Citation Nr: 1332880 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-20 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability evaluation (rating) in excess of 10 percent for lumbar back strain. 2. Entitlement to a compensable disability rating for right knee chondromalacia from February 9, 1999 to February 17, 2007, and in excess of 10 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 23, 2000. 4. Entitlement to a TDIU due to service-connected disabilities from October 23, 2000. REPRESENTATION Appellant represented by: Daniel G. Krasnegor (Attorney) ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from May 1990 to October 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from two June 2008 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a June 2008 statement of the case (SOC) the RO denied an initial rating in excess of 10 percent for lumbar back strain and denied a compensable disability rating for right knee chondromalacia from February 9, 1999 to February 16, 2007, and in excess of 10 percent thereafter. In a separate June 2008 rating decision, the RO denied a TDIU. In a subsequent April 2010 rating decision, the RO granted a 10 percent evaluation for the Veteran's right knee disability, effective February 17, 2007, the date of the VA knee examination. Although the RO granted a higher 10 percent disability rating, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). Subsequent to the issuance of the Statement of the Case, the Veteran's representative submitted additional statements in April 2013 regarding the issue of entitlement to TDIU, for which a waiver of initial RO consideration was not provided. That notwithstanding, as the Board is granting a TDIU beginning October 23, 2000 and remanding the issue of a TDIU for the period prior to October 23, 2000, a waiver of review by the AOJ is not necessary. 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In this matter, the Board finds that a TDIU is warranted from October 23, 2000; however, the Board finds further inquiry is warranted into whether a TDIU would be appropriate prior to October 23, 2000. As such, this issue (entitlement to a TDIU prior to October 23, 2000) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's lumbar back strain more nearly approximated "moderate" limitation of motion of the lumbar spine. 2. For the initial rating period prior to February 17, 2007, the Veteran's right knee patellar chondromalacia has been manifested by painful motion. 3. For the initial rating period beginning February 17, 2007, the Veteran's right knee patellar chondromalacia has been manifested by flexion exceeding 30 degrees and extension to five degrees with no lateral instability. 4. Beginning October 23, 2000, the Veteran was rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire initial rating period, the criteria for an initial 20 percent disability evaluation, but no higher, for lumbar back strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Codes 5295 (as in effect prior to September 23, 2002); Diagnostic Code 5295 (as in effect from September 23, 2002 through September 25, 2003), Diagnostic Code 5237 (as in effect from September 26, 2003). 2. For the initial rating period prior to February 17, 2007, the criteria for a disability rating of 10 percent, but no higher, for right knee patellar chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5260, 5261, 5262, 5263 (2012). 3. For the initial rating period beginning February 17, 2007, the criteria for a rating in excess of 10 percent, for right knee patellar chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5260, 5261, 5262, 5263 (2012). 4. The criteria for a TDIU have been met beginning October 23, 2000. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The claims on appeal arise from the Veteran's disagreement with the initial evaluations assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Veteran's service treatment records, VA treatment records, Social Security Administration disability records, post-service medical records, and the Veteran's statements have been associated with the claims file. Further, the Board notes that the Veteran was afforded VA examinations in December 2000, February 2003, February 2007, and May 2009, to address the severity of his disabilities. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the February 2007 and May 2009 VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; fully addresses the relevant rating criteria; and contain a discussion of the effects of the Veteran's disabilities on his occupational and daily activities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). General Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2012). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3 (2012). The Veteran is contesting the disability evaluations that were assigned following the grant of service connection for his disabilities. This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-27. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. See Fenderson, at 126-27. Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Rating for Lumbar Strain Disability The Veteran contends that his low back disability is more severe than reflected by its current 10 percent evaluation. The Veteran filed his claim for service connection for a back disability in February 1999. During the course of this appeal, VA promulgated new regulations for the evaluation of disabilities of the spine twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002), 68 Fed. Reg. 51,454 (Aug. 27, 2003)(codified at 38 C.F.R. part 4). The amendments renumber the Diagnostic Codes and create a General Rating Formula for Diseases and Injuries of the Spine. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Because the amendments discussed above have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the veteran. The RO addressed the previous criteria and the amended criteria in the August 2007 rating decision. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran. Bernard v. Brown, 4. Vet. App. 384, 392-94 (1993). As noted above, the amendments renumber the Diagnostic Codes and create a General Rating Formula for Diseases and Injuries of the Spine, based largely on limitation or loss of motion, as well as other symptoms. The amendments also allow for intervertebral disc syndrome (IVDS), Diagnostic Code 5243, to be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Prior to September 23, 2002, under Diagnostic Code 5293, moderate IVDS with recurring attacks warrants a 20 percent evaluation. Severe IVDS with recurring attacks and intermittent relief warranted a 40 percent evaluation. The regulations regarding IVDS were revised effective September 23, 2002. Under the revised regulations, IVDS (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under these revised standards, IVDS warrants a 20 percent evaluation is warranted when the veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. These criteria are the same in the amendment effective September 26, 2003. For purposes of assigning evaluations under Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2007). In the present case, the Board finds that there is no evidence of record indicating the Veteran has ever had IVDS or any incapacitating episode due to his low back disability. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply. Next, prior to September 23, 2002, slight limitation of motion of the lumbar spine warranted a 10 percent evaluation. Moderate limitation of motion of the lumbar spine warranted a 20 percent evaluation. A 40 percent evaluation was warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The regulation revisions effective September 23, 2002 did not change the criteria for Diagnostic Code 5292 (limitation of motion of the lumbar spine). Prior to September 23, 2002, lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position warranted a 20 percent evaluation. A 40 percent evaluation was warranted for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The regulation revisions effective September 23, 2002 did not change the criteria for Diagnostic Code 5295. Effective September 26, 2003, the regulations regarding diseases and injuries of the spine were again revised. Under these regulations, spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. These criteria apply 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. The Veteran's back disability is currently evaluated under Diagnostic Code 5237 (lumbosacral strain). Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating (20 percent evaluation) is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. Normal ranges of motion of the thoracolumbar spine are as follows: flexion to 90 degrees, extension to 30 degrees, lateral flexion from 0 to 30 degrees bilaterally, and lateral rotation from 0 to 30 degrees bilaterally. 38 C.F.R. § 4.71a, Plate V (2012). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Rating for Lumbar Strain In a December 2000 VA examination for fibromyalgia, the Veteran reported a history of low back pain. Upon physical examination, the VA examiner noted that the lumbar spine had normal lordosis, the sacroiliac joint revealed tenderness on palpation, and forward flexion was limited due to pain to 40 degrees. Extension was to 5 degrees. No significant radiculopathy was noted at the December 2000 VA examination. A February 2003 VA orthopedic examination noted chronic back pain with history of an old injury in service. However, range of motion testing or a physical examination of the Veteran's lumbar spine was not conducted; therefore, the February 2003 VA examination report is of little probative value. The Veteran was afforded a VA orthopedic examination on February 17, 2007. During the interview, the Veteran reported chronic low back pain. The Veteran denied flare-ups and stated that he had chronic aching low back pain, which he reported was about 4 out of 10 on a pain scale. The Veteran further reported that sitting for prolonged periods of time make the aching in his low back more prominent. He also reported that he has to stand up multiple times in school while sitting secondary to his chronic low back pain. Physical examination of the lumbar spine during the February 2007 VA examination revealed tenderness to palpation in the left and right paraspinal musculature around L3 to L4. Range of motion was recorded as 0 to 110 degrees with pain between 90 and 110 degrees of forward flexion. Back extension was from 0 to 20 degrees with pain between 15 and 20 degrees. Lateral rotation to the right was 0 to 45 degrees with pain between 30 degrees and 45 degrees. Lateral flexion to the right was 0 degrees to 30 degrees with pain between 20 and 30 degrees. Lateral rotation to the left was from 0 degrees to 45 degrees with pain between 30 degrees and 45 degrees. Lateral flexion to the left was 0 degrees to 30 degrees with pain between 20 degrees and 30 degrees. No decrease range of motion with repetitive testing was noted. There was no radiation of pain, no difficulty with ambulation, and no incapacitating events requiring bed rest in the past 12 months. The examiner further stated that it was conceivable that pain could further limit function, particularly with repetitive use; however, the VA examiner was unable to express additional limitation of motion with any degree of medical certainty. In a following May 2009 VA examination, the Veteran reported daily back pain and radiating pain down the posterior of both legs. He also reported flare-ups about twice a week which took pain from 8 out of 10 on the pain scale to a 10 out of 10. Examination of the lumbar spine during the May 2009 VA examination revealed tenderness to palpation along the lower lumbar region. Range of motion testing revealed forward flexion from as 0 to 90 degrees with pain between 70 and 90 degrees. Back extension was from 0 to 30 degrees with pain between 20 and 30 degrees. Lateral rotation to the right was 0 to 60 degrees with pain between 50 degrees and 60 degrees. Lateral flexion to the right was 0 degrees to 45 degrees with pain between 20 and 45 degrees. Lateral rotation to the left was from 0 degrees to 60 degrees with pain between 50 degrees and 60 degrees. Lateral flexion to the left was 0 degrees to 30 degrees with pain between 20 degrees and 30 degrees. No increase in pain or decrease range of motion with repetitive testing was noted. Objective finding revealed no radiculopathy or myelopathy. Based on the evidence of record, the Board finds that, both under the old and new criteria, the Veteran's lumbar strain disability more nearly approximated a 20 percent disability rating. At worst, the Veteran's forward flexion was to 40 degrees in the December 2000 VA examination. The Board finds that this limitation of forward flexion more nearly approximates "moderate" limitation of motion of the lumbar spine under the old criteria under Diagnostic Code 5295 and meets the 20 percent rating criteria under the new criteria in Diagnostic Code 5237 (i.e., 20 percent contemplates thoracolumbar flexion greater than 30 degrees, but not greater than 60 degrees). For these reasons, the Board finds that a 20 percent rating for the Veteran' lumbar strain is warranted. Next, the Board further finds that a higher rating in excess of 20 percent is not warranted as the Veteran does not have severe limitation of motion of the lumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less. See 38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2012). Considering functional loss, the evidence does not demonstrate that the Veteran had additional limitation of motion resulting from any of the factors set forth in DeLuca. The Board acknowledges that the Veteran's range of motion testing was often accompanied by pain; however, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his low back disability do not equate to more than the disability picture contemplated by the 20 percent rating already assigned. 38 C.F.R. § 4.71a. For these reasons, the Board finds that a 20 percent rating is warranted for service-connected lumbar strain for the entire rating period. Right Knee Rating Prior to February 17, 2007 The Veteran was granted service connection for patellar chondromalacia of the right knee and assigned a noncompensable rating in an August 2007 rating decision. In a subsequent April 2010 rating decision, the Veteran's right knee disability rating was increased to 10 percent, effective February 17, 2007. The Board will therefore first consider whether a compensable rating is warranted prior to February 17, 2007. The Veteran's patella chondromalacia of the right knee was rated under the provisions of 38 C.F.R. § 4.71a, under Diagnostic Codes 5002-5260. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). The Board notes that "chondromalacia patellae" is defined as pain and crepitus over the anterior aspect of the knee, particularly in flexion, with softening of the cartilage on the articular surface of the patella and, in later stages, effusion. See Dorland's Illustrated Medical Dictionary 358 (31st ed. 2007). The Board finds that the more appropriate rating for the Veteran's right knee chondromalacia is under Diagnostic Code 5003 which provides that degenerative arthritis will be rated based on limitation of motion of the affected joint or joints under the appropriate diagnostic code or codes. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. In the present case, the evidence prior to February 17, 2007 includes a December 2000 VA examination which revealed full flexion and extension of the right knee without synovitis. The VA examiner noted discomfort on palpation and pain the medial and lateral aspect of the right knee. In a February 2003 VA examination report, range of motion testing of the right knee revealed flexion to 145 degrees and extension was limited to 5 degrees. The VA examiner noted that the Veteran had pain on all range of motion testing. Tenderness to palpation was also noted. No ligamentous instability was present. In addressing the Deluca factors, the VA examiner noted that there was pain on range of motion resting of the right knee. The VA examiner further noted that the Veteran did have marked limited functional capacity, but it was impossible to say how much the Veteran was limited by his knee as he was severely ill secondary to the residuals of AIDS. The VA examiner noted that it was not feasible to attempt to express any additional limitation of motion as these matters simply could not be medically determined. Based on the above evidence regarding painful motion of the right knee, the Board finds that a 10 percent rating is warranted for the period prior to February 17, 2007. When limitation of motion is noncompensable under the appropriate code or codes, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is no limitation of motion, a 10 percent rating will be assigned where there is x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent rating will be assigned where there is such involvement along with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. The knee is considered a major joint for these purposes. See 38 C.F.R. § 4.45(f). Here, although the record does not demonstrate a diagnosis of arthritis of the right knee, there is evidence of limited motion and painful motion. See February 2003 VA examination report. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to a minimum compensable (10 percent) evaluation for painful motion. See also Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating (10 percent) must be based on demonstrated functional impairment. The Board finds that the criteria for a higher rating in excess of 10 percent are not met for the period prior to February 17, 2007 under Diagnostic Codes 5260 and 5261. That is, even with the consideration that painful motion limits motion at the point where the pain begins, VAOPGCPREC 9-98, the evidence has demonstrated flexion of the right knee that exceeds 30 degrees, so does not more nearly approximate the criteria for a 20 percent disability rating under Diagnostic Code 5260, and demonstrates extension of the right knee that is possible to five degrees, so does not more nearly approximate the criteria for a separate 20 percent rating for extension under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In any view of the matter, the results here exclude the possibility that the range of motion was ever limited-either by functional loss due to pain or structural limitation-to 30 degrees, as required for a higher disability rating of 20 percent under Diagnostic Code 5260. The Board acknowledges that the Veteran has right knee pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. That notwithstanding, a higher compensation is not warranted under these provisions because the persuasive and credible evidence of additional functional loss due to pain, weakness, fatigue, or incoordination does not show limited motion or function to such a degree so as to warrant a rating in excess of 20 percent for any period prior to February 17, 2007. The Board has also considered entitlement to a higher rating or a separate rating on the basis of lateral instability or recurrent subluxation. Under Diagnostic Code 5257, a 30 percent rating is available where such impairment is severe; a 20 percent rating is available where such impairment is moderate; and a 10 percent rating is available where such impairment is slight. Here, in the February 2003 VA examination, the examiner noted no instability after conducting a physical examination of the Veteran's right knee. For these reasons, the Board finds that a higher or separate rating under Diagnostic Code 5257 is not warranted. Although the record does not contain any evidence of right knee arthritis, the maximum disability rating for the right knee, a major joint, for painful arthritis productive of noncompensable limitation of motion of the knee, under Diagnostic Code 5003, is 10 percent. The provisions of Diagnostic Code 5003 specifically provide that higher ratings are to be based on limitation of motion caused by arthritis (including separate compensable ratings for both limitation of flexion and limitation of extension), to be rated under the specific Diagnostic Codes for limitation of motion of the knee. 38 C.F.R. § 4.71a. As the Veteran is already in receipt of a 10 percent rating, a higher or separate rating under Diagnostic Code 5003 is not possible. The Board has also considered whether any other diagnostic codes would be appropriate. Upon review of the evidence of record, the Board finds that there is no evidence of ankylosis and a rating under Diagnostic Code 5256 is therefore not appropriate. As there is no history of cartilage injury, dislocation, or removal, a rating under Diagnostic Codes 5258 and 5259 is also not warranted. Further, there is no evidence of nonunion or malunion of the tibia and fibula; as such, a rating under Diagnostic Code 5262 is not warranted. The record also does not demonstrate evidence or diagnosis of genu recurvatum; therefore, a rating under Diagnostic Code 5263 is not warranted. For these reasons, the Board finds that a 10 percent rating, but no higher, for the Veteran's right knee patellar chondromalacia is warranted for the period prior to February 17, 2007. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Right Knee Rating After February 17, 2007 As noted in the previous section, the Veteran was granted a 10 percent rating for right knee patellar chondromalacia in an April 2010, effective February 17, 2007. The Board will now consider whether a rating in excess of 10 percent is warranted for the period beginning February 17, 2007. The evidence of record includes a February 2007 VA examination report where the Veteran's right knee revealed positive tenderness to palpation along the medial and lateral patella facets and positive patella grind test. The McMurray test (used to evaluate individuals for tears in the meniscus of the knee) and the drawer test (used to detect rupture of the cruciate ligaments in the knee) were negative. Range of motion of the right knee showed 0 to 140 with pain between 130 and 140 degrees. In a subsequent May 2009 VA examination, the Veteran reported flare-ups about once a week, lasting 30 to 60 minutes. The Veteran further stated that he experiencing swelling and painful popping. Upon physical examination, the VA examiner noted tenderness to palpation around the medial and lateral patella. Range of motion testing showed 0 degrees of extension to 90 degrees of flexion with pain from 45 degrees to 90 degrees. Pain and range of motion remained the same on repetition. The Veteran's knee was stable to varus and valgus stress, there was no effusion, erythema, or warmth. The Lachman, McMurray, and anterior posterior drawer tests were negative. Based on review of the evidence from February 17, 2007 to the present, the Board finds that the criteria for a higher rating in excess of 10 percent are not met for the period beginning February 17, 2007 under Diagnostic Codes 5260 and 5261. That is, even with the consideration that painful motion limits motion at the point where the pain begins, the evidence has demonstrated flexion of the right knee that exceeds 30 degrees, so does not more nearly approximate the criteria for a 20 percent disability rating under Diagnostic Code 5260, and demonstrates extension of the right knee that is possible to five degrees, so does not more nearly approximate the criteria for a separate 20 percent rating for extension under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Further, as noted in the previous section, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell, 25 Vet. App. 32. Here, the results exclude the possibility that the range of motion was ever limited-either by functional loss due to pain or structural limitation-to 30 degrees, as required for a higher disability rating of 20 percent under Diagnostic Code 5260. The Board acknowledges that the Veteran has right knee pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. That notwithstanding, a higher compensation is not warranted under these provisions because the persuasive and credible evidence of additional functional loss due to pain, weakness, fatigue, or incoordination does not show limited motion or function to such a degree so as to warrant a rating in excess of 20 percent for any after prior February 17, 2007. The Board has also considered entitlement to a higher rating or a separate rating on the basis of lateral instability or recurrent subluxation. Here, in the February 2007 and May 2009 VA examiners both found no instability after conducting a physical examination of the Veteran's right knee. For these reasons, the Board finds that a higher or separate rating under Diagnostic Code 5257 is not warranted. As noted above, the record does not contain any evidence of right knee arthritis. Further, as the Veteran is already in receipt of a 10 percent rating, a higher or separate rating under Diagnostic Code 5003 is not possible. The Board has also considered whether any other diagnostic codes would be appropriate for the period after February 17, 2007. Upon review of the evidence of record, the Board finds that there is no evidence of ankylosis and a rating under Diagnostic Code 5256 is therefore not appropriate. As there is no history of cartilage injury, dislocation, or removal, a rating under Diagnostic Codes 5258 and 5259 is also not warranted. Further, there is no evidence of nonunion or malunion of the tibia and fibula; as such, a rating under Diagnostic Code 5262 is not warranted. The record also does not demonstrate evidence or diagnosis of genu recurvatum; therefore, a rating under Diagnostic Code 5263 is not warranted. For these reasons, the Board finds that a rating in excess of 10 percent rating for the Veteran's right knee patellar chondromalacia is not warranted for the period beginning February 17, 2007. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's disabilities are specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for each of the Veteran's disabilities specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. The schedular rating criteria for the Veteran's lumbar sprain and right knee disabilities specifically provide for ratings based on limitation of motion, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's service-connected lumbar spine disability is characterized, at worst, to forward flexion of the thoracolumbar spine of 40 degrees, with pain. The Veteran did not have incapacitating episodes due to degenerative disc disease of the lumbar spine, requiring bed rest prescribed by a physician and treatment by a physician. The Veteran's right knee disability has been manifested by flexion exceeding 30 degrees and extension to five degrees with no lateral instability. The schedular rating criteria specifically allows for different ratings based on the severity of the limitations of motion of the spine and knee. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU A total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran currently has seven service-connected disabilities. For the initial rating period from February 9, 1999 to October 22, 2000, the Veteran was service-connected for lumbar back strain, rated as 20 percent disabling and was rated as 10 percent disabling for right knee patellar chondromalacia (per this decision). The combined rating was 30 percent. As such, the Veteran had not met the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during that period. For the rating period from October 23, 2000 to October 6, 2008, the Veteran was service-connected with the following: fibromyalgia, rated as 40 percent disabling; posttraumatic stress disorder (PTSD), rated as 30 percent disabling; lumbar back strain, rated as 20 percent disabling; and right knee patellar chondromalacia, rated as 10 percent disabling. The Veteran met the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during this period as one of his disability was rated at 40 percent or more, and his combined rating was 70 percent. For the rating period from October 7, 2008 to August 23, 2010, the Veteran was service-connected with the following: PTSD, rated as 50 percent disabling; fibromyalgia, rated as 40 percent disabling; migraines, rated as 30 percent disabling; lumbar back strain, rated as 10 percent disabling; and right knee patellar chondromalacia, rated as 10 percent disabling. The Veteran met the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during this period as one of his disability was rated at 40 percent or more, and his combined rating was 80 percent. For the rating period from August 24, 2010 to December 7, 2010, the Veteran was service-connected with the following: PTSD, rated as 50 percent disabling; fibromyalgia, rated as 40 percent disabling; migraines, rated as 30 percent disabling; lumbar back strain, rated as 10 percent disabling; right knee patellar chondromalacia, rated as 10 percent disabling; and necrosis of the left hip, rated as 10 percent disabling. The Veteran met the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during this period as one of his disability was rated at 40 percent or more, and his combined rating was 90 percent. For the rating period from December 8, 2010 to the present, the Veteran is service-connected with the following: obstructive sleep apnea, rated as 50 percent disabling; PTSD, rated as 50 percent disabling; fibromyalgia, rated as 40 percent disabling; migraines, rated as 30 percent disabling; lumbar back strain, rated as 20 percent disabling (per this decision); right knee patellar chondromalacia, rated as 10 percent disabling; and necrosis of the left hip, rated as 10 percent disabling. The Veteran currently meets the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during this period as one of his disability is rated at 40 percent or more, and his combined rating was 90 percent. While the Veteran has been provided various VA examinations to consider his service-connected disabilities individually, there is no single VA medical opinion addressing the Veteran's TDIU claim in relation to all of the service-connected disabilities combined. That notwithstanding, the Veteran submitted an April 2013 private medical opinion from Dr. B.K., the Veteran's primary care physician. In the April 2013 medical opinion, Dr. B.K. noted that he had treated the Veteran on multiple occasions since October 2011 and was familiar with his multiple medical conditions. Dr. B.K. stated that he had reviewed the Veteran's medical records, including service treatment records, post-service treatment records, and VA examinations. It was noted that the Veteran suffered from multiple medical conditions, including: chronic low back pain, right knee pain, hip pain due to avascular necrosis, PTSD, anxiety and depression, headaches, and HIV. Dr. B.K. stated the following: "From my multiple interviews and examinations with [the Veteran], and my review of his medical history and records, I find it extremely unlikely that [the Veteran] would be able to work in any meaningful capacity and is certainly, in my opinion, completely disabled and unemployable. Considering the multitude of problems and the severity of each one of them, and the inter-relation of his pain, general debility, and emotional state, it is very likely that [the Veteran] is prevented of obtaining substantially gainful employment by these symptoms. My conclusion is based upon the fact that, due to the nature of his low back and right knee disabilities, his aseptic necrosis of his hip, along with his PTSD, headaches, fibromyalgia, insomnia, and extreme anxiety, and the fact that his orthopedic problems cause daily pain with a limited ability to stand, sit, walk, bend, and lift, he is unable to obtain any substantial gainful employment." The Board finds the April 2013 private medical opinion by Dr. B.K. to be both competent and highly probative. Dr. B.K. was the Veteran's primary care physician, he reviewed the medical evidence of record, to include service treatment records and post-service treatment records. Dr. B.K. also provide a thorough medical opinion supported by a rationale. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The Board finds that beginning October 23, 2000, the Veteran met the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for a TDIU during this period as one of his disability was rated at 40 percent or more, and his combined rating was 70 percent. Further, based on the evidence discussed above, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to secure gainful employment due to his service-connected disabilities. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met for the period beginning October r23, 2000. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER For the initial rating period on appeal, a 20 percent rating, but no higher, for lumbar back strain is granted. For the initial rating period prior to February 17, 2007, a rating of 10 percent, but no higher, for right knee patellar chondromalacia is granted. For the initial rating period beginning February 17, 2007, a rating in excess of 10 percent for right knee patellar chondromalacia is denied. A TDIU under 38 C.F.R. § 4.16(a) is granted beginning October 23, 2000. REMAND Consideration for an extraschedular rating under 38 C.F.R. § 4.16(b) is warranted for the period prior to October 23, 2000. As noted above, the Veteran submitted an April 2013 private medical opinion from Dr. B.K., the Veteran's primary care physician, relevant to the TDIU issue. Accordingly, the case is REMANDED for the following action: 1. The claim for a TDIU under 38 C.F.R. § 4.16(b) for the period prior to October 23, 2000 is to be submitted to the Director, Compensation and Pension Service. 2. If the determination remains adverse to the Veteran, the Veteran and his representative should be provided a supplemental statement of the case, which includes a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. Each should be afforded a reasonable period in which to respond, and the record should then be returned to the Board for further appellate review, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs