Citation Nr: 1331992 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-00 336A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a left knee injury, to include arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July and November 2006 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2010, the Veteran testified before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been associated with the claims folder. The Board notes that the procedural history of this case is a lengthy one, involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Appeals (Court). The case was most recently before the Board in November 2012 at which time it was remanded for further development, after which the matters were readjudicated in a March 2013 supplemental statement of the case and returned to the Board the following month. The decision below addresses the Veteran's claim for an increased rating for his service-connected residuals of a left knee injury, to include arthritis. The issue of entitlement to service connection for a low back disability is addressed in the remand portion of the decision below. FINDINGS OF FACT 1. Before October 18, 2012, the Veteran's service-connected residuals of a left knee injury included arthritis, subjective complaints of pain, and functional limitations; however, pain did not limit flexion to 60 degrees or extension to 5 degrees; objective findings of instability and/or subluxation of the left knee have not been shown. 2. From October 18, 2012, the Veteran's service-connected residuals of a left knee injury have included arthritis, objectively painful motion, decreased range of motion, and disturbance of locomotion, requiring regular use of a wheelchair, which functional limitations equate to extension to 20 degrees; objective findings of instability and/or subluxation and limitation of flexion to 60 degrees of the left knee have not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to October 18, 2008, for residuals of a left knee injury, to include arthritis, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2013). 2. The criteria for a 30 percent disability rating for residuals of a left knee injury, to include arthritis, have been met as of October 18, 2008. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) The VCAA notice requirements apply to all five elements of a service connection claim. These are (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). As previously determined by the Board in a June 2010 decision, VA has complied with its duty to notify by way of letters dated in March 2006, December 2008, and February 2009. The Board points out that the June 2010 decision was appealed to the Court and that the parties filed a Joint Motion for Remand (JMR), which was granted by the Court April 2011. Notably, the parties' JMR included no reference to the Board's finding that VA had complied with its duty to notify, nor does the Court's order indicate vacatur of that portion of the Board's decision that found such compliance. The Veteran has also not disputed the contents of the VCAA notice in this case. Upon review of the record, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied and that the Veteran had a meaningful opportunity to participate in the development of his increased rating claims. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his increased rating claim. The evidence includes his VA treatment records, to include those dated since August 2010 as required by the Board's November 2012 remand, private medical evidence, records from the Social Security Administration (SSA), VA examination reports, and lay statements in support of his claims, to include his March 2010 hearing testimony. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Further, the Veteran was afforded VA examinations of his left knee in October 2006 and October 2008. Again, the Board points out that it was previously determined by the Board in June 2010 that the VA examinations were adequate. In seeking a JMR from the Court, neither party raised any issue with regard to the adequacy of the examinations afforded to the Veteran; nor did the JMR suggest that a new VA examination was warranted. Also, the Court's order granting the parties' JMR in no way indicates vacatur of that portion of the Board's decision that found compliance with VA's duty to provide the Veteran with an adequate medical examination. Rather, the basis for the JMR was the Board's failure to discuss certain findings made by the October 2008 VA examiner. A review of the record also shows that in February 2012, the Veteran was afforded a VA examination, which included a full examination of the Veteran's left knee, to include range-of-motion and joint stability testing. The examiner also documented the Veteran's current symptomatology and discussed the functional and occupational impact of his left knee disability. The Board is satisfied that the examination report contains sufficient evidence by which to evaluate the Veteran's service-connected left knee disability in the context of the rating criteria and during the relevant time period. Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). II. Analysis The Veteran is currently in receipt of a 10 percent disability rating for his service-connected left knee disability. He asserts a higher rating is warranted. At the outset, the Board finds it necessary to engage is a discussion of the specific nature of the Veteran's service-connected left knee disability, to include the diagnostic code(s) under which it has been rated. This is so because the evidence shows that, except for several periods of time during which he was in receipt of a temporary total rating under the provisions of 38 C.F.R. § 4.30, the Veteran has been in receipt of a 10 percent disability rating for his left knee disability since May 1, 1986, which rating has become protected. See 38 C.F.R. § 3.951(b) (2012) ("A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."). Notably, in Murray v. Shinseki, 24 Vet. App. 420 (2007), the Court stated that after a rating for a particular disability has become protected, VA is required to discuss 38 C.F.R. § 3.951(b) in any subsequent adjudication involving that disability, regardless of the extent of protection afforded by that regulation. Id. at 424. In Murray, the Veteran had been service connected for residuals of a left knee injury, evaluated as 10 percent disabling for more than 20 years under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. Thereafter, the Veteran claimed service connection for left knee arthritis and the RO subsequently reclassified his disability as residuals of a left knee injury with arthritis and assigned a 10 percent rating under 38 C.F.R. § 4.71a, DCs 5260 and 5261, pertaining to limitation of flexion and extension. The RO stated that to award separate ratings for arthritis and residuals of a left knee injury would violate 38 C.F.R. § 4.14's prohibition against pyramiding. In reviewing the propriety of what in essence was the Board's affirmance of the RO's action, the Court reversed the Board's finding that the Veteran's 10 percent disability rating under DCs 5260 and 5261 " was 'most appropriate' . . . '[c]onsidering the rating criteria in relation to the relevant evidence of record.'" In so reversing, the Court concluded that the Veteran's protected disability rating had effectively been reduced to zero percent and that he had been assigned a new, separate 10 percent disability rating. Id. The Court found that the reduction from 10 to 0 percent under DC 5257 "violated the provisions of 38 C.F.R. § 3.951(b) that prohibit the reduction of a disability evaluation that has been continuous for 20 or more years." Id. Of particular import to the current case, Court pointed out that in considering the extent of the protection afforded under § 3.951, the question to be answered in Murray was "what were the residuals of the left knee condition for which [the Veteran] was awarded 10 [percent] for those 20 years?". Id. at 425. In that regard, the Court noted that the only residual found to have existed at the time of the initial rating was mild laxity of the left knee. Although it was later determined that the Veteran no longer suffered from left knee laxity, his 10 percent rating under DC 5257 was continued without change in disability, which rating became protected 20 years from the effective date of such rating. Also relevant to the current appeal is a precedential opinion issued by VA's General Counsel that provides guidance concerning rating claims for knee disorders. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 23-97, VA's General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 (and, by extension 5010) and 5257, provided that a separate rating must be based upon additional disability. Accordingly, because separate ratings are available under DCs 5003 and 5257 and because, as discussed below, the Veteran's left knee disability has been rated as 10 percent disabling for more than 20 years and has variously been rated under DCs 5010, 5257, and 5260, the Board must determine the nature of the Veteran's protected rating as part of its determination of the appropriate rating(s) for that disability. Here, the Veteran was initially awarded service connection for a "left knee injury, post operative" in October 1985. At that time, he was assigned a noncompensable rating under DC 5257. It was noted that that the Veteran had injured his left knee playing football in 1983, underwent a left knee arthroscopy with patella shaving in June 1984, and was seen for complaints of left knee pain in March 1985. At that time, the Veteran had a full range of motion and there was no evidence of laxity. There is no indication why the RO chose DC 5257 as the most appropriate DC when there was no evidence of subluxation or instability. The Board notes, however, that the use of DC 5257 as a "catch-all" provision for rating knee disabilities that were not otherwise provided for in the rating schedule was a common practice in the past. Indeed, by its own terms, DC 5257 pertains to "other impairment of" the knee and the rating under that DC is based on the level of severity of recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. By a March 1987 rating decision, the Veteran was awarded a temporary total rating for convalescence following a February 1986 injury of the left knee. A 10 percent rating was assigned from May 1, 1986, under DC 5257. Notably, the rating decision indicated that results of a recent VA examination failed to reveal evidence of instability. The Veteran disagreed with the 10 percent rating and appealed to the Board. In a June 1989 decision, the Board denied a rating greater than 10 percent for the Veteran's left knee disability, characterized as "residuals of a left knee injury." The Board noted that the evidence of record failed to demonstrate instability or subluxation, but did show some limitation of motion and pain on movement. The Board specifically found that the Veteran's residuals of a knee injury were then currently manifested by pain on motion without a showing of significant instability or decreased range of motion. A rating greater than 10 percent was denied. Although the Board did not state specifically that the Veteran's disability was more appropriately rated under a DC other than 5257, as ratings under that DC are based on instability or subluxation of the knee, evidence of which was lacking, in a November 1989 rating decision, the RO awarded a temporary total rating for convalescence following a left knee arthroscopy and a 10 percent rating thereafter. The rating decision indicated that the Veteran's residuals of his left knee injury were then being rating under DC 5260, which pertains to limitation of flexion. Although it does not appear that the Veteran indeed was then experiencing flexion limited to a compensable degree, it is clear that the RO no longer intended for the Veteran to be rated under DC 5257 because the evidence failed to support a rating under that DC. Subsequent evaluations failed to reveal evidence of instability or subluxation, but eventually arthritis was diagnosed and in a September 2001 rating decision, the RO recharacterized the Veteran's disability as "left knee injury, postoperative [times] three with traumatic arthritis" and continued his 10 percent disability under hyphenated DC 5010-5260. The issue of entitlement to a rating greater than 10 percent was again before the Board in March 2006. In denying a rating greater than 10 percent, the Board stated specifically that a disability rating under DC 5257 was not for application as the multiple findings by orthopedists were negative for ligamentous instability. The Board also noted that the Veteran's 10 percent rating was based on limitation of function and motion due to pain. Despite both the Board's finding that DC 5257 was not for application and the previous recharacterization of the Veteran's disability and change in DC, RO decisions dated thereafter indicate that the Veteran's left knee disability has been rated as 10 percent disabling under hyphenated DC 5010-5257 since August 1989, except for several periods of time during which the Veteran was in receipt of a temporary total rating under the provisions of 38 C.F.R. § 4.30. In the instant case, the Board finds that although the Veteran was initially rated under DC 5257, and regardless of the fact that the RO has continued to list DC 5257 as a relevant DC, it was clearly determined, prior to the point at which a rating under DC 5257 would have become protected, that that DC was not for application in rating the Veteran's residuals of his left knee injury. Indeed, in its June 1989 decision, the Board discussed the fact that evidence of instability or subluxation was lacking and subsequent action by the RO indicated that the Veteran's left knee disability was being rated under DC 5260. The Veteran's left knee disability was then rated under that DC until 2001, at which point the DC was changed to hyphenated DC 5010-5260, to reflect the presence of arthritis. The Board again noted in its 2006 decision that DC 5257 was not for application and stated specifically that the Veteran's 10 percent rating was for limitation of motion and function due to pain. Thus, the instant case is distinguishable from Murray because a change in DCs was made when it became evident that the residuals of the left knee injury did not include subluxation or instability. Notably, as the Court pointed on in Murray, where a rating for a particular disability has been in effect for less than 20 years, it is permissible for the RO to switch DCs to more accurately reflect that nature of the disability. 24 Vet. App. at 425. This is precisely what was done in this case. Although more recent RO decisions appear to indicate that the Veteran's left knee has been rated under DC 5257 since 1989, this is simply not the case as outlined above and the recordation of DC 5257 on the Veteran's code sheets as being the DC under which his left knee disability is rated is simply error by the RO. Accordingly, under the facts of this case, the Board finds that the Veteran is not in receipt of a protected disability rating under DC 5257. Turning to the issue of the appropriate disability rating for the Veteran's service-connected residuals of a left knee injury, the Board notes that disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2013). Evidence relevant to the issue presently before the Board shows that the Veteran was afforded VA medical examination in October 2006, during which he reported having undergone four arthroscopic surgeries of the left knee since service and stated that he currently used a cane and a knee brace to aid his mobility. He reported difficulty using stairs, climbing in and out of the bathtub, and staying on his feet for any considerable amount of time. He indicated knee pain, somewhat relieved by rest, but denied any overt flare-ups or incapacitating episodes. Range of motion testing revealed extension to 0 degrees and flexion to 90 degrees, with no evidence of painful motion. Repetitive motion did not result in any additional limitation of motion. The left knee was stable to medial and lateral collateral testing. Varus and valgus stress testing indicated 1+ laxity in the lateral collateral ligament, but was otherwise within normal limits. Anterior cruciate ligament and posterior cruciate ligament testing were negative, as were anterior and posterior drawer tests, Lachman and McMurray tests. X-rays of the left knee demonstrated tricompartmental osteoarthritis. The report of a June 2007 periodic evaluation following arthroscopic surgery in May 2007 showed that the Veteran's left knee displayed a well-healed surgical scar. Range of motion testing revealed extension to 0 degrees and flexion to 120 degrees, with crepitus. The left knee was ligamentously stable and a Lachman test was negative. The Veteran was afforded another VA examination in October 2008, during which he reported left knee pain, especially with use, and the occasional use of a wheelchair and bilateral knee braces. The Veteran stated that he could not stand or walk for more than 15 minutes without having significant pain, but denied any specific flare-ups. Physical examination of the knee revealed tenderness along the lateral joint line, but no warmth or erythema. Range of motion testing revealed extension to 0 degrees and flexion to 100 degrees, with significant pain reported throughout the entire arc of motion. Crepitus was also observed. Range of motion and pain remained the same with repetitive motion. The left knee was stable to varus and valgus stress, and anterior and posterior drawer tests, and Lachman and McMurray tests were all negative. The examiner found no evidence of lateral instability. Strength was 5/5 in the left knee. X-rays of the left knee revealed moderate to severe degenerative joint disease. The Veteran indicated that he was then employed as a caterer and stated that his disability affected his occupational functioning in that he could not stand for prolonged periods of time. The examiner found that it would be difficult for the Veteran to perform light or heavy duty on account of his knee disability, but that he would be able to perform sedentary work. The examiner further stated that prolonged walking and standing would produce pain that would likely aggravate the Veteran's condition and that it was conceivable that pain could further limit function as described, particularly after being on his feet all day. The examiner indicated, however, that it was not feasible to attempt to express the degree to which the Veteran would be additionally limited with any amount of medical certainty. The Veteran was afforded a VA examination in connection with his claim for an increased rating for his service-connected right knee disability in June 2010. The examination report recorded the Veteran's left knee range of motion to be from 0 to 95 degrees, with evidence of pain. After repetitive testing, the Veteran was able to achieve flexion to 110 degrees. Another VA examination was conducted in February 2012. The Veteran reported flare-ups and described the impact of those flare-ups as difficulty standing or walking for long distances. Range of motion testing revealed left knee flexion to 120 degrees, with pain beginning at 100 degrees. The Veteran could extend his left knee only to 5 degrees, with pain beginning at 20 degrees. Repetitive motion testing produced no additional limitation of motion. The examiner indicated that the Veteran experienced functional loss/functional impairment in that he had less movement than normal and pain on movement. There was also evidence of tenderness or pain to palpation. Muscle strength testing was normal. Lachman, posterior drawer, and valgus and varus tests were all normal, indicating no anterior, posterior, or medial-lateral instability of the left knee, but regular use of a wheelchair and a knee brace was noted. The Veteran's history of having undergone several menisectomies was noted and the examiner indicated frequent episodes of joint pain. There was no evidence of shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment. The examiner considered the occupational impact of the Veteran's left knee disability and determined that the left knee disability would make it difficult for him to stand and walk for long distances. The Veteran has also received regular VA medical treatment during the pendency of this appeal. He has consistently reported pain, weakness, and stiffness of the left knee joint. Further, during his March 2010 hearing, the Veteran indicated that he was unable to walk around the block or walk uphill, that his knee has gone out in the past, that he used a wheelchair on account of his back and knee disabilities, and that he had a limited range of left knee motion. As noted above, the Veteran is in receipt of a 10 percent rating for residuals of a left knee injury with traumatic arthritis, which has variously been rated under DC 5260 and 5010-5260. Pursuant to DC 5010, arthritis due to trauma substantiated by x-ray findings is to be rated as degenerative arthritis. Pursuant to DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate diagnostic codes, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. See 38 C.F.R. § 4.71a, DC 5003; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating even though there is no actual limitation). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, DC 5003. Limitation of knee motion is rated under DC 5260, pertaining to flexion, and DC 5261, pertaining to extension. Under DC 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is for consideration when flexion is limited to 30 degrees. A 30 percent rating is applicable where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted where extension is limited to 5 degrees. A 10 percent rating is assigned when extension of the knee is limited to 10 degrees. A 20 percent rating is applicable when extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. Finally, a 40 percent rating is assigned when extension is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5261. The Board notes that, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. Upon review of the evidence, the Board finds that the Veteran's left knee disability has increased in severity during the appeal period, such that staged ratings are appropriate in this case. Specifically, the Board finds that, when reasonable doubt is resolved in the Veteran's favor, a rating of 30 percent is warranted as of October 18, 2008. Prior to that time, however, the evidence fails to establish entitlement to a rating in excess of 10 percent. At the outset, the Board finds that the February 2012 VA examination supports a rating of 30 percent under DC 5261 based on the Veteran's limitation of extension. Although the Veteran was able to achieve extension to 5 degrees, which demonstrates only a noncompensable limitation of extension, the examiner indicated the onset of pain to be at 20 degrees. It was also noted that the Veteran had difficulty walking or standing for prolonged periods, had frequent episodes of joint pain, and required regular use of a wheelchair. Overall, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, this evidence weighs in favor of a 30 percent evaluation with consideration of the DeLuca factors. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5261. The Board notes, however, that the Veteran had flexion to 120 degrees with pain beginning at 100 degrees. Thus, a separate 10 percent rating for loss of flexion is not warranted The Board also finds that the evidence supports the assignment of a 30 percent rating as of the October 2008 VA examination. This is so because although the Veteran did not demonstrate limitation of extension or flexion to even a noncompensable degree at that time, significant pain was noted throughout the entire arc of motion, occasional use of a wheelchair was indicated, and the Veteran stated that he could not stand or walk for more than 15 minutes without having significant pain. Notably, the October 2008 VA examiner stated his belief that prolonged walking and standing would produce pain that would likely aggravate the Veteran's condition and that it was conceivable that pain could further limit function as described. Although the examiner was unable to express the degree to which the Veteran would be additionally limited with any amount of medical certainty, given the similarity of findings with regard to the Veteran's level of pain and difficulty with prolonged standing and walking, to include use of a wheelchair, the Board finds that it is at least as likely as not that the Veteran's service connected left knee disability satisfied the criteria for a 30 percent evaluation with consideration of the DeLuca factors from October 18, 2008. A rating, however, greater than 30 percent under DC 5261 is not warranted as the evidence fails to reveal functional limitations tantamount to extension limited to 30 degrees. Indeed, even with pain, the Veteran was able to achieve extension to 5 degrees and has mobility, even if limited. Prior to October 18, 2008, the Board finds that the Veteran's 10 percent rating adequately compensated him for the severity of his left knee symptomatology. Notably, the Veteran was able to achieve flexion to 90 degrees in October 2006 and to 120 degrees in June 2007, without evidence of pain. The Veteran was also able to achieve full extension. Based on these findings, the Veteran did not have motion limited to a compensable degree. See 38 C.F.R. § 4.71a, DCs 5260, 5261. Accordingly, a rating greater than 10 percent is not warranted prior to October 18, 2008, under DC 5260 or 5261 based on actual limitation of flexion or extension because the Veteran had a range of motion beyond that which would be considered even noncompensable. As to the Veteran's subjective complaints of pain prior to October 18, 2008, the Board finds that any painful motion is accounted for by the Veteran's10 percent disability evaluation. See Lichtenfels v. Derwinski, 1 Vet. App. at 488. Indeed, it appears that the Veteran's disability in this regard was rated on the basis of painful motion, as the medical evidence of record demonstrated that the Veteran did not experience an objective limitation of motion. Further, as noted on examination in October 2006, there was no objective evidence of painful motion or additional limitation of motion upon repetitive testing. The Veteran had subjective complaints of pain, difficulty using stairs, and reportedly had difficulty "staying on his feet for a considerable period of time." Use of a wheelchair was not indicated, flare-ups were denied, and there was no evidence of incapacitating episodes. Additionally, the examiner stated that pain, fatigue, weakness, lack of endurance, and incoordination did not further limit the Veteran's functional abilities. Given this evidence, the Board finds no basis upon which to award a disability rating in excess of 10 percent prior to October 18, 2008. In this regard, the Board notes that pain itself does not constitute functional loss and "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' 38 C.F.R. § 4.40, in order to constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Thus, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. Given the Veteran's ability to achieve flexion to at least 90 degrees and extension to 0 degrees, the absence of flare-ups or use of a wheelchair, and difficulty standing or walking only after a "considerable" amount of time, the evidence fails to demonstrate that prior to October 18, 2008, the Veteran's symptomatology, to include any pain, resulted in a functional loss equivalent to that which would warrant a rating greater than the assigned 10 percent, even taking into account the DeLuca factors. The Board has also considered whether the Veteran may entitled to a rating greater than 10 percent prior to October 18, 2008, or greater than 30 percent thereafter, under the following DCs applicable to disabilities of the knee: (1) DC 5256 which pertains to disabilities involving ankylosis of the knee; (2) DC 5257 which provides for disability ratings based on recurrent subluxation or lateral instability; (3) DC 5258 which provides for a 20 percent evaluation for dislocated semilunar cartilage "with frequent episodes of 'locking,' pain, and effusion into the joint"; and (4) DC 5262 which is used to evaluate impairments of the tibia and fibula. 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5262 (2012). There is no evidence of ankylosis of the left knee joint or any impairment of the tibia or fibula to allow for application of DCs 5256 or 5262. Further, the evidence of record does not demonstrate any complaints of dislocated cartilage. Accordingly, the Board finds that the evidence does not support a rating under DC 5258. The evidence also fails to demonstrate recurrent subluxation or lateral instability during the relevant time periods so as to warrant a separate or higher rating under DC 5257. See VAOPGCPREC 23-97 (allowing for separate ratings for arthritis and instability of the knee under DCs 5003 and 5257). The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the residual symptoms of the Veteran's left knee injury are not so exceptional or unusual such that the schedular criteria do not adequately compensate for them. Here, the Veteran's main symptoms have been pain, decreased motion, and limitation of walking and standing. The Board does not find that the Veteran's symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321(b)(1) (2012). Indeed, the rating schedule and the DeLuca factors compensate for pain, limited motion, and disturbance of locomotion. Although limitation of activities such as walking/standing and use of a brace and/or wheelchair are not specifically noted in the rating schedule, it is clear the Veteran's activities are limited due to his knee pain and decreased motion and that those assistive devices are used to alleviate the Veteran's symptoms, which are accounted for by the rating schedule and applicable regulations. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when that issue is raised by the record. A review of the evidence relevant to the current appeal contains no indication that the Veteran is unemployable solely on account of his left knee symptomatology, such that the issue of entitlement to TDIU has been raised by the record in connection with the Veteran's claim for an increased evaluation of his service-connected left knee disability. While his left knee disability may impact his ability to function occupationally on account of the fact that his walking and standing is limited, there is no indication in the record that he is unable obtain and maintain substantially gainful employment due to his left knee disability. Although the October 2008 VA examiner found that it would be difficult for the Veteran to perform light or heavy duty on account of his left knee disability, the examiner specifically determined that he would be able to perform sedentary work. As such, the Board finds that the issue of entitlement to TDIU has not been raised by the evidence of record as part of the Veteran's increased rating claim. See Rice, supra; see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits."). ORDER Entitlement to an evaluation in excess of 10 percent for service-connected left knee disability prior to October 18, 2008, is denied. Entitlement to a disability rating of 30 percent, but no higher, for service-connected left knee disability is granted as of October 18, 2008. REMAND The issue of entitlement to service connection for a low back disability was previously remanded for the Veteran to be afforded a VA examination for the purpose of determining whether it was at least as likely as not (1) that any current low back disorder was incurred during military service, to include as a result of an in-service low back injury, or (2) that any current low back disorder was caused or worsened by Veteran's service-connected bilateral knee disabilities. The Veteran was afforded a VA examination in July 2010. The examiner noted that the Veteran had sustained a lumbar spine strain in service and was later determined to have spondylolisthesis of the lumbar spine with disc herniation. Upon review of the record and examination of the Veteran, the examiner stated that the Veteran's in-service lumbar strain could be a contributing factor to his degenerative disc disease, but that he did not believe that the lumbar strain would cause spondylolisthesis requiring fusion. The examiner indicated, however, that he "c[ould ]not determine this without mere speculation." The examiner further opined that it was "unlikely that the [Veteran's] bilateral knee disorders contribute to his lumbar spine condition currently." Another opinion was obtained in February 2012, which was intended to provide a rationale for the earlier opinion. In this regard, the clinician stated that he was unaware of any medical literature that would support knee arthritis causing of attributing to lumbar spine strain. Upon review of these opinions, the Board finds that they are not adequate for evaluation purposes as they lack a supporting rationale, do not fully address the Veteran's claimed theories of entitlement, and are too speculative to rely upon in this case. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that if an examiner concludes that a nonspeculative opinion cannot be offered, he or she must explain the basis for such a conclusion or the basis must otherwise be apparent from the evidence); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (discussing adequacy of medical opinions and stating that to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves causation and/or aggravation); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding, in essence, that the use of equivocal language renders medical evidence too speculative to rely opinion). Accordingly, the matter must be remanded for further development in accordance with the directives set forth below. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran a VA examination in connection with his claim of service connection for a low back disability. The claims folder must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests and studies should be conducted and the examiner should review the results of any testing and include them in the report. The examiner should identify all currently diagnosed disabilities related to the lumbar spine and take a detailed history from the Veteran regarding the onset and continuity of symptoms related to his claimed low back disability. Then, after reviewing the claims folder and examining the Veteran, the examiner should provide opinions as to the following questions: a) Is it at least as likely as not that any currently diagnosed disability related to the lumbosacral spine is directly related to the Veteran's period of military service? If the examiner finds that the Veteran's noted in-service lumbar strain is unrelated to any currently diagnosed disability, the examiner should provide specific reasons for any such finding. b) Is it is at least as likely as not the Veteran's service-connected disabilities of the knees has caused or made chronically worse any currently diagnosed disability of the lumbosacral spine? The examiner's opinions should be based upon both physical examination and consideration of the Veteran's documented history and assertions through review of the claims file. Regardless of whether the examiner's opinion is favorable or negative, the examiner must provide support for his/her opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. If the reviewer determines that he/she cannot provide an opinion on the issue without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to service connection for a low back disability. If a benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs