Citation Nr: 1335944 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-17 846A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to an initial disability rating in excess of 10 percent, on an extra-schedular basis, for a low back injury with degenerative joint disease (DJD), prior to February 20, 2007. 2. Entitlement to a disability rating in excess of 20 percent, on an extra-schedular basis, for a low back injury with DJD, from February 20, 2007. 3. Entitlement to a compensable disability rating, on an extra-schedular basis, for residuals of a right wrist injury, prior to February 20, 2007. 3. Entitlement to an initial disability rating in excess of 10 percent, on an extra-schedular basis, for residuals of a right wrist injury, from February 20, 2007. 4. Entitlement to an initial disability rating in excess of 10 percent, on an extra-schedular basis, for postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis. 5. Entitlement to an initial disability rating in excess of 10 percent, on an extra-schedular basis, for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, prior to June 1, 2010. 6. Entitlement to a disability rating in excess of 30 percent, on an extra-schedular basis, for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, from June 1, 2010 through February 22, 2012. 7. Entitlement to a disability rating in excess of 10 percent, on an extra-schedular basis, for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, beginning on February 23, 2012. 8. Entitlement to an initial disability rating in excess of 10 percent, on an extra-schedular basis, for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, prior to June 1, 2010. 9. Entitlement to a disability rating in excess of 20 percent for instability of the right knee, status-post meniscectomy of the right knee with DJD and limitation of motion due to chronic strain, from June 1, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served in the Louisiana Army National Guard with recognized active duty service from February 1982 to June 1982; from December 1990 to April 1991; from December 1991 to April 1992; from January 1997 to December 1999; and from January to May 2000. The Veteran's service in the Louisiana Army National Guard ended in December 2003. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2013, the Board adjudicated the Veteran's claims on a schedular rating basis but remanded the issues of the Veteran's entitlement to extra-schedular disability ratings for his low back, right wrist, right hip, right knee degenerative joint disease and loss of motion, and right knee instability, and his entitlement to a total disability evaluation based upon individual unemployability (TDIU) for further claims development. For its remand, the Board directed that the Veteran be provided "duty to assist" notice concerning his claim for TDIU; the matter be referred to the Director, Compensation and Pension Service for consideration as to whether an extra-schedular rating is warranted; the Veteran be afforded a VA examination to explore whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation; and the issues remaining on appeal be readjudicated. During the post-remand development of the remaining issues delineated in the April 2013 decision and remand, the RO issued an August 2013 rating decision which granted TDIU effective May 28, 2013. As this also represents a full grant of benefits sought as to the claim for a TDIU and the Veteran has not disagreed with the effective dates, this issue is also no longer before the Board. See Grantham, 114 F.3d 1156. The remaining development actions directed by the Board have also been performed, and the matter now returns again to the Board for its de novo consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the voluminous documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. Prior to February 20, 2007, the Veteran's low back disability was manifested by relatively minimal symptoms that did not result in marked interference with the his employment as a truck driver and mechanic. 2. For the period from February 20, 2007, the Veteran's low back disability was manifested by symptoms of pain and loss of thoracolumbar motion which rendered him unable to carry, sit, stand, lift, walk, or bend, and thereby resulted in marked interference with the Veteran's employment as a truck driver and mechanic. 3. For all periods relevant to this appeal, the Veteran's right wrist disability was manifested by pain, weakness, and decreased motion which rendered him unable to lift or carry objects weighing more than 30 pounds; however, this did not result in frequent periods of hospitalization or marked interference with the Veteran's employment as a truck driver and mechanic, and thus, did not render inapplicable the application of the regular schedular standards. 4. For all periods relevant to this appeal, the Veteran's right hip disability was manifested by pain, stiffness, immobility, and altered gait which required him to constantly shift positions, rendered him unable to drive, kneel, squat, or climb, and thereby resulted in marked interference with the Veteran's employment as a truck driver and mechanic. 5. For all periods relevant to this appeal, the Veteran's right knee DJD and instability were manifested by pain, instability marked by frequent falls, diminished right knee flexion and extension, altered gait, snapping, grinding, and crepitus which caused moderate impairment of his activities of daily living and severe impairment of sports; caused difficulty in standing, walking, carrying, and lifting, but did not result in frequent periods of hospitalization or marked interference with the Veteran's employment as a truck driver and mechanic, and thus, did not render inapplicable the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an extra-schedular initial disability rating for a low back injury with DJD have not been met for the period prior to February 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Codes 5242 and 5243 (2013). 2. The criteria for an extra-schedular disability rating of 40 percent for a low back injury with DJD have been met for the period from February 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Codes 5242 and 5243 (2013). 3. The criteria for an extra-schedular compensable initial disability rating for residuals of a right wrist injury have not been met for the period prior to February 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5215 (2013). 4. The criteria for an extra-schedular initial disability rating in excess of 10 percent for residuals of a right wrist injury have not been met for the period from February 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5215 (2013). 5. The criteria for an extra-schedular initial disability rating of 20 percent for postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis has been met for the period from January 29, 2004. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Codes 5003, 5010, and 5252 (2013). 6. The criteria for an extra-schedular initial disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain have not been met for the period prior to February 20, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5260 (2013). 7. The criteria for an extra-schedular disability rating in excess of 30 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain have not been met for the period from June 1, 2010 through February 22, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5260 (2013). 8. The criteria for an extra-schedular disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain have not been met for the period beginning on February 23, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5260 (2013). 9. The criteria for an extra-schedular initial disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain have not been met for the period prior to June 1, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5260 (2013). 10. The criteria for an extra-schedular disability rating in excess of 20 percent for instability of the right knee, status-post meniscectomy of the right knee with DJD and limitation of motion due to chronic strain have not been met for the period from June 1, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 3.321, 4.71a, Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Extra-Schedular Disability Ratings The rating schedule of 38 C.F.R., Part 4 is generally deemed adequate for rating a disability. 38 C.F.R. § 3.321(a). When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extra-schedular rating is warranted. 38 C.F.R. § 3.321(b); see Colayong v. West, 12 Vet. App. 524, 536 (1999). In exceptional cases where schedular ratings are found inadequate, the RO may refer a claim to the Director of C&P for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. See 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. VA must undertake a three-step analysis in determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors under step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. Indeed, in April 2013, the Board determined that the evidence in the claims file raised the question of whether extra-schedular ratings were appropriate for the Veteran's service-connected low back injury with DJD; residuals of a right wrist injury; postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis; status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain; and instability of the right knee, status-post meniscectomy. To that extent, the Board ordered that the matter be referred to the Director, Compensation and Pension Service, for consideration of extra-schedular ratings for each of the aforementioned disabilities. In an August 2013, the Director, Compensation and Pension Service expressed that he did not concur with the recommendation of extra-schedular disability ratings for any of the disabilities at issue. Based upon review of the record, the Director noted that compensable ratings were assigned for the Veteran's right knee DJD, right knee instability, and radiculopathy associated with the Veteran's service-connected low back disability. The Director also noted that two separate compensable ratings were in effect for the Veteran's right hip condition. Although the Director acknowledged that the disabilities in question caused some functional restrictions, he concluded that no individual condition caused marked interference with past employment or was now preventing employment. In that regard, the Director correctly noted that a claim for a TDIU was also pending at that time, and, that the combined impact of the Veteran's disabilities would be taken into consideration in adjudicating that issue. Thus, the Director reasoned, the evidence did not show an unusual or exceptional disability pattern that rendered impractical the regular rating criteria for each of the disabilities at issue. Although the Board is precluded from initially assigning an extra-schedular rating, there is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once the Director of C&P determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996) (stating that once Board properly refers an extra-schedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extra-schedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter...subject to decision by the Secretary shall be subject to one review on appeal to the...Board."). Mindful of the same, the Board now endeavors to consider whether extra-schedular ratings are warranted for any of the disabilities at issue. A. Low Back DJD As noted above, the Veteran's low back DJD has been rated as 10 percent disabling prior to February 20, 2007, and 20 percent disabling from February 20, 2007. These ratings were assigned pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, a 10 percent disability rating is assigned where the evidence shows forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned where the evidence demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is in order where the evidence demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is appropriate for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. For VA compensation purposes, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine consists of flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of thoracolumbar motion is 240 degrees. Disabilities of the musculoskeletal system, such as spine disabilities, are primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. During an October 2004 VA examination, the Veteran reported daily back pain that was localized to the area around his waist and halfway up his back. Severity of the reported pain was described as being a six out of 10 in severity. Functionally, he reported only slightly decreased functional capacity due to pain and stated that he was able to move about and managed his pain symptoms with Ibuprofen. He also reported that he was able to perform his activities of daily living and stated that pain symptoms were alleviated by rest. Despite the foregoing description of his overall functioning, the Veteran asserted that he was no longer able to work in his normal occupations as a cook, truck driver, or equipment operator. During the examination, the Veteran demonstrated normal spine curvature, upright posture, and steady gait that was marked by a slight limp. Positioning of his head was central and there was no asymmetry of appearance. Demonstrated thoracolumbar motion included flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. Repetitive motion testing did not reveal any further loss of motion due to pain, fatigue, weakness, or lack of endurance. The spine was not painful on palpation or during motion and there was no evidence of muscle spasm or guarding. A neurological examination was grossly normal. A February 2007 VA examination indicated noticeable worsening of the Veteran's low back in comparison to findings noted in a prior October 2004 VA examination. In that regard, the February 2007 VA examination noted for the first time symptoms of fatigue, weakness, stiffness, spasm, atrophy, guarding, and lumbar flattening in conjunction with previously noted symptoms of pain. During that examination, the Veteran also ambulated with a cane and stated that he was unable to walk distances of more than a few yards. Demonstrated thoracolumbar motion was also noticeably diminished and consisted of flexion to 40 degrees with pain beginning at 10 degrees (as opposed to flexion to 90 degrees shown during the October 2004 examination), full extension with pain throughout motion, lateral flexion to 10 degrees bilaterally with pain reported throughout motion (as opposed to 30 degrees bilaterally as shown during the October 2004 examination), and lateral rotation to 20 degrees bilaterally with pain beginning at 10 degrees (as opposed to 30 degrees bilaterally as shown during the October 2004 examination). In terms of function, the examiner opined that the Veteran's back disability caused mild impairment of feeding, bathing, dressing, toileting, and grooming, and moderate impairment of chores, shopping, exercise, sports, recreation, and traveling. Subsequent VA examinations performed in February 2012 and May 2013 each note ongoing complaints of gradually worsening low back pain which the Veteran described as being sharp and stabbing quality. During the February 2012 examination of the spine, the Veteran stated that his pain symptoms were exacerbated by prolonged periods of sitting, standing, driving, and ambulating. He also described flare-ups manifested by a limping gait. Demonstrated thoracolumbar motion was essentially consistent with that shown during the February 2007 examination and consisted of flexion to 40 degrees with pain reported from 35 degrees, loss of 15 degrees of extension with pain being reported over the final five degrees of motion, right lateral flexion to 15 degrees with pain reported at the end of motion, left lateral flexion to 25 degrees with pain reported at the end of motion, and lateral rotation to 25 degrees bilaterally with pain being reported at the ends of motion. Repetitive thoracolumbar motion was productive of loss of 5 additional degrees of right lateral rotation, but no other demonstrated loss of motion in any other direction. Additional symptoms of interference with sitting, standing, and/or weightbearing were noted during the examination. Although guarding and spasm were noted again, the examiner opined that these were not productive of an abnormal gait or spine contour. The examiner also stated that the Veteran's back condition was manifested by intervertebral disc syndrome; however, noted that the Veteran did not have any history of incapacitating episodes involving physician prescribed bed rest. Functionally, the examiner concluded that the Veteran's ability to work was greatly impacted by chronic pain, loss of thoracolumbar motion, and inability to carry, reach, sit, stand, or ambulate for prolonged periods. During the May 2013 VA examination, the Veteran continued to report that his pain symptoms flared up after activities involving walking and bending. Once again, demonstrated thoracolumbar motion was grossly unchanged from previous examinations and included flexion to 40 degrees with pain reported at the end of motion, loss of 10 degrees of extension with pain reported at the endpoint of motion, lateral flexion to 15 degrees bilaterally with pain reported at the ends of motion, and lateral rotation to 15 degrees bilaterally with pain reported at the ends of motion. Repetitive motion was not productive of any further loss of motion. Although the examiner again noted intervertebral disc syndrome (IVDS), he noted that the Veteran still did not have any history of incapacitating episodes with physician prescribed bed rest. Overall, the examiner opined that the Veteran was experiencing functional loss due to decreased movement with pain, and interference with sitting, standing, and/or weightbearing. Occupationally, the examiner noted that the Veteran remained limited due to increased pain while lifting, walking, bending, and after prolonged periods of standing. The Board notes that the evidence shows that the Veteran has experienced neurological manifestations that are related to his low back DJD. In that regard, the February 2007 VA examination revealed that the Veteran had diminished sensation to pinprick in his right lower extremity. Knee and ankle jerk reflexes in the right leg were absent. Indeed, in the Board's April 2013 decision and remand, a separate 10 percent disability rating for right lower extremity radiculopathy was granted, effective September 11, 2006. Prior to the February 2007 VA examination, the Veteran self-reported a high level of functioning which included the ability to manage all of his activities of daily living. Although the Veteran asserted that he was unable to work due to symptoms associated with his back, the findings from the October 2004 examination do not support such an assertion. In that regard, the Veteran was able to demonstrate thoracolumbar flexion to 90 degrees and was free of any neurological manifestations. There was no pain or tenderness reported during motion, and as noted above, the Veteran reported that he was able to perform all of his ordinary activities and denied having any periods of incapacitation. These findings are not consistent with the type of marked interference contemplated by an extra-schedular evaluation. The February 2007 VA examination demonstrates that the Veteran had worsened pain symptoms that were also accompanied by other symptoms including fatigue, weakness, stiffness, spasm, atrophy, guarding, lumbar flattening, IVDS, and radiculopathy into his right lower extremity, the Board notes that the Veteran still denied any history of hospitalization or surgery. The examiner noted mild to moderate impairment of the Veteran's activities of daily living, although there was no indication in the report of any findings of occupational impairment. These limitations, viewed in the context of reduced flexion (to 40 degrees, with pain beginning at 10 degrees), strongly suggests a level of disability that was commensurate with a 40 percent evaluation. The Board thus finds that an extra-schedular evaluation of 40 percent was warranted as of February 2007. The February 2012 VA examination, moreover, continued to note progressively worsening symptoms and noted that the Veteran's ability to work was "greatly impacted" by chronic pain and loss of thoracolumbar motion which resulted in the inability to carry, reach, sit, stand, or ambulate for prolonged periods. Objective findings noted during the May 2013 VA examination are essentially consistent with those noted in the February 2012 report, and, concluded that the Veteran remained limited occupationally due to increased pain while lifting, walking, bending, and after prolonged periods of standing. In view of the foregoing, the Board finds that the evidence from the February 2007 and February 2012 VA examination reports reflects that the Veteran's back disability presents marked interference with employment which renders impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). In so determining, the Board is mindful of the Director, Compensation and Pension's negative August 2013 opinion. Nonetheless, the Board notes that the Director's rationale is unclear, and it is also unclear as to whether he considered the opinions expressed in the February 2012 and May 2013 VA examination reports in forming his conclusions. Thus, as the evidence concerning the Veteran's spine disability from February 20, 2007 appears to contradict the Director's negative opinion, the Board finds that the Veteran is entitled to the assignment of an extra-schedular disability rating for low back DJD, effective from February 20, 2007. Subject to the foregoing, the Board concludes that the symptoms, functional loss, and degree of occupational impairment associated with the Veteran's low back disability are commensurate to a spine disability marked by thoracolumbar flexion limited to 30 degrees or unfavorable ankylosis, which are the criteria for a 40 percent disability rating under the General Formula. However, the Board notes that given the extent of thoracolumbar motion which the Veteran continues to demonstrate, the Veteran's disability is not analogous to unfavorable ankylosis of the spine, which is the sole criterion for the next higher rating of 50 percent under the General Formula. Accordingly, the Board awards a 40 percent disability rating and no more, on an extra-schedular basis, for the Veteran's low back injury with DJD, effective from February 20, 2007. As noted above, there is no basis for an extra-schedular evaluation prior to that date. To that extent, this appeal is granted. B. Right Wrist Residuals The Veteran's right wrist disability was initially rated as noncompensable; however, it has been rated as 10 percent disabling since February 20, 2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215. DC 5215 governs disabilities marked by limitation of motion of the wrist. Under this criteria, a 10 percent disability rating is assigned for either the major or minor hand, where disability has been manifested by dorsiflexion to less than 15 degrees or palmar flexion that is limited in line with the forearm. Again, the Board notes that disabilities of the musculoskeletal system, such as the wrist disability under consideration here, are subject to consideration of the various factors outlined in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. In relation to the Veteran's right wrist, the Board notes that the Veteran did not receive regular outpatient or inpatient treatment. During a January 2004 disability examination performed for the Social Security Administration, the Veteran reported decreased grip strength in his right hand, but stated that he was able to compensate by assisting with his right hand. The examination revealed markedly diminished grip strength in his right hand. During an October 2004 VA examination, the Veteran reported soreness while attempting to lift heavy objects and stated that he was unable to lift more than 25 to 30 pounds with his right hand. During a February 2007 VA examination, he demonstrated ulnar deviation to 45 degrees with pain reported throughout motion, radial deviation to 20 degrees without pain, dorsiflexion to 60 degrees with pain beginning at 20 degrees, and palmar flexion to 50 degrees also with pain beginning at 20 degrees. During a repeated VA examination performed in February 2012, the Veteran reported increased weakness during twisting actions or while attempting to carry objects requiring two hands. He stated that his right wrist had occasionally given way and that he also experienced periodic numbness. At that time, the Veteran was able to produce palmar flexion to 80 degrees and dorsiflexion to 70 degrees without any reported pain. Repetitive motion testing of the wrist did not reveal any further loss of motion. Demonstrated muscle strength in the right wrist was full during extension and flexion movements. During a May 2013 VA examination, the Veteran reported ongoing pain after repetitive lifting activities involving weights of 30 to 35 pounds. He also continued to report diminished right hand grip strength. Demonstrated right wrist motion at that time included palmar flexion and dorsiflexion to 70 degrees with pain reported at the ends of motion. Repetitive motion testing was not productive of any further loss of motion. Motor strength testing revealed diminished right wrist strength that was rated as 4/5. Functionally, the examiner noted that the Veteran's function was limited by weakness which interfered with lifting and carrying heavy objects. Based upon the foregoing evidence, the Board finds that the symptoms associated with the Veteran's right wrist disability do not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In that regard, the Board has taken into consideration the fact that the Veteran is right-hand dominant. Nonetheless, the evidence shows that the Veteran has maintained functionality of his right wrist by compensating through the use of his left hand while attempting to lift heavy objects weighing more than 30 pounds. Moreover, given the Veteran's apparent ability to still lift up to 30 pounds and the extent of right wrist motion demonstrated during examinations, the Board is unable to find that the Veteran's right wrist disability has resulted in marked interference with his employment. Accordingly, entitlement to an extra-schedular disability rating for residuals of a right wrist injury is denied for all periods relevant to this appeal. C. Residuals of Right Hip Fracture Throughout the course of the appeal period, the Veteran's service-connected postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis has been rated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, DC 5010. DC 5010 provides that disabilities rated under that criteria must be rated in accordance with the rating criteria for degenerative arthritis under DC 5003. Under DC 5003, arthritis that has been established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Code, a 10 percent rating is to be assigned for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Disabilities of the hip are rated based upon loss of motion under DC 5252. Under that criteria, a 10 percent disability rating is assigned for disabilities marked by thigh flexion limited to 45 degrees. A 20 percent disability rating is appropriate for disabilities marked by thigh flexion limited to 30 degrees. A 30 percent disability rating is appropriate for disabilities manifested by thigh flexion limited to 20 degrees. A 40 percent disability rating is awarded for disabilities marked by thigh flexion limited to 10 degrees. Regarding the Veteran's right hip, the evidence shows that the Veteran has continuously reported pain symptoms with associated limp and loss of mobility. During the Social Security Administration's January 2004 disability evaluation, the Veteran reported right hip pain and stiffness that was worse in cold weather. He also reported difficulty with activities such as driving due to his right hip and that he generally avoided doing so. He stated that on occasions that he did drive, he maintained cruise control of his car so as to allow himself to freely shift his weight and change positions while driving. In that regard, he stated that he was frequently required to sit with his legs crossed to obtain some relief in his hip. Functionally, the Veteran stated that he was able to stand or walk for approximately 45 minutes to an hour. An examination of the right hip revealed that the Veteran was able to produce 45 degrees of inward and outward motion, but that adduction and abduction movements of the right hip were completely absent. During his February 2007 VA examination, the Veteran reported ongoing right hip pain which he described as a five out of 10 in severity. He also reported flare-ups which were manifested by a 40 percent reduction in hip motion and inability to kneel, squat, or climb. The Veteran also reported that his ability to stand and walk were also limited. An examination of the hip revealed that the Veteran was able to produce flexion to 100 degrees with pain beginning at 60 degrees, extension to 20 degrees with pain throughout motion, abduction to 30 degrees with pain beginning at 10 degrees, adduction to 20 degrees with pain beginning at 10 degrees, and internal rotation to 30 degrees with pain beginning at 10 degrees. During a February 2012 examination of his hip, the Veteran complained of persistent right hip soreness and stabbing pain that was present while standing. He also reported flare-ups of hip symptoms which resulted in increased limping, and periods of immobility due to pain and stiffness. Demonstrated right hip motion during this examination included flexion to 110 degrees with pain reported from 90 degrees and the total absence of any right hip extension. The examiner also noted that the veteran's ability to rotate his right hip was limited to the extent that he was unable to turn his toes out to more than 15 degrees. Repetitive motion of the right hip was productive of further loss of 5 degrees of flexion to 105 degrees. During his May 2013 VA examination, the Veteran reported increased right hip pain with flare-ups caused by prolonged walking or standing. Demonstrated right hip motion was essentially unchanged from the prior February 2012 examination, although no further loss of motion was produced by repetitive motion. Other noted objective findings included disturbance of locomotion and interference with sitting, standing, and weightbearing. Muscle strength in the right hip was diminished to 4/5 during flexion, extension, and abduction movements. No evidence of any ankylosis was seen. Functionally, the examiner opined that the Veteran's hip pain did not permit him to drive or work in his ordinary occupations as a truck driver and mechanic due to his inability to stand for prolonged periods. The examiner also noted that constant vibrations during truck driving caused the Veteran hip pain, and for that reason, opined that the Veteran was also unable to return to truck driving. The Board points out that throughout the course of the appeal, the Veteran was able to produce right thigh flexion to no less than 100 degrees, reduced to 105 degrees after repetitive motion, and with pain being reported from 90 degrees. Even taking the Veteran's loss of motion after repetition and his complaints of painful motion into consideration, the Board notes that the demonstrated right hip motion is well in excess of 45 degrees, which is the extent of impaired motion generally contemplated for the assignment of a 10 percent disability rating under DC 5252. Notwithstanding the same, the evidence shows that the Veteran's right hip disability has markedly interfered with the Veteran's employment. Relevant to this point, the Veteran has reported his ordinary occupation as being a mechanic and truck driver, and, during his January 2004 Social Security disability examination he reported that driving was difficulty due to his right hip and that he generally avoided doing so. He elaborated that on occasions that he did drive, he maintained cruise control of his car so as to allow himself to freely shift his weight and change positions while driving. In that regard, he stated that he was frequently required to sit with his legs crossed to obtain some relief in his hip. Indeed, during the May 2013 VA examination, the examiner opined that the Veteran was unable to return to truck driving because the constant vibrations from his truck aggravated the Veteran's hip pain. In view of the foregoing, the Board finds that the Veteran's right hip disability has resulted in marked interference with employment which renders impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). Once again, although the Board is mindful of the Director, Compensation and Pension's negative August 2013 opinion, it finds that the rationale employed by the Director in issuing his negative opinion is unclear. Thus, as the evidence concerning the Veteran's right hip appears to contradict the Director's negative opinion, the Board finds that the Veteran is entitled to the assignment of an extra-schedular disability rating for his right hip disability, effective from January 29, 2004. The symptoms, functional loss, and degree of occupational impairment (namely, inability to drive) associated with the Veteran's right hip disability are commensurate to a disability marked by incapacitating episodes, which are among the criteria for a 20 percent disability rating under DC 5003. However, given the extent of right hip motion shown by the Veteran over the course of the appeal, the Veteran's right hip disability does not comport to a disability marked by loss of thigh flexion to less than 45 degrees. Accordingly, the Board awards a 20 percent disability rating and no more, on an extra-schedular basis, for the Veteran's postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis, effective from January 29, 2004. To that extent, this appeal is granted. D. Right Knee DJD and Instability Over the course of this appeal, the Veteran has been rated based upon loss of right knee flexion pursuant to 38 C.F.R. § 4.71a, DC 5260. In that regard, a 10 percent disability rating was assigned effective from January 29, 2004. A higher 30 percent disability rating was assigned from June 1, 2010. Effective February 23, 2012, the Veteran's right knee DJD was rated as 10 percent disabling. The Board also notes that a separate 10 percent disability rating, based upon right knee instability, was also awarded pursuant to 38 C.F.R. § 4.71a, DC 5257. The instability rating was increased to 20 percent, effective June 1, 2010. Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. A maximum schedular disability rating of 30 percent is assigned where leg flexion is limited to 15 degrees. Under DC 5257, slight recurrent subluxation or lateral instability of the knee warrants a 10 percent rating. A 20 percent rating is awarded where the evidence shows moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation is in order in cases of severe recurrent subluxation or lateral instability. Social Security records show that the Veteran underwent a right knee arthroscopy for a medial meniscal tear in January 2003. Subsequent VA treatment records through October 2004 show that the Veteran continued to report right knee pain and instability. During an October 2004 VA examination, the Veteran ambulated with a cane and wore a brace on his right knee. Subsequent VA treatment records through February 2007 document ongoing complaints of right knee pain. During VA examination of the right knee in February 2007, the Veteran reported ongoing knee pain which he described as a five out of 10 in severity. He also reported instability in the knee. Physical examination of the right knee confirmed the presence of clicking and snapping, grinding, and patellar tenderness; however, there was no evidence of instability. Demonstrated range of right knee motion included full extension to zero degrees and flexion to 120 degrees with pain beginning from 100 degrees. Measured leg lengths were equal bilaterally. X-rays of the right knee revealed mild degenerative arthritis. During subsequent VA treatment, the Veteran continued to report right knee pain and instability. An MRI performed in November 2008 revealed a tear of the posterial horn of the medial meniscus. During follow-up VA treatment in December 2008, the Veteran reported that his knee was giving out once or twice a week and that he was experiencing falls. During the physical examination of his knee, the Veteran demonstrated an altered gait marked by walking with his knee in a straightened position. Demonstrated range of motion of the knee was full when non-weightbearing. Pain was present on patellofemoral compression but was more severe and more localized at the medial joint line, just posterior to the medial collateral ligament. In March 2009, the Veteran underwent an arthroscopic surgery for partial medial meniscectomy. Surgical records and follow-up records indicate that the surgery and recovery process were uneventful and free of complications. In June 2009, the Veteran reported that his right knee was actually pain free and had full range of motion. During a June 2010 VA examination, the Veteran reported that his right knee pain and instability had returned. He also reported weakness and that his knee gave way during weightbearing and while flexed to 30 degrees. He reported that he suffered falls three times per week and that he was unable to kneel, squat, or climb. He also reported flare-ups which occurred weekly, lasted for periods of up to one to two days, and were caused by prolonged periods of standing. Functionally, he stated that he was able to stand for periods of one to three hours but was able to walk distances of only a few yards. During physical examination, the Veteran ambulated with an antalgic gait. Crepitation, grinding, and medial/lateral instability were noted, as well as tenderness, weakness, and guarding of movement. Demonstrated range of motion included flexion to 100 degrees and loss of 20 degrees of extension. Repetitive motion was productive of pain, however, did not result in any further change in motion. No evidence of ankylosis was seen. X-rays of the right knee were grossly normal except for mild patella superior spurring. Occupationally, the Veteran reported that he was retired due to age-based eligibility and years of service. The examiner noted that the Veteran was limited in occupational tasks which include problems with lifting or carrying, decreased strength, and pain which resulted in increased tardiness and absenteeism from work. Concerning activities of daily living, the examiner opined that the Veteran was moderately impaired from chores, shopping, exercise, traveling, bathing, dressing, toileting, grooming, and driving; and severely impaired from participating in sports. During a February 2012 VA examination of his knee, the Veteran rated his right knee pain as a seven out of 10 in severity, with frequent giving way, and altered gait. He continued to report flare-ups of symptoms caused by prolonged standing and ambulating. During that examination, the Veteran was able to produce right knee flexion to 110 degrees with pain being reported from 100 degrees. Extension was full to zero degrees and without any evidence of hyperextension. Repetitive motion of the right knee was productive of an additional loss of 5 degrees of extension to 105 degrees, but was not productive of any loss of extension. Physical examination of the knee did reveal positive objective findings of weakness, medial/lateral instability of five to 10 centimeters, disturbance of locomotion, and interference with sitting, standing, and weightbearing. Tenderness was also elicited in the right knee upon palpation. The Veteran was noted as ambulating with the regular use of a cane and occasional use of a walker. X-rays of the right knee were interpreted as being free of any evidence of degenerative or traumatic arthritis, patellar subluxation, or other significant objective findings. Overall, the examiner opined that the Veteran's right knee pain symptoms caused him difficulty with carrying, weightbearing, ambulating, and standing, which in turn, affected the Veteran's active employment. During VA examination of his right knee in May 2013, the Veteran continued to report chronic right knee pain and instability, as well as flare-ups which caused him to walk with a worsened limp. Demonstrated right knee motion included flexion to 110 degrees with pain being reported from 90 degrees and full flexion to zero degrees. No hyperextension of the knee was noted. Again, repetitive motion of the right knee resulted in an additional loss of 5 degrees of flexion to 105 degrees. Other objectively noted symptoms were grossly similar to those noted in the previous examination, but also included findings of weakness to 4/5. X-rays of the right knee continued to show degenerative changes. Overall, the examiner opined that the Veteran's function was limited by difficulty with prolonged standing, walking, and lifting. Overall, the evidence shows that, for all periods relevant to this appeal, the Veteran's right knee DJD and instability were manifested by pain and patellar tenderness, clicking, crepitus, diminished right knee flexion to no less than 100 degrees, loss of up to 20 degrees of right knee extension, and medial/lateral instability ranging from five to 10 centimeters. These symptoms resulted in loss of function including inability to stand or walk for long periods, kneel, squat, or climb, as well as moderate restriction of most activities of daily living (with severe restriction of participating in sports). In view of the foregoing, the Board finds that the symptoms associated with the Veteran's right knee DJD and instability do not present, for any period relevant to this appeal, an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In that regard, the Board has taken into consideration the functional limitations noted above; nonetheless, given the extent of the demonstrated right knee motion and the Veteran's ongoing ability (albeit moderately limited) to maintain his activities of daily living, the Board does not find that the evidence shows that the Veteran's knee DJD and instability have resulted in marked interference of his employment. Similarly, the Board acknowledges that the Veteran has undergone meniscectomy surgeries in 2003 and 2009, but notes that otherwise, has not required inpatient treatment or hospitalization for treatment of his right knee disabilities. Accordingly, entitlement to an extra-schedular evaluation for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain and right knee instability is denied, as the evidence does not show an unusual or exceptional disability pattern that renders the application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). II. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's claims of entitlement to extra-schedular disability ratings for a low back injury with degenerative joint disease (DJD); residuals of a right wrist injury; postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis; status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain; and instability of the status -post meniscectomy of the right knee, the Board notes that these issues arises from the initial grant of service connection for each of those disabilities. In a February 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence were needed to substantiate his claims for service connection for right wrist, low back, right leg (secondary to broken hip) and right knee disabilities, as well as information as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The Veteran's claims for service connection were subsequently adjudicated for the first time in a December 2004 rating decision. Subsequently, an April 2013 letter notified the Veteran as to the process by which disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. This letter also provided the Veteran with information as to the information and evidence necessary for substantiating his claims of entitlement to extra-schedular disability ratings specifically, and the respective responsibilities of the Veteran and VA in obtaining that information and evidence. After issuance of the April 2013 letter, and opportunity for the Veteran to respond, the Veteran's claims for extra-schedular disability ratings were subsequently readjudicated in an August 2013 Supplemental Statement of the Case. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Subject to the foregoing, the Board also notes that, in Dingess, the Court also determined that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has not only been substantiated, but proven. Thus, in such instances, section 5103(a) notice was no longer required because the purpose that the notice is intended to serve has already been served. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (stating that section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify the Veteran in connection with his claims for extra-schedular disability ratings has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, claims submissions, lay statements, identified and relevant private treatment records, VA treatment records, and social security records have been associated with the record. The Veteran was also afforded VA examinations for his back, right wrist, right hip, and right knee in October 2004, February 2007, June 2010, February 2012, and May 2013. Pursuant to the Board's April 2013 remand, the matter was also referred to the Director, Compensation and Pension for consideration of the Veteran's entitlement to extra-schedular disability ratings. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the nature, etiology, and severity of the disabilities adjudicated herein. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER Entitlement to an extra-schedular disability rating in excess of 10 percent for a low back injury with DJD, prior to February 20, 2007, is denied. Entitlement to an extra-schedular initial disability rating of 40 percent for a low back injury with DJD is granted, from February 20, 2007, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an extra-schedular compensable initial disability rating for residuals of a right wrist injury, prior to February 20, 2007, is denied. Entitlement to an extra-schedular disability rating in excess of 10 percent for residuals of a right wrist injury, from February 20, 2007, is denied. Entitlement to an extra-schedular initial disability rating of 20 percent for postoperative residuals of a right hip fracture with open reduction and internal fixation and with degenerative arthritis is granted, from January 29, 2004, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an extra-schedular initial disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, prior to June 1, 2010, is denied. Entitlement to an extra-schedular disability rating in excess of 30 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, from June 1, 2010 through February 22, 2012, is denied. Entitlement to an extra-schedular disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, beginning February 23, 2012, is denied. Entitlement to an extra-schedular initial disability rating in excess of 10 percent for status-post meniscectomy of the right knee with degenerative joint disease with limitation of motion due to chronic strain, prior to June 1, 2010, is denied. Entitlement to an extra-schedular disability rating in excess of 20 percent for instability of the right knee, status-post meniscectomy of the right knee with DJD and limitation of motion due to chronic strain, from June 1, 2010, is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs