Citation Nr: 1336223 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-21 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating greater than 20 percent disabling for degenerative arthritis, thoracolumbar spine. 2. Entitlement to an initial rating greater than 10 percent disabling for degenerative arthritis, cervical spine. 3. Entitlement to an initial rating greater than 10 percent disabling for right elbow degenerative arthritis. 4. Entitlement to an initial rating greater than 10 percent disabling for left elbow degenerative arthritis. 5. Entitlement to an initial rating greater than 10 percent disabling for right knee degenerative arthritis. 6. Entitlement to an initial rating greater than 10 percent disabling for left knee degenerative arthritis. 7. Entitlement to an initial rating greater than 10 percent disabling for right ankle degenerative arthritis. 8. Entitlement to an initial rating greater than 10 percent disabling for left ankle degenerative arthritis. 9. Entitlement to an initial compensable rating for residual scar, status post appendectomy. 10. Entitlement to an initial compensable rating for pulmonary granuloma. 11. Entitlement to an initial compensable rating for status post right tibial stress fracture residuals. 12. Entitlement to an initial compensable rating for right calf strain. 13. Entitlement to an initial compensable rating for left calf strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to December 2007, including combat service in Iraq and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction rests with the RO in Montgomery, Alabama, from which the appeal was certified. A Board hearing was scheduled for November 2011, but the Veteran did not report for it. As no explanation of that absence or request for a rescheduled hearing has been received by VA, the Board finds that the hearing request is withdrawn. The Veteran reported at the September 2009 VA spine examination that he worked as a teacher and had lost no time from work in the last 12 months. Thus, the record does not raise a claim for total disability rating for compensation based on individual unemployability (TDIU), and no referral for consideration of a TDIU rating is required. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran's degenerative arthritis, thoracolumbar spine is manifested by lumbar spine flexion no less than 60 degrees, combined thoracolumbar spine range of motion no less than 240 degrees, and no ankylosis or functional loss beyond that contemplated by the currently assigned rating. 2. The Veteran's degenerative arthritis, cervical spine is manifested by cervical spine flexion no less than 40 degrees, combined cervical spine range of motion no less than 260 degrees, and no ankylosis or functional loss beyond that contemplated by the currently assigned rating. 3. Prior to June 10, 2009, the Veteran's right elbow degenerative arthritis was manifested by no greater than 0 degrees of extension, with no objective evidence of ankylosis or functional loss beyond that contemplated by the currently assigned rating. 4. From June 10, 2009, to September 20, 2009, the Veteran's right elbow degenerative arthritis was manifested by no greater than 75 degrees of extension, with no objective evidence of ankylosis or functional loss beyond that contemplated by the currently assigned rating.. 5. Beginning September 21, 2009, the Veteran's right elbow degenerative arthritis was manifested by no greater than 30 degrees of extension, with no objective evidence of ankylosis or functional loss beyond that contemplated by the currently assigned rating.. 6. The Veteran's left elbow degenerative arthritis was manifested by no greater than 75 degrees of extension, with no objective evidence of ankylosis or functional loss beyond that contemplated by the currently assigned rating. 7. The Veteran's right knee degenerative arthritis is manifested by flexion no less than 115 degrees and the preponderance of the evidence shows that the disability is not productive of instability, ankylosis, or functional loss beyond that contemplated by the currently assigned rating. 8. The Veteran's left knee degenerative arthritis is manifested by flexion no less than 140 degrees and the preponderance of the evidence shows that the disability is not productive of instability, ankylosis, or functional loss beyond that contemplated by the currently assigned rating. 9. The Veteran's right ankle degenerative arthritis is manifested by no more than moderate limited motion, and no objective evidence of functional loss beyond that contemplated by the currently assigned rating. 10. The Veteran's left ankle degenerative arthritis is manifested by no more than moderate limited motion, and no objective evidence of functional loss beyond that contemplated by the currently assigned rating. 11. The Veteran's residual scar, status post appendectomy measures less than six square inches, does not result in limitation of function, and is not unstable, deep, or painful on examination. 12. The Veteran's pulmonary granuloma is not manifested by venous congestion or edema, chest wall abnormalities, asthma, weight loss or malnutrition, or abnormal respiratory findings. 13. The Veteran's status post right tibial stress fracture is not manifested by active residuals; the Veteran has denied tibial pain, flare-ups, or functional impairment and X-rays show only a healed fracture. 14. The Veteran's right calf strain is manifested by no more than a slight muscle disability. 15. The Veteran's left calf strain is manifested by no more than a slight muscle disability. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating for degenerative arthritis, thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). 2. The criteria for an increased initial rating for degenerative arthritis, cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). 3. The criteria for greater than a 10 percent rating for right elbow degenerative arthritis prior to June 10, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5207-5003 (2013). 4. The criteria for a 20 percent rating for right elbow degenerative arthritis, but no greater, for the period June 10, 2009, to September 20, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5207-5003 (2013). 5. The criteria for a 20 percent rating for right elbow degenerative arthritis beginning September 20, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5207-5003 (2013). 6. The criteria for an increased initial rating for left elbow degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5207-5003 (2013). 7. The criteria for an increased initial rating for right knee degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5260-5003 (2013). 8. The criteria for an increased initial rating for left knee degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5260-5003 (2013). 9. The criteria for an increased initial rating for right ankle degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271-5003 (2013). 10. The criteria for an increased initial rating for left ankle degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271-5003 (2013). 11. The criteria for an initial compensable rating for residual scar, status post appendectomy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). 12. The criteria for an initial compensable rating for pulmonary granuloma have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6820 (2013). 13. The criteria for an initial compensable rating for status post right tibial stress fracture have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). 14. The criteria for an initial compensable rating for right calf strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2013). 15. The criteria for an initial compensable rating for left calf strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Prior to his discharge from service in December 2007, VA sent the Veteran a letter in May 2007 as part of the Benefits Delivery at Discharge (BDD) program. That letter satisfied VA's duty to notify, to include informing him of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran acknowledged receipt of the BDD notice in May 2007. The Veteran's service treatment records and military facility records have been obtained; the Veteran has not identified any private or VA treatment records pertinent to his appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Fee-based examinations were conducted in July 2007, prior to the Veteran's separation from service; VA also conducted examinations in September 2009. Both of these sets of examinations evaluated the nature, extent and severity of his service-connected disabilities, by conducting complete physical examinations, recording the Veteran's subjective complaints, and offering opinions as appropriate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Significantly, neither the Veteran nor his local or national representatives have indicated that any of the Veteran's service-connected conditions have worsened since the September 2009 VA examinations were conducted. For that reason, a remand is not required solely due to the passage of time since the September 2009 VA examinations. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine The Veteran's lumbar spine disability is rated as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 warrants a 20 percent rating. 38 C.F.R. § 4.71a, General Rating Formula (2013). Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Id. The evidence of record does not support greater than a 20 percent rating for the Veteran's lumbar spine disability based on the General Rating Formula. Forward flexion of the lumbar spine was to 90 degrees, with a combined range of motion of 240 degrees at the July 2007 examination; flexion was to 60 degrees, with a combined range of motion of 210 degrees at the September 2009 examination. At the October 2010 VA examination, flexion was to 70 degrees, and the total lumbosacral range of motion was to 250 degrees. Neither examination report indicated that the Veteran's lumbar spine was ankylosed, defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed., 2003). Muscle spasms were noted not to be present at the July 2007 examination; at the September 2009 examination, muscle spasms of the lumbar spine that were present were noted to occur but not result in an abnormal gait or spinal contour. Thus, as favorable or unfavorable ankylosis of any part of the spine is not shown, a schedular rating greater than 20 percent based on the General Rating Formula is not warranted. Functional loss greater than that already contemplated by the 20 percent rating is also not established by the record. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although there is evidence that the Veteran experiences pain on range of motion testing of the lumbar spine, neither the July 2007 examiner nor the July 2009 examiner found that there was additional limitation of motion due to functional loss following repetitive motion testing. See id. ; see also 38 C.F.R. § 4.71a, General Rating Formula. As the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 beyond that contemplated in the rating assigned, greater than a 20 percent rating on the basis of functional loss is not warranted. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). But the evidence of record also does not establish entitlement to a separate rating for associated neurological abnormalities. The July 2007 examination report noted that sensory, motor and reflex testing were all within normal limits, and lower extremity neurologic impairment was neither reported nor found on clinical examination; the Veteran denied having bladder, bowel, or erectile dysfunction or impairment. Although he reported back pain radiating into his bilateral calves at the September 2009 examination, nerve conduction studies at that time showed normal bilateral lower extremity functioning; an electromyelogram showed no electrophysiological evidence of lumbar radiculopathy or generalized peripheral neuropathy. The provisions of 38 C.F.R. § 4.71a indicate that intervertebral disc syndrome should be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. However, the Veteran has not asserted, and the record does not reflect, that he has had any incapacitating episodes requiring bed rest prescribed by a physician as a result of his lumbar spine disability. Specifically, the July 2007 examiner indicated there were no signs of intervertebral disc syndrome, and the September 2009 examiner stated that there had been no intervertebral disc syndrome episodes. Therefore, greater than a 20 percent rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine The Veteran's cervical spine disability is rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). Diagnostic Code 5242 is subsumed into the General Rating Formula, which assigns a 10 percent rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of more of the height. 38 C.F.R. § 4.71a, General Rating Formula (2013). Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a combined range of motion not greater than 170 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 warrants a 20 percent rating. Id. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating and unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating. Id. The evidence does not support greater than a 10 percent rating for the Veteran's cervical spine disability. At the July 2007 fee-based examination, the Veteran reported neck stiffness and neck pain three times per week, without functional impairment or radiating pain. Forward flexion was to 45 degrees, and total cervical spine range of motion was 260 degrees. The examiner noted that on physical examination, there was no ankylosis, spasm, guarding, kyphosis, or postural abnormalities, and no localized tenderness. Similarly, at the September 2009 VA examination, the Veteran reported moderate aching pain, but no radiculopathy, flare-ups, or functional impairment. Forward flexion of the cervical spine was to 40 degrees; total cervical spine range of motion was to 280 degrees. The examiner noted on physical examination that there were normal motor, sensory, and reflex clinical findings, and no muscle atrophy. With forward flexion of the cervical spine being greater than 30 degrees, combined cervical range of motion greater than 170 degrees, and no evidence of ankylosis, muscle spasm, guarding, or abnormal spinal contour, a rating greater than 10 percent is also not warranted under the General Rating Formula. No neurologic abnormalities were noted at the November 2010 or December 2011 fee-based VA examinations, to include bladder or bowel dysfunction. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). At both the July 2007 fee-based and September 2009 VA examinations, sensory, motor, and reflex testing on physical examination was fully normal. Thus, the Board finds that no neurologic abnormalities related to the Veteran's cervical spine were shown during the appeal period, such that a separate rating is warranted. The record also does not establish that the Veteran's cervical spine disability disorder results in a degree of functional loss beyond that contemplated by the assigned rating. DeLuca, 8 Vet. App. 204-5; 38 C.F.R. §§ 4.40, 4.45, 4.59. While both the July 2007 fee-based and September 2009 VA examiners recorded objective evidence of pain on motion during range of motion testing, both examiners indicated that there was no additional limitation of motion or other functional loss resulting from the Veteran's pain and stiffness, such that a higher rating is merited under the General Rating Formula. See id.; see also 38 C.F.R. § 4.71a, General Rating Formula. While those hallmark symptoms of functional loss documented in the record are duly recognized, the evidence does not reflect functional loss beyond that contemplated in the currently assigned ratings. Accordingly, greater than a 10 percent rating for the Veteran's cervical spine disability is not warranted on the basis of functional loss. A magnetic resonant imaging test (MRI) taken at the September 2009 VA examination showed that the Veteran had degenerative disc disease at C3 to C6. Thus, consideration must be given to whether a higher disability rating is warranted under the Formula for Rating Intervertebral Disc Syndrome. The provisions of 38 C.F.R. § 4.71a indicate that intervertebral disc syndrome should be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The decision above has continued the 10 percent rating assigned under the General Rating Formula, and determined that no separate rating was warranted for neurologic impairment. Thus, the combined rating is 10 percent disabling. 38 C.F.R. § 4.25 (2013). However, the Veteran has not asserted, and the record does not reflect, that he has had any incapacitating episodes requiring bed rest prescribed by a physician as a result of his cervical spine disability. Therefore, greater than a 10 percent rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Elbows The July 2007 rating decision assigned 10 percent ratings for the Veteran's right elbow disability and for his left elbow disability under the provisions of 38 C.F.R. § 4.71a , Diagnostic Code 5207. Under Diagnostic Code 5207, a 10 percent rating is warranted when extension of either the major or the minor elbow is limited to 60 degrees; a 20 percent rating is warranted when extension is limited to 75 degrees for the major elbow and 90 degrees for the minor elbow; a 30 percent rating is warranted when extension is limited to 90 degrees for the major elbow and 100 degrees for the minor elbow; a 40 percent rating is warranted when extension is limited to 100 degrees for the major elbow and 110 degrees for the minor elbow, and a 50 percent rating is warranted when extension is limited to 110 degrees for the major elbow. 38 C.F.R. § 4.71a, Diagnostic Code 5207. The record reflects that the Veteran is right handed, thus making his right arm his major extremity. As to the left elbow, the evidence does not support greater than a 10 percent rating at any time during the appeal period. At the July 2007 fee-based examination, extension of the left elbow was to 0 degrees; at a June 2009 military treatment facility visit, maximum extension of the left elbow was to 75 degrees; at the September 2009 VA examination, extension of the left elbow was to 15 degrees. With respect to the right elbow, the evidence of record during the appeal period warrants staged ratings. Hart, 21 Vet. App. at 507-08. Prior to June 10, 2009, the record reflects that extension of the right elbow was to 0 degrees. However, the June 2009 military treatment facility evaluation found that maximum extension of the right elbow was to 75 degrees; this warrants a 20 percent rating. Further, at the September 2009 VA examination, extension of the right elbow was to 30 degrees. Accordingly, while greater than a 10 percent rating for either elbow is not warranted under Diagnostic Code 5207 prior to June 10, 2009, or beginning September 21, 2009, a 20 percent rating is warranted for the period June 10, 2009, to September 20, 2009. The record also does not establish that either of the Veteran's elbow disabilities results in a degree of functional loss beyond that contemplated by the assigned ratings. DeLuca, 8 Vet. App. 204-5; 38 C.F.R. §§ 4.40, 4.45, 4.59. While the July 2007 fee-based and September 2009 VA examiners noted that there was objective evidence of painful motion during range of motion testing, it was also noted that there was no additional limitation of motion after repetitive testing on either side. Similarly, while the September 2009 VA examiner noted the veteran's reports of moderate aching, stiffness, and sharp pain with movement, and documented evidence of crepitus, tenderness, abnormal motion, and guarding bilaterally on physical examination, that examiner did not indicate that functional loss resulted from these symptoms. Accordingly, higher ratings for either elbow are not warranted based on functional loss. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and increased ratings beyond those assigned by this decision are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Knees The Veteran's right knee and left knee disabilities are each rated as 10 percent disabling under the provisions of Diagnostic Code 5260-5003. Diagnostic Code 5260 contemplates limitation of flexion of the leg, and provides for 10, 20, and 30 percent ratings when flexion of the leg is limited to 45 degrees, 30 degrees, and 15 degrees, respectively. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The evidence does not support greater than a 10 percent rating for either knee at any time during the appeal period under Diagnostic Code 5260. At the July 2007 fee-based examination, flexion of each knee was to 140 degrees; at the September 2009 VA examination, flexion of the right knee was to 140 degrees and flexion of the left knee was to 115 degrees. While the June 2009 military treatment facility record noted limited range of motion, no enumerated findings are documented. Accordingly, greater than a 10 percent rating for either knee under Diagnostic Code 5260 is not warranted. Other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 5261 provides for 10, 20, 30, 40, and 50 percent ratings when extension of the leg is limited to 10, 15, 20, 30, and 45 degrees, respectively. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. However, as extension of the knees was to 0 degrees at the July 2007 fee-based examination and the September 2009 VA examination, neither an increased nor a separate rating is warranted based on limitation of extension of either knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also VAOGCPREC 9-2004, 69 Fed. Reg. 59,990 (Sept. 17, 2004). The July 2007 fee-based and September 2009 VA examination reports also noted no ankylosis of either knee, and the record does not show dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum of either knee; the June 2009 reference to a closed dislocation does not suggest an injury to the cartilage, only the knee bone itself. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263 (2013). Further, instability or subluxation of either knee is also not objectively shown. Although the Veteran reported giving way at the July 2007 fee-based examination and the September 2009 VA examination, he denied experiencing instability at the latter examination, stability tests were noted to be normal at the July 2007 fee-based examination, and instability was not objectively found at the September 2009 VA examination. Because there is no objectively demonstrated instability of either knee, an increased or separate evaluation is not for assignment. See id.; see also VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997). Whether the Veteran's knee disabilities resulted in a level of functional loss greater than that already contemplated by the assigned ratings for any part of the appeal period has also been considered. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45, 4.59. The June 2009 military treatment facility record noted that the Veteran had tenderness with range of motion testing of the bilateral knees, but neither the July 2007 or September 2009 examination reports indicated an increased level of limited motion after repetitive testing. Similarly, while functional impairment in terms of difficulty marching and walking was noted at the July 2007 fee-based examination (as the Veteran was still on active duty at that time), the September 2009 report indicates the Veteran's statement that he experienced no flare-ups or functional loss. Further, the rating schedule is intended to allow for compensation for painful motion of a joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, the evidence does not reflect functional loss that is not already contemplated by the assigned ratings and greater than a 10 percent rating is not warranted for either knee on the basis of functional loss. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Ankles The Veteran's bilateral ankle arthritis disabilities are each rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271. Diagnostic Code 5271 assigns 10 and 20 percent ratings when there is moderate or marked limitation of motion of the ankle, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle includes dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II (2013). Range of motion testing during the appeal period does not reflect limited motion of the ankle that is more than moderate. Dorsiflexion was noted to be normal at the July 2007 fee-based and September 2009 VA examinations, measured as being 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Accordingly, a rating greater than 10 percent is not warranted under Diagnostic Code 5271. Other potentially applicable diagnostic codes have also been considered. Schafrath, 1 Vet. App. at 595. As the objective medical evidence of record does not reflect ankylosis of the ankle, astragalectomy, malunion of the os calcis or astragalus, or ankylosis of the subastragalar or tarsal joint, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2013). Moreover, X-rays taken at the fee-based and VA examinations showed tibial spurs and small to moderate anterior talar beaks, but did not establish nonunion or malunion of the tibia and fibula resulting in a marked ankle disability. Accordingly, increased ratings are not warranted based on alternate diagnostic codes. Consideration has also been given to whether additional functional loss exists that is not contemplated in currently assigned ratings. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. However, while the Veteran reported functional impairment in the forms of walking at running at the July 2007 fee-based examination, the examiner noted that there was no objective evidence of functional loss due to incoordination, fatigue, or other factors. The Veteran also denied experiencing any functional loss or flare-ups at the September 2009 VA examination. The clinical findings do not reflect that the pain and stiffness reported by the Veteran at both examinations resulted in additional limitation of motion after repetition during range of motion testing. As the record does not establish additional functional loss not contemplated by the currently assigned rating, increased ratings on the basis of functional loss are not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and increased ratings are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Appendectomy Scar During the pendency of the Veteran's appeal, the criteria for rating the skin was amended, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2013)). Where the rating criteria are amended during the course of an appeal for an increased evaluation, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. However, because the amended regulations with respect to scars are only applicable to claims received on or after October 23, 2008, the Veteran's claim was received in May 2007, and the Veteran has not requested consideration under the revised regulations, the regulations as amended are not applicable. The Veteran's appendectomy scar is noncompensably rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7802. Prior to the regulatory amendments, Diagnostic Code 7802 contemplated scars other than on the head, face, or neck, that are superficial and that do not cause limited motion, and assigned a single 10 percent rating for a scar with an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2013). The July 2007 fee-based examination report noted that the scar measured 9 centimeters by 1 centimeter, and was thus less than 6 square inches. At the September 2009 VA examination, the examiner noted on physical examination that the scar measured 0.5 inches by 7.5 inches. As the scar measures less than 144 square inches, a compensable rating is not warranted under the pre-revision Diagnostic Code 7802. Consideration has also been given to whether the Veteran's appendectomy scar would warrant a compensable rating under alternate diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 7800 is not for application as it contemplated scars on the head, face or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). Diagnostic Code 7801 contemplated scars that are deep or cause limited motion; as noted above, at the July 2007 fee-based and September 2009 VA examinations, the scar was not found to be deep, and no limited motion was shown to result from the scar. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Diagnostic Codes 7803 and 7804 are also not for application as they contemplate superficial scars which are unstable or painful on examination. While the Veteran reported at the September 2009 VA examination that he had occasional pain in the scar area, physical examination of the scar found that it was not painful on examination. The July 2007 fee-based examination and a June 2009 military treatment facility record also noted no abnormal clinical findings of the scar. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (2008). Finally, Diagnostic Code 7805 is not for application as it contemplates scars that result in limitation of function of the affected part; the July 2007 fee-based and September 2009 VA examinations reports as well as the June 2009 military treatment facility record do not reflect that the Veteran's appendectomy scar results in limitation of function, including the Veteran's report at the July 2007 fee-based examination that he experienced no functional impairment as a result of the scar. Accordingly, a compensable rating is not warranted after considering alternative diagnostic codes. The preponderance of the evidence is against the assignment of a compensable rating for the Veteran's appendectomy scar. There is no doubt to be resolved, and a compensable rating must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Pulmonary Granuloma The Veteran's service-connected for residual, excision of granuloma from superior segment, right lower lobe is rated under Diagnostic Code 6820, which contemplates benign neoplasms of the respiratory system, and is rated using an appropriate respiratory Diagnostic Code. 38 C.F.R. § 4.97, Diagnostic Code 6820. While it appears that service connection for pulmonary granuloma was granted based on the July 2007 fee-based examination's finding of bilateral perihilar markings with granulomata, the evidence does not reflect clinical findings showing any active residuals. The military treatment facility records associated with the claims file do not reflect treatment or clinical findings pertaining to pulmonary granuloma. At the September 2009 VA examination, the Veteran reported being unsure of whether he had a pulmonary granuloma condition, and reported no hospitalization, pneumothorax, or respiratory symptoms. Similarly, on physical examination, the examiner found no venous congestion or edema, chest wall abnormalities, asthma, weight loss or malnutrition, or abnormal respiratory findings; on that basis, pulmonary function tests were no conducted, and the diagnosis was negative for pulmonary granuloma. On this basis, a compensable rating for pulmonary granuloma is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Tibial Stress Fracture The Veteran's right leg status post tibial stress fracture residuals are evaluated under the provisions of 38 C.F.R. §4.71a, Diagnostic Code 5262, which assigns a 10 percent rating for malunion of the tibia and fibula of a leg warrants when it results in slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Malunion that results in moderate knee or ankle disability warrants a 20 percent rating; malunion that results in a marked knee or ankle disability warrants a 30 percent rating and nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. Id. The evidence does not reflect that the Veteran's tibial stress fracture residuals warrant a compensable rating. X-rays of the Veteran's right leg taken at the July 2007 fee-based examination were normal; X-rays taken at the September 2009 VA examination showed a healed cortical stress fracture of the distal right tibia, but no actual malunion or nonunion of the tibial bone. Similarly, the Veteran reported no flare-ups, functional impairment, or residual tibial pain at the September 2009 VA examination, and the examiner found no residuals existed. Accordingly, a compensable rating for right tibial stress fracture is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Calf Strain The Veteran's right calf strain and left calf strain are each assigned noncompensable initial ratings under the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5311. Diagnostic Code 5311 pertains to Muscle Group XI which includes the posterior and lateral crural muscles, and muscles of the calf: (1) triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris. The function of Group XI muscles is propulsion, plantar flexion of foot (1); stabilization of arch (2, 3); flexion of toes (4, 5); and flexion of knee (6). 38 C.F.R. § 4.73, Diagnostic Code 5311. It assigns 0, 10, 20, and 30 percent ratings when the Muscle Group XI disability is slight, moderate, moderately severe, and severe, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5311. A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection. The service department record would show a superficial wound with brief treatment and return to duty. There would be healing with good functional results. There are no cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c). Objectively, there would be a minimal scar, with no evidence of fascia defect, atrophy, or impaired tonus. There would be no impairment of function, or metallic fragments retained in muscle tissue. A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record (or other evidence) would show in service treatment for the wound. There would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, the entrance (and if present, exit) scars would be small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance, or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side would be present. When determining the severity of musculoskeletal disabilities such as the ones at issue, which is at least partly rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when his symptoms flare up, such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, the evidence does not support a compensable rating for either the right or the left calf strain. At the July 2007 fee-based examination, the Veteran reported bilateral leg pain, and functional impairment when marching and running. At the September 2009 VA examination, the Veteran reported mild to moderate calf pain after walking and standing, but no other muscle symptoms; physical examination showed no muscle wounds and no scars. Bilateral calf strain was diagnosed at both examinations. Thus, while pain was reported to result after prolonged activity, the Veteran did not indicate that this resulted in fatigue of the muscle or other functional impairment. Similarly, the absence of a scar or muscle damage both as reported by the Veteran and as noted on physical examination tend to suggest no greater than a slight muscle disability. On this basis, a compensable rating for either the right or left calf strain disabilities is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities, in terms of considering ranges of motion, muscle dysfunction, bone injury residuals, functional impairment, spasms, spinal and postural abnormalities, joint dysfunction, and skin abnormalities; each of these manifestations that are contemplated in the respective rating criteria applicable to the disability or disabilities in question. The rating criteria are therefore adequate to evaluate the Veteran's service-connected disabilities and referral for consideration of extraschedular rating is not warranted. ORDER An initial rating greater than 20 percent disabling for degenerative arthritis, thoracolumbar spine is denied. An initial rating greater than 10 percent disabling for degenerative arthritis, cervical spine is denied. Greater than 10 percent rating for right elbow degenerative arthritis prior to June 10, 2009, is denied. A 20 percent rating, but no greater, for right elbow degenerative arthritis for the period June 10, 2009, to September 20, 2009, is granted, subject to the applicable regulations concerning the payment of monetary benefits. Greater than 10 percent disabling for right elbow degenerative arthritis beginning September 21, 2009, is denied. An initial rating greater than 10 percent disabling for left elbow degenerative arthritis is denied. An initial rating greater than 10 percent disabling for right knee degenerative arthritis is denied. An initial rating greater than 10 percent disabling for left knee degenerative arthritis is denied. An initial rating greater than 10 percent disabling for right ankle degenerative arthritis is denied. An initial rating greater than 10 percent disabling for left ankle degenerative arthritis is denied. An initial compensable rating for residual scar, status post appendectomy is denied. An initial compensable rating for pulmonary granuloma is denied. An initial compensable rating for status post right tibial stress fracture residuals is denied. An initial compensable rating for right calf strain is denied. An initial compensable rating for left calf strain is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs