Citation Nr: 1333728 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-09 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating (evaluation) in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome (right knee disability). 3. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome (left knee disability). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1974 to January 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the RO in Philadelphia, Pennsylvania, which granted service connection for a lumbar spine disability and assigned an initial rating of 40 percent, effective July 5, 2007. In the November 2007 rating decision, the RO also granted service connection for the Veteran's right and left knee disabilities and assigned an initial rating of 10 percent for each knee, effective July 5, 2007. Jurisdiction rests with the Winston-Salem RO. On the March 2009 substantive appeal (VA Form 9), the Veteran indicated that she wanted a video conference hearing before the Board. In a subsequent March 2009 written statement, the Veteran withdrew the request for a hearing. Therefore, the request for a hearing has been withdrawn. FINDINGS OF FACT 1. For the period prior to February 22, 2012, the Veteran's lumbar spine DDD has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during a 12-month period. 2. For the period beginning February 22, 2012, the Veteran's lumbar spine DDD has been manifested by incapacitating episodes having a total duration of at least six weeks during a 12-month period. 3. For the entire initial rating on appeal, the Veteran's right and left knee disabilities have been manifested by painful motion with extension, at worst, to 20 degrees, without lateral instability or recurrent subluxation, and without dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joint. CONCLUSIONS OF LAW 1. For the initial rating period prior to February 22, 2012, the criteria for a rating higher than 40 percent for DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237, 5243 (2013). 2. For the initial rating period beginning February 22, 2012, the criteria for a rating of 60 percent for DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237, 5243 (2013). 3. For the entire initial rating period on appeal, the criteria for a rating of 30 percent, but no higher, for right knee patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, and 4.71a, Diagnostic Code 5260, 5261 (2013). 4. For the entire initial rating period on appeal, the criteria for a rating of 30 percent, but no higher, for left knee patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, and 4.71a, Diagnostic Code 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. Because this is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the lumbar spine, right knee, and left knee disabilities, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Social Security Administration disability records, private treatment records, VA treatment records, and statements from the Veteran. The Veteran was also afforded VA examinations in August 2007, May 2010, and February 2012. The Board finds that the VA examination reports were written after an interview with the Veteran and contained specific findings indicating the nature and functional limitations of the Veteran's disabilities, the VA examinations are adequate for rating purposes. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Further, the Veteran and her representative have not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims 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). Disability Rating Laws and Regulations 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 (2013). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability ratings assigned to his service-connected disabilities by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. As the Board will discuss in more detail below, the Board finds that symptoms and impairment related to the bilateral knee disability have remained relatively consistent over the course of the appeal and therefore do not warrant a staged rating. However, the Veteran's lumbar spine disability does warrant a staged rating due to an increase in severity beginning February 22, 2012. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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 DDD of the Lumbar Spine In the November 2007 rating decision, the RO evaluated the Veteran's DDD of the lumbar spine in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain. Given that the Veteran has currently diagnosed DDD of the lumbar spine, Diagnostic Code 5243 for intervertebral disc syndrome is also for application. The Veteran has also been assigned 10 percent disability ratings for radiculopathy of the right and left lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013), for paralysis of the sciatic nerve. See April 2013 rating decision. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. As noted above, the RO has awarded a separate compensable ratings for radiculopathy of the right and left lower extremity as a result of the service-connected DDD of the lumbar spine and the Veteran has not perfected an appeal with regarded to the ratings assigned and those ratings will not be addressed. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under current provisions for rating intervertebral disc syndrome, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25 (2013). 38 C.F.R. § 4.71a, Diagnostic Code 5243. For evaluation of intervertebral disc syndrome, with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. For purposes of evaluations under Diagnostic 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. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. In an August 2007 VA examination report, the Veteran reported low back pain which worsened with prolonged walking or standing. Upon physical examination, the VA examiner noted very limited motion with extension to 5 degrees, forward flexion to 15 degrees, lateral flexion to 15 degrees both sides, and lateral rotation to 15 degrees both sides. It was noted that the Veteran was capable of only very slow repeats of the low back motion and on such repetitive motion, the range of motion was not additionally limited by pain, fatigue, or lack of endurance. In a May 2010 VA examination, the Veteran again reported low back pain and difficulty with prolonged standing, walking, bending, or lifting. Upon physical examination, extension was limited to 20 degrees, with pain at 10 degrees; forward flexion to 90 degrees, with pain at 80 degrees; lateral flexion to 20 degrees both sides, with pain at 10 degrees; and lateral rotation to 20 degrees both sides, with pain at 10 degrees. With repetitive use, the range of motion was not additionally limited by pain, fatigue, or lack of endurance. The Veteran denied flare-ups and denied any incapacitating episodes during a 12-month period. In the most recent February 2012 VA examination report, range of motion testing of the lumbar spine revealed extension limited to 5 degrees, with pain at 5 degrees; forward flexion to 10 degrees, with pain at 10 degrees; lateral flexion to 5 degrees both sides, with pain at 5 degrees; and lateral rotation to 10 degrees both sides, with pain at 10 degrees. With repetitive use, all range of motion was limited to 5 degrees. The VA examiner noted that the Veteran had incapacitating episodes during a 12-month period, with a total duration of at least six weeks. The VA examiner further noted that the Veteran used a cane and that the back condition caused "severe" mobility issues with restricted bending, lifting, twisting, and minimal lifting, if at all. VA treatment records from the Philadelphia VA Medical Center show ongoing treatment for low back pain. Further, Social Security Administration disability records reveal that the Veteran was found disabled as of July 2004, in part, for lumbar spine disorder. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's service-connected DDD of the lumbar spine for the period prior to February 22, 2012, does not warrant a rating higher than the 40 percent currently assigned. To warrant a 50 percent rating or above, a diagnosis of ankylosis of the spine is required. Here, the August 2007 and May 2010 VA examiners did not finds ankylosis of the spine and the Veteran was able to demonstrate some motion, although limited, of the lumbar spine. For these reasons, the Board finds that the Veteran is not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to February 22, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board has also considered the Veteran's DDD of the lumbar spine under the rating criteria for intervertebral disc syndrome. However, the evidence does not support a higher rating at any time prior to February 22, 2012. In this regard, the Veteran specifically denied any flare-ups and denied any incapacitating episodes during the last 12-month period. See May 2010 VA examination report. As such, the Board finds that consideration of the Veteran's DDD of the lumbar spine under the rating criteria for intervertebral disc syndrome does not result in a rating higher than 40 percent. That notwithstanding, the Board finds that for the period beginning February 22, 2012, the Veteran's DDD lumbar spine disability more nearly approximates a 60 percent rating under the rating criteria for intervertebral disc syndrome. As specifically found by the February 2012 VA examiner, the Veteran had incapacitating episodes during the last 12-month period, with a total duration of at least six weeks. Although the record does not clearly indicate physician prescribed bed rest, the examination report form completed by the VA examiner doe include a note indicating that for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician. The examiner did indicated that the Veteran had incapacitating episodes and therefore, resolving any doubt in the Veteran's favor the Board will accept the VA examiner's conclusion regarding incapacitating episodes. The VA examiner further noted that the Veteran used a cane and that the back condition caused "severe" mobility issues with restricted bending, lifting, twisting, and minimal lifting. For evaluation of intervertebral disc syndrome, with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Accordingly, the Board finds that a 60 percent disability rating for DDD of the lumbar spine is warranted effective February 22, 2012. The Board further finds that there are no other potentially applicable diagnostic codes by which to consider the Veteran's service-connected DDD of the lumbar spine. In this case, while there is radiological evidence of degenerative changes of the lumbosacral, the Veteran is being rated for limitation of motion of the lumbosacral associated with such degenerative changes. Furthermore, the maximum rating otherwise allowable for arthritis in the absence of limitation of motion is 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). The Board also finds, as discussed above, that there is no evidence that the Veteran's DDD of the lumbar spine have resulted in disability comparable to ankylosis at any time during the appeal period, rendering higher ratings under the current General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5243 (2013) inappropriate. Additionally, the Veteran is already in receipt of separate disability ratings for radiculopathy of the lower extremities; thus, the Board finds that no other separate rating for neurological disability is warranted. Further, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that the Veteran is being rated for limitation of motion of the lumbar under Diagnostic Codes 5237 and 5243, that any such pain and its effect on the Veteran's range of motion is contemplated in the ratings currently assigned. Therefore, the Board does finds that ratings higher than those initially and currently assigned for the Veteran's lumbar disability based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59 is not warranted under the rating criteria. In sum, the evidence of record shows that, for the period prior to February 22, 2012, a disability rating higher than the 40 percent currently assigned for the Veteran's service-connected DDD is not warranted. For the period beginning February 22, 2012, the Board finds that a 60 percent rating, but no higher, for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least six weeks during the past 12 months is warranted. Rating for Right and Left Knee Disabilities For the entire initial rating period under appeal, the Veteran's knee disabilities, diagnosed as patellarfemoral syndrome, have been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for the right knee and 5299-5260 for the left knee. The Board notes that 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. Diagnostic Code 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a. 38 C.F.R. §§ 4.20, 4.27 (2013). Upon review of the evidence of record, the Board finds that Diagnostic Code 5261, addressing limitation of motion with respect to extension, is the more appropriate diagnostic code for the Veteran's bilateral knee disability. Diagnostic Code 5260 addresses limitation of motion with respect to flexion. Flexion limited to 45 degrees warrants a 10 percent evaluation. A 20 percent rating requires flexion limited to 30 degrees. The maximum rating of 30 percent is reserved for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 10 degrees merits a 10 percent evaluation. A 20 percent rating is reserved for extension limited to 15 degrees, while a 30 percent rating is reserved for extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent evaluation. The maximum 50 percent rating is awarded when there is extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5257 sets forth a 10 percent evaluation for slight impairment due to recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability. Severe impairment due to recurrent subluxation or lateral instability results in the maximum 30 percent evaluation. 38 C.F.R. § 4.71a. Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include: Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5258 for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint, Diagnostic Code 5259 for symptomatic removal of the semilunar knee cartilage, Diagnostic Code 5262 for impairment of the tibia and fibula, and Diagnostic Code 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Separate disability evaluations are assigned where a veteran has both a compensable (10 percent or higher) limitation of flexion and a compensable limitation of extension of the same knee pursuant to Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-04. A Veteran may also receive separate ratings for arthritis and instability of the same knee under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 09-98; VAOPGCPREC 23-97; see also Esteban, 6 Vet. App. at 259; Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran contends that she experiences longstanding bilateral knee pain which she claims is worse when walking more than 200 feet, squatting, bending, or standing for prolonged periods of time. The evidence of record includes a VA examination report dated August 2007 where the Veteran complained of constant bilateral knee pain. The Veteran reported taking Vicodin and a Motrin-like medicine for pain relief. The Veteran further reported that pain worsened after provocation, such as prolonged standing or walking; however, the Veteran denied spontaneous flare-ups. Upon physical examination, the August 2007 VA examiner noted that the Veteran ambulated with a normal gait and did not utilize any assistive devices for ambulation. The VA examiner noted that the joints appeared normal, no laxity was demonstrated, and muscle strength was normal. The Veteran declined to perform range of motion testing of either knee because, according to the Veteran, motion testing would have caused her increased pain when faced with walking a few blocks to return home after the examination. In a May 2010 VA examination report, the Veteran reported difficulty with prolonged standing, walking, climbing, and squatting. Upon range of motion testing, the VA examiner noted bilateral knee extension to 20 degrees and bilateral flexion to 80 degrees. There was evidence of moderate to severe pain in both knees with flexion from 70 to 80 degrees. With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was also no additional loss of function of the knees on physical examination. The Veteran also denied flare-ups. There was no instability of the knees and no swelling, crepitus, locking, or effusion. In the most recent February 2012 VA examination report, the Veteran reported bilateral knee pain, with difficulty walking, standing, or squatting for prolonged periods. Range of motion testing revealed right knee flexion limited to 75 degrees with objective evidence of pain beginning at 75 degrees. Extension of the right knee was limited to 5 degrees with objective evidence of pain beginning at 5 degrees. In the left knee, flexion was limited to 90 degrees with objective evidence of pain beginning at 90 degrees. Extension of the left knee was limited to 5 degrees with objective evidence of pain beginning at 5 degrees. The VA examiner also noted no instability of the knees. Patellar subluxation and dislocation was negative and the Veteran had no meniscal conditions. Contributing factors associated with functional loss of the knees included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, and disturbance of locomotion. VA treatment records from the Philadelphia VA Medical Center show treatment for bilateral knee pain that was treated with injections. VA treatment records also reveal bilateral knee tenderness to palpation as well as pain on motion. Upon review of all the evidence of record, the Board finds that, for the entire initial rating period, the weight of the evidence is in equipoise as to whether the Veteran's bilateral knee disability warrants a higher rating in excess of 10 percent. Although the evidence demonstrates different range of motion testing results throughout the rating period, the Veteran's symptoms and reported complaints have remained relatively consistent. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that he Veteran has had bilateral knee pain, pain on motion, flexion at worst to 70 degrees with pain, and extension, at worst, limited to 20 degrees with pain. See May 2010 VA examination report. As noted above, Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 45, 30, 20, 15, 10, and 5 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had bilateral knee extension limited to 20 degrees with pain in the May 2010 VA examination. The Board recognizes that the Veteran's bilateral knee extension showed some improvement in the February 2012 VA examination as bilateral knee extension was only limited to 5 degrees with pain. The Board finds that the evidence of record, to include the May 2010 and February 2012 VA examination reports, is in equipoise as to whether a higher rating in excess of 10 percent for the Veteran's bilateral knee disability is warranted. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire initial rating period on appeal, the Veteran's right and left knee disabilities each warrant a 30 percent rating under Diagnostic Code 5261 for extension limited to 20 degrees. In determining the Veteran's evaluation, the Board has also considered whether higher or separate ratings are warranted under Diagnostic Code 5260, which contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 15, 30, 45, and 60 degrees, disability ratings of 30, 20, 10 and 0 percent, respectively, are assigned. 38 C.F.R. § 4.71a. Here, the Veteran's bilateral knee flexion was, at worst, to 70 degrees in the May 2010 VA examination. Therefore, as the evidence does not show flexion limited to 45 degrees, the Board finds that a separate or higher rating for limitation of flexion (Diagnostic Code 5260) is not warranted for either knee. See VAOPGCPREC 9-04. The Board has also considered whether the Veteran is entitled to a higher rating under DeLuca due to functional impairment. See 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Veteran has consistently reported pain in both knees on motion. The Board finds her statements to be consistent with the evidence of record and thus credible. The VA examination reports did not note that there was loss of range of motion following repetition. The VA examiners in May 2010 and February 2012 found that the Veteran was able to perform repetitive use testing with three repetitions. The Veteran's post-test range of motion results in the knees were the same as the first range of motion result. As such, the Board finds that a higher rating due to functional impairment is not warranted. The evidence also demonstrates that the Veteran had tenderness and pain, but no instability of the knees. See August 2007, May 2010, and February 2012 VA examination reports; see also Dorland's Illustrated Medical Dictionary 944 (32nd ed. 2012) ("functional instability" defined as inability of a joint to maintain support during use). As such, a separate rating on the basis of other impairment of the knees, including recurrent subluxation or lateral instability, is not warranted. See Diagnostic Code 5257. The Board has also considered whether any other diagnostic code would allow for a rating in excess of 30 percent for the Veteran's bilateral knee disability. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Although the Veteran reported symptoms of pain and effusion, the medical evidence revealed no complaints of locking and no showing of dislocation of the semilunar cartilage; therefore, Diagnostic Code 5258 does not apply. Further, the highest rating available under Diagnostic Code 5258 is 20 percent. Here, the Veteran has already been granted a 30 percent rating under Diagnostic Code 5261; therefore, a higher rating under Diagnostic Code 5258 is not possible. Diagnostic Code 5259 addresses removal of symptomatic semilunar cartilage, but there is no indication that the Veteran has undergone such a procedure; thus, Diagnostic Code 5259 does not apply. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. Finally, in considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as the evidence does not show knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, therefore, Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. For these reasons, the Board finds that a higher rating of 30 percent under Diagnostic Code 5261 for limitation of extension for the Veteran's bilateral knee disability is warranted for the entire initial rating period on appeal. 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 spine, right knee, and left 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, for the period prior to February 22, 2012, the Veteran's lumbar spine DDD has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes, prescribed by a physician, having a total duration of at least six weeks during any 12-month term during this period. On the other hand, for the period beginning February 22, 2012, although the Veteran's lumbar spine DDD did not manifest unfavorable ankylosis, it has resulted in incapacitating episodes having a total duration of at least six weeks during a 12-month period. As to the Veteran's bilateral knee disability, for the entire initial rating period on appeal, the Veteran's knees have been limited by pain on motion with extension limited to 20 degrees. 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). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. It is noted that the Veteran is currently in receipt of a combined 100 percent schedular evaluation for her service-connected disabilities; however, this fact alone does not end the inquiry. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an 'additional' disability of 60 percent or more ('housebound' rate). In this case, the Veteran was granted entitlement to special monthly compensation under 38 U.S.C. § 1114(s) in an April 2013 RO rating decision and the Board finds that no TDIU claim is raised pursuant to Rice. ORDER For the period prior to February 22, 2012, a rating in excess of 40 percent for the Veteran's lumbar spine DDD is denied. For the period beginning February 22, 2012, a rating of 60 percent, but no higher, for the Veteran's lumbar spine DDD is granted. For the entire initial rating period, a rating of 30 percent, but no higher, for right knee patellofemoral syndrome based on limitation of extension is granted. For the entire initial rating period, a rating of 30 percent, but no higher, for left knee patellofemoral syndrome based on limitation of extension is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs