Citation Nr: 1334369	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  08-07 671	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1.  Entitlement to an initial disability rating greater than 10 percent for retropatellar pain of the left knee. 

2.  Entitlement to an initial disability rating greater than 10 percent for retropatellar pain of the right knee. 

3.  Entitlement to an initial disability rating greater than 10 percent for posttraumatic coccydynia.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Barner, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 2002 to March 2006. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2006 and February 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction was subsequently transferred, most recently to the RO in Manchester, New Hampshire.  

In April 2011 the Board remanded this claim in order to obtain VA examinations, which were afforded in October 2011.  As such, the Board determines that there was substantial compliance with the remand directives, and will proceed to adjudicate the claims.  

While on remand, in a November 2012 rating decision, the RO granted the claim of entitlement to service connection for hypertension, such that it is no longer on appeal.  In addition, in a November 2012 rating decision, the RO granted a separate 20 percent rating for chronic lumbar strain associated with posttraumatic coccydynia, claimed as coccyx pain, tailbone.  The Veteran was advised in a November 2012 notice letter that to continue the appeal for the chronic lumbar strain, he has one year to file a Notice of Disagreement (NOD).  See 38 C.F.R. §§ 20.201, 20.302(a) (2013).  To date, no such NOD is of record.  That is, since the Veteran has not since appealed either the initial rating or effective date assigned for his chronic lumbar strain, that issue is not on appeal before the Board at the present time.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues).


FINDINGS OF FACT

1.  Left knee symptomatology includes pain and limited motion, but does not include flexion limited to 30 degrees, extension limited to 15 degrees, ankylosis or impairment of the tibia and fibula with malunion and moderate knee or ankle disability.

2.  Right knee symptomatology includes pain and limited motion, but does not include flexion limited to 30 degrees, extension limited to 15 degrees, ankylosis or impairment of the tibia and fibula with malunion and moderate knee or ankle disability.

3.  Left knee instability is characterized by buckling and giving way of the knee even though examination reports have normal stability test results, such that instability is best characterized as slight.  

4.  Right knee instability is characterized by buckling and giving way of the knee even though examination reports have normal stability test results, such that instability is best characterized as slight.  

5.  The Veteran's coccydynia is manifested by pain and is analogous to complete or partial removal of the coccyx with painful residuals.


CONCLUSIONS OF LAW

1.  The requirements for an initial rating in excess of 10 percent for retropatellar pain of the left knee, based on limited motion, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5099-5014, 5003, 5260, 5261 (2013). 

2.  The requirements for an initial rating in excess of 10 percent for retropatellar pain of the right knee, based on limited motion, have not been met.  38 U.S.C.A.§§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5099-5014, 5003, 5260, 5261 (2013). 

3.  Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 10 percent, but no higher, for left knee instability have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2013).

4.  Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 10 percent, but no higher, for right knee instability have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2013).

5.  The criteria for an initial rating in excess of 10 percent for the Veteran's coccydynia have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5298 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in April 2006, January 2008, and May 2008 VCAA correspondence of the information and evidence needed to substantiate and complete his claims, to include information regarding how disability evaluations and effective dates are assigned.  38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  See also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Moreover, the May 2008 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice, and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated).  The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required.  The May 2008 VCAA letter was fully sufficient.  

VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations.  The October 2011 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal, and is adequate for purposes of this appeal.  

With regard to the previous April 2011 Board remand, the Board finds that the RO/AMC substantially complied with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance).  Specifically, pursuant to the remands, the RO/AMC secured additional VA treatment records; afforded the Veteran a VA examination to determine the etiology of his hypertension; and, afforded the Veteran several VA examinations to rate the current extent and severity of his service-connected knees and posttraumatic coccydynia.  As such, the RO has substantially complied with the Board's instructions.  

There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication.  Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists.  Hence, the case is ready for adjudication.  The Board is therefore satisfied that the RO has provided all assistance required by the VCAA.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2013).
  


Increased Ratings

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Here, however, as shown below, the evidence warrants the uniform ratings that have been assigned.  See also Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 C.F.R. § 3.344.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40 (2013).  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45 (2013).  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013).  Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

Additionally, the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45.  Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, 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.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

Knees

The Veteran's left and right knee disabilities are each rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5014 (osteomalacia).  A note to this Diagnostic Code reflects that this disability will be rated on limitation of motion of the affected part, as degenerative arthritis.

Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis established by X-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved.  If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Evaluations for limitation of flexion of a knee are assigned as follows:  flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). 

Evaluations for limitation of knee extension are assigned as follows:  extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). 

Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II (2013). 

The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.  38 C.F.R. § 4.14.  However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  In this regard, VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  See VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997).  VA's General Counsel subsequently clarified that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  Regardless, VA's General Counsel added that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  See VAOPGCPREC 9-98 (August 14, 1998).

According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of this joint, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  Under Johnson v. Brown, 9 Vet. App. 7, 11 (1996), Diagnostic Code 5257 is not predicated on loss of range of motion, thus, 38 C.F.R. §§ 4.40 and 4.45 as well as the Deluca case do not apply to Diagnostic Code 5257.

The terms "slight," "moderate" and "severe" among other components of the rating criteria are not expressly defined in the rating schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

As a preliminary matter, Diagnostic Codes 5258 for dislocated semilunar cartilage or 5259 for symptomatic semilunar cartilage or 5262 for impairment of the tibia and fibula or 5256 for ankylosis are not for application.  38 C.F.R. § 4.71a (2013).  That is, there is no probative lay or medical evidence of record warranting their respective applications.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).    

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating for functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson  v. Brown, Vet. App. 7 (1996).

The Veteran contends that he experiences symptoms to include pain and cracking in his knees, and that he is entitled to higher ratings greater than 10 percent for each knee.  

VA treatment records show that in 2006 the Veteran reported that he walked with his feet inverted due to other foot problems; however, this caused pain in his knees.  

The Veteran was afforded a May 2006 VA examination wherein his bilateral retropatellar pain was reported, and described as popping, bothersome when sitting or transitioning from sitting to standing.  He had not received treatment for his knees, and was returned to duty.  The Veteran noted that he experienced pain that was a five of 10, along with instability and lack of endurance.  He reported that he did not experience flare-ups associated with this, and that there were no other concurrent symptoms noted.  His knees did not affect his activities of daily living.  

On examination, gait and posture were normal.  Range of motion bilaterally was from 0 degrees to 130 degrees flexion, limited by body habitus.  McMurray, Drawer and Lachman's tests were negative.  There was no additional limitation in motion following repeated resistance testing of the knees.  Although there was no pain, weakness, or tenderness on motion, the Veteran had palpable subpatellar tenderness with motion of the patella.  Knee X-rays showed no joint effusion, and accessory ossification center for the inferior pole of the right patella.  Impression was of normal bilateral knees.  Diagnosis was of bilateral retropatellar pain syndrome.  

November 2006 and 2008 X-rays of the bilateral knees gave an impression of mild degenerative changes in the lateral compartment of the right knee, and no other significant abnormality.  In addition, there was a small corticated ossification in the lower pole of the right patella, most likely an ununited ossicle.  

The Veteran was afforded a VA examination in December 2006.  He reported that he wore self-prescribed knee braces because of painful weight bearing, especially in the morning.  The Veteran reported experiencing residual aching and stiffness of the knees.  He indicated that his knees were unstable a couple times weekly.  His knees bothered him daily, and he wore knee braces with minimal improvement.  He had not experienced flare-ups of knee pain or incapacitation during the previous year.  The Veteran treated his knee pain with Piroxicam.  

On examination, knee range of motion testing revealed flexion to 140 degrees, and extension to 0 degrees.  Knee joints were not painful with motion.  Following repetitions, there was not additional pain, fatigue, incoordination, weakness, or lack of endurance.  There was no objective evidence of painful motion, heat, redness, swelling, tenderness or instability of either knee.  There were no gait or functional limitations on standing and walking.  Ankylosis was not present.  Stability tests were normal.  The examiner indicated that the Veteran had not experienced acute flare-ups of the knee pain or incapacitation in the previous year.  The examiner indicated that the Veteran could walk without impediment, dress and undress, and operate a motor vehicle without impediment from his knee pain.  Diagnosis was of retropatellar pain syndrome, bilateral knees.  

VA treatment notes from 2006 show that the Veteran reported experiencing bilateral knee pain, especially in the anterior portion of the knee, with increasing popping sounds.  He reported that there was no swelling or locking, and he indicated that his knees occasionally gave way suddenly.  On examination, the patellae were somewhat prominent bilaterally.  There was no effusion or point tenderness.  Drawer, Lachman, and McMurray's tests were negative.  Active range of motion was from 0 to 140 degrees.  Assessment was of chronic anterior knee pain, and he was advised to avoid excessive climbing and squatting.  The Veteran continued to report popping in his knees in 2007.  

Pursuant to an April 2011 Board remand, the Veteran was afforded a VA examination in October 2011 for his knees.  His diagnosis of chondromalacia patella-retropatellar syndrome was reviewed.  The Veteran reported that he experienced progressive onset of pain in both knees, under the patellas with a popping and grinding sensation.  He described his pain as continual and constant, especially in the anterior of the knees.  The Veteran reported that with movement, especially climbing stairs or a hill, there was cracking and grinding.  The Veteran reported that his knee had buckled occasionally, but that there was no locking.  He had never been told that he had arthritis, cartilage, ligament or meniscal problems.  The examiner indicated that there was no history of knee surgeries.  The Veteran explained that it felt as if his bones tired easily.  The Veteran reported that he experienced flare-ups that impacted his knee functioning.  He described these as involving increased pain and weakness that made it more difficult for him to stand or walk.  Such flare-ups lasted hours, but never more than a day.  When he experienced such flare-ups he attempted to sit down and take the weight off of his knees.  

X-ray report indicated that there was no bone, joint or soft tissue abnormality of the knees.  On the right, there appeared to be secondary ossification center of the patella, a normal atomic variant.  Impression was of normal bilateral knees.  

On examination, range of motion testing showed right knee flexion to 100 degrees, and extension to 0 degrees, with objective evidence of pain at 0 degrees each.  Left knee flexion was to 110 degrees, and extension to 0 degrees, with objective evidence of painful motion at 0 degrees.  Following repetitions, there was no additional loss of motion.  The Veteran experienced functional loss, characterized by less movement than normal in his knees and pain on movement.  The Veteran experienced tenderness or pain to palpation of the joint line or soft tissues of either knee.  Knee flexion and knee extension had normal strength.  Anterior, posterior, and medial-lateral instability tests were all normal bilaterally.  There was no patellar subluxation or dislocation.  The Veteran did not use any assistive devices as a normal mode of locomotion.  Imaging studies did not document degenerative or traumatic arthritis.  There was no X-ray evidence of patellar subluxation.  There were no other significant diagnostic test findings or results.  The Veteran reported that his work in security involved mainly sitting, such that it did not affect his knee condition.  He indicated, however, that due to his knees, it would have been more difficult to work if prolonged standing, walking, frequent stair climbing, kneeling or squatting were required on a regular basis.   

The evidence reveals no evidence of right or left knee ankylosis.  Extension is not limited to 10 degrees on either the left or the right knees, and as such would be noncompensably disabling under Diagnostic Code 5261.  38 C.F.R. § 4.71a.  Similarly, any limitation of flexion demonstrated would be noncompensably disabling under Diagnostic Code 5260, as it was at most limited to 100 degrees on either knee.  Id.  Even with consideration of pain and other functional loss factors, the Board finds that the Veteran's pain and limitation of motion of the knees do not warrant a rating in excess of 10 percent for each knee.  38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.  As such, the preponderance of the evidence is against an initial rating in excess of 10 percent for the right and left knees based on limited motion.  

Under the circumstances of this case, the preponderance of the evidence is against the appellant's claim for an increased evaluation beyond 10 percent for each right and left knee disability based on limited motion, and the doctrine of reasonable doubt is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

However, the Board is aware of the Veteran's lay contentions regarding his knees buckling and giving out.  He reported that he wore knee braces to assist him with weight-bearing.  His lay assertions regarding periodic instability are competent and credible.  Regarding right and left knee instability, there is at least an equipoise of the evidence and all reasonable doubt has been resolved in favor of the Veteran, such that separate 10 percent ratings for right and left knee instability of a "slight" degree are granted under Diagnostic Code 5257.  38 C.F.R. § 4.3. 

But with regard to instability, the evidence of record does not reveal a "moderate" 20 percent rating for either his left or right knee disabilities.  Id.  Objective testing in medical evidence and examinations throughout the appeal has shown normal stability.  Overall, any signs of instability present in both the right and left knees are more than adequately reflected in the separate 10 percent ratings now currently assigned.  


Coccydynia 

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20. 

In this case, the Veteran has a service-connected disability, i.e., coccydynia, that is not listed in the rating schedule.  The RO has rated the Veteran's coccydynia by analogy to removal of the coccyx under DC 5298.  A noncompensable evaluation is assigned for partial or complete removal of the coccyx, without painful residuals and a maximum 10 percent evaluation is assigned for removal of the coccyx with painful residuals.  38 C.F.R. § 4.71a, DC 5298 (2013). 

Under the law, the Veteran is currently receiving the maximum disability evaluation under Diagnostic Code 5298 which requires painful residuals following partial or complete removal of the coccyx. 

The Veteran has reported that he experiences pain radiating from his tailbone down to his feet.  

The Veteran was afforded a May 2006 VA examination wherein he reported that he had injured his coccyx during service when a field truck he was in was rear-ended by another truck.  The Veteran indicated that he had pain in the spinal area, but no surgery.  He reported that his pain was an eight on a scale with 10 as the worst, constant, and sharp, with no history of flare-ups.  He did not use any assistive devices.  He reported no associated symptoms.  He indicated that he could walk approximately 100 yards.  He did not have a history of falls.  He reported that he was able to perform activities of daily living without impairment from his spine, and could drive without difficulty.  

On examination, gait and posture were normal.  Range of motion testing showed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees.  Pain was noted at the end of flexion.  There was no change in motion or additional limitation following repetitive resistance testing of the lumbar spine.  There was palpable tenderness over the lumbosacral paraspinal muscles, but no spasm, and no change in spinal contour.  There was also palpable tenderness over the coccyx.  Neurologically there was normal sensation to light touch (with the exception of the ulnar distribution on both hands).  There was good strength of the lower extremities, and muscle tone without atrophy.  X-ray of the sacrum and coccyx showed no evidence of fracture or sclerotic or lyctic lesions.  X-ray of the lumbosacral spine indicated satisfactory alignment, open sacroiliac joints, moderately narrow L5-S1 disk space without associated bony degenerative changes, possibly representing variation of normal or degenerative disc change.  There was straightening of normal curvature of the spine on lateral view, possibly representing flexion of the spine at the time of film exposure, or muscle spasm.  There was subtle rotoscoliosis convex to the left.  Diagnosis was of posttraumatic coccydynia.  

VA treatment records show that the Veteran obtained physical therapy for his low back pain, reported as pain in his tailbone.  He indicated that 50 percent of his day was spent sitting.  He indicated that he experienced pain that was a six of 10 on a daily level.  The Veteran's gait was not antalgic.  Increased lumbar lordosis was noted of his posture.  Range of motion testing showed trunk flexion to 90 degrees, with erector tightness noted, and extension to 20 degrees.  Mechanical back pain, poor posture was assessed.  The Veteran was educated regarding posture, and advised of stretches.  Impression following imaging in May 2006 showed moderately narrow L5-S1 disk space without associated degenerative changes, and could represent a variation of normal or degenerative disc change.  There was straightening of normal curvature of the spine on lateral view, possibly representing flexion of the spine at the time of film exposure or muscle spasm.  There was subtle rotoscoliosis to the left.  A July 2006 treatment note indicated that the Veteran's low back pain was nonradiating.  It was indicated that there was [omitted word] occasionally behind the knee but not paresthesias, and not in a radicular pattern.  Assessment indicated there was no evidence for back radiculopathy.  In November 2006 the Veteran had lumbar traction treatment.  He did not use an assistive device for his back.  December 2006 treatment note shows the Veteran reported experiencing low back pain with some radiation to the hips.  

Pursuant to the April 2011 Board remand, the Veteran was afforded an October 2011 VA examination.  His diagnoses were for post-traumatic coccydynia, and chronic lumbar strain.  His history of being thrown from a Humvee into the front seat while wearing full gear and armor was noted, to include the pain he experienced in his low back and coccyx area ever since.  The Veteran was initially treated with physical therapy and analgesics, and service connection for coccydynia, claimed as coccyx pain, or tailbone pain had been granted.  The Veteran reported experiencing continued symptoms of intermittent back pain that seemed to be more constant in colder weather.  The pain was located in his low back and sacral area, and radiated to his mid-back.  The Veteran described experiencing pain with some tingling radiating down his legs to approximately the mid-calf area several times weekly, and lasting approximately 40 minutes.  There was no associated numbness.  The Veteran reportedly did not experience flare-ups.  

X-ray report of the lumbar spine showed vertebral body height and intervertebral disc spaces were normal, as was alignment, paraspinal soft tissues, sacroiliac joints, and bony mineralization.  Impression was of a normal lumbar spine.  

On examination, range of motion testing revealed forward flexion to 90 or greater degrees, with painful motion at 0 degrees.  Extension ended at 20 degrees, with painful motion at 0 degrees.  Right lateral flexion ended at 15 degrees, left lateral flexion ended at 10 degrees, right and left lateral rotation each ended at 10 degrees, and for each of these there was objective evidence of painful motion beginning at 0 degrees.  Following repetitions, there were no additional limitations in range of motion.  The Veteran experienced functional loss or impairment of his spine, in that there was less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing.  There was tenderness on palpation over the low lumbar spine and sacral area, and tenderness and tightening of the low paraspinal muscles.  Guarding and muscle spasm were present, but did not result in abnormal gait or spinal contour.  Muscle strength testing was normal, and the Veteran was without atrophy.  Reflex and sensory examinations were normal.  There were positive straight leg raising tests.  There was no radicular pain or signs or symptoms due to radiculopathy.  There were no other neurologic abnormalities, and the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine.  There Veteran did not use an assistive device.  The Veteran had been absent from work for several days in the previous year because his back hurt badly.  His work was mainly sedentary.  The Veteran believed that he would be unable to pursue physical jobs requiring frequent lifting, carrying, bending or twisting.  

As such, the examiner indicated that it was at least as likely as not that the Veteran had a separate orthopedic condition of the lumbar spine causally related to service connected posttraumatic coccydynia; specifically, chronic lumbar strain.  The examiner reasoned that the back condition as reported was consistent with a diagnosis of chronic lumbar strain, and the nature of the in-service injury that caused the Veteran's coccydynia was also the type of injury that would commonly lead to lumbar strain.  The examiner indicated that he would attribute both conditions to the same causative injury, and there was no evidence to point to other causes for the Veteran's current back pain or decreased mobility.  Based on this finding, in a November 2012 rating decision, the RO granted a separate 20 percent rating for chronic lumbar strain associated with posttraumatic coccydynia, claimed as coccyx pain, tailbone.  As explained above in the introduction of this decision, the issue of a separate 20 percent rating for the chronic lumbar strain is not on appeal here.  

The Board has considered the Veteran's lay statements that his disability is worse than currently evaluated.  In rendering a decision on appeal, the Board must 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.  See 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.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  The Board finds that the lay evidence of record from the Veteran throughout the appeal is both competent and credible on describing his symptomatology for the posttraumatic coccydynia increased rating issue.  In addition, the medical findings (as provided in the examination reports and the clinical records) also directly address the criteria under which these disabilities are evaluated.  As such, the Board finds these records are quite probative on the issue of his specific disability level, and further notes that such records take into account the Veteran's lay reports of symptomatology.  In any event, the competent and credible lay evidence of record still does not provide a basis for assigning a higher rating above 10 percent under the applicable rating criteria for his posttraumatic coccydynia.  

In light of the record, the Board concludes that the Veteran's coccydynia approximates the already established 10 percent rating under DC 5298.  38 C.F.R. § 4.7 (2013).  As noted above, there were complaints to include pain and difficulty walking and sitting.  In addition, there was objective evidence to palpable tenderness over the coccyx during VA examination.  While the Board acknowledges objective medical evidence supporting his claimed coccyx pain, the maximum rating available under DC 5298 is 10 percent.  

No other diagnostic code would provide the Veteran with a higher or separate rating for his coccyx disability.  In making this determination, the Board acknowledges that the Veteran has some limitation of motion of the lumbosacral spine.  However, although the limitation of motion would warrant a compensable rating under Diagnostic codes 5235 to 5243, the rating code specifically makes a distinction between disabilities of the coccyx and disabilities affecting the cervical and thoracolumbar spine.  Indeed, the general rating formula for diseases and injuries of the spine is specifically noted to apply to Diagnostic Codes 5235 to 5243; there is no reference to Diagnostic Code 5298, which is the only Diagnostic Code that contemplates disability involving the coccyx.  In any event, as noted in the introduction, a 20 percent rating has been assigned for the separately service-connected lumbar strain associated with the posttraumatic coccydinia.  This issue is not on appeal.  

As such, a 10 percent maximum rating, and no higher, is warranted for the Veteran's coccydynia.  38 C.F.R. § 4.3.

Extraschedular Consideration

The symptoms presented by the Veteran's knee disabilities, to include pain, instability, limited motion and functional limitations, are fully contemplated by the rating schedule.  In addition, the symptoms presented by the Veteran's coccydynia, to include pain, are fully contemplated by the rating schedule.  The evidence fails to show anything unique or unusual about the Veteran's disabilities on appeal that would render the schedular criteria inadequate.  There are no additional symptoms of his disabilities on appeal that are not addressed by the Rating Schedule.  The Board has considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) in determining the Veteran's separate ratings here.  Moreover, there are higher ratings available under other diagnostic codes, but he has not been shown to have such symptomatology.  To the extent that the Veteran's disabilities on appeal interfere with his employability (he has missed several days of work a year due to pain), such interference is contemplated by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The disability ratings assigned are adequate to compensate for his minimal loss of working time as the result of the disabilities on appeal.  Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration.  Thun v. Peake, 22 Vet. App. 111 (2008).

Because the threshold step of Thun is not met here, and the Veteran's disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as marked interference with employment or frequent periods of hospitalization.  22 Vet. App. at 116.  See also 38 C.F.R. § 3.321(b)(1).   In any event, such factors are clearly not demonstrated here by the medical and lay evidence of record.  Further, although the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2011), the minimum requirement for a total disability rating has not been met.  Here, the Veteran is working in a security job (see October 2011 VA examinations), such that it is not shown he is unable to maintain or sustain substantially gainful employment due to service-connected disabilities alone.  38 C.F.R. § 4.16 (2013).


ORDER

Entitlement to a rating in excess of 10 percent for left knee disability, manifested by painful motion, is denied.  

Entitlement to a rating in excess of 10 percent for right knee disability, manifested by painful motion, is denied.  

Entitlement to a separate rating of 10 percent for left knee instability is granted, effective March 8, 2006, subject to the law and regulations governing the award of monetary benefits.  

Entitlement to a separate rating of 10 percent for right knee instability is granted, effective March 8, 2006, subject to the law and regulations governing the award of monetary benefits.  

Entitlement to a rating in excess of 10 percent for coccydynia is denied.  



____________________________________________
PAUL S. RUBIN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs