Veteran's former supervisors, R.E. and G.S., both of whom represented the same company, Yates-Astro Termite and Pest Control Company. In a March 2010 letter, R.E. reported that due to the Veteran's physical restrictions of his back and knee problems, he missed work on several occasions and had complications with completing his route in a timely manner. He also stated that the Veteran had to be released from employment with their company due to his inability to perform the required duties. Thereafter, in a VA form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, the Veteran's former supervisor, G.S. reported that the reason for the Veteran' s termination of employment was that he would not complete his route on time, a supervisor would have to go to his home to wake him up and that he also had a night job. No mention of disability or physical limitations were noted in this response. 

In addition, the Veteran's contentions of unemployability are also in conflict with the statements he provided in the most recent VA examination in May 2010, in which he reported that he was able to work and wanted to work. He stated that "as a matter of fact [he] [had] an interview in Chicago for a quality control position" and that he was able to perform "jobs that [did not] require [him] to have to use [his] back and [his] knee so much."

The Board has considered statements by the Veteran that he believed he was unable to work due to his lumbar spine and right knee disabilities, however, he is not competent to specify the degree of severity of either his service-connected herniated nucleus pulposus or anterior cruciate ligament tear of the right knee as this would constitute a medical conclusion based upon a medical analysis of the symptomatology of these conditions which he has not been shown to be competent to make. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Moreover, the Veteran's statements that he is unable to work are wholly contradictory to his report in the May 2010 VA examination, in which he was provided an evaluation for unemployability as due to his service-connected lumbar spine and right knee disabilities and he specifically stated that he was able to work and wanted to work. These statements as to his claimed unemployability due to his service-connected disorders are therefore not credible. 

The Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As to some of the factors that go into making these determinations both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").

The medical records cited are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the Veteran's own contradictory statements regarding his ability to work, taken along with the contradictory statements from two different former supervisors and the findings of the VA examiners diminishes the reliability of his lay contentions asserting that he is unemployable due to his service-connected lumbar spine and right knee disabilities and they are afforded no probative value.

Therefore, a TDIU is not warranted in this case.


ORDER

A disability rating in excess of 20 percent for herniated nucleus pulposus is denied. 

A disability rating in excess of 10 percent for anterior cruciate ligament tear of the right knee is denied. 

A TDIU is denied. 





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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs