Citation Nr: 1340528 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-19 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain, rated as 20 percent disabling prior to January 25, 2011, 100 percent disabling (temporary total rating) from January 25, 2011 to April 1, 2011, and 40 percent disabling thereafter. 2. Entitlement to a rating in excess of 10 percent for right knee chondromalacia. 3. Entitlement to a rating in excess of 10 percent for left knee chondromalacia. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran has active service from September 1998 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. During the course of the appeal, the Veteran underwent surgery for his low back on January 25, 2011. In a March 2011 rating decision, the agency of original jurisdiction (AOJ) awarded a temporary total evaluation of 100 percent from January 25, 2011 to April 1, 2011, based on surgery necessitating convalescence pursuant to 38 C.F.R. § 4.30 (2013). As the Veteran was receiving the maximum rating possible for his low back disability during this period, the Board need not consider whether a higher rating is warranted during this time period. By rating decision in April 2011, the AOJ increased the Veteran's disability rating for his low back disability to 40 percent, effective April 1, 2011, the date after his 100 percent temporary total rating based on convalescence following surgery ended. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue therefore remains in appellate status and is characterized as shown on the first page of this decision. Relevant to the TDIU claim, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the record reflects that the Veteran is unemployed and has alleged that his service-connected disabilities on appeal have negatively impacted his employability. Therefore, the Board has jurisdiction over such issue and it has been included on the title page of this decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. With the exception of an October 2013 brief submitted by the Veteran's representative, a review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Prior to January 25, 2011, the Veteran's service-connected lumbosacral strain was manifested by some limitation on motion and abnormal spinal contour; but without forward flexion limited to 30 degrees or less, ankylosis, incapacitating episodes of at least four weeks over the past 12 months, or associated neurological abnormalities. 2. From January 25, 2011 to April 1, 2011, the Veteran was in receipt of a temporary total 100 percent evaluation based on surgical treatment necessitating convalescence. 3. From April 1, 2011, the Veteran's service-connected lumbosacral strain is manifested by limitations equivalent to range of motion findings of 30 degrees flexion or less, but without ankylosis, incapacitating episodes of at least six weeks over the past 12 months, or associated neurologic abnormalities. 4. For the entire appeal period, the Veteran's service-connected right knee chondromalacia is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination, fatigue, or other symptoms so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, or recurrent subluxation or instability, ankylosis, dislocation or removal of semilunar cartialge, impairment of the tibia or fibula, or genu recurvatum. 5. For the entire appeal period, the Veteran's service-connected left knee chondromalacia is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination, fatigue, or other symptoms so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, or recurrent subluxation or instability, ankylosis, dislocation or removal of semilunar cartialge, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. Prior to January 25, 2011, the criteria for a disability evaluation in excess of 20 percent for the Veteran's service-connected lumbosacral strain had not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2013). 2. From April 1, 2011, the criteria for a disability evaluation in excess of 40 percent for the Veteran's service-connected lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2013). 3. For the entire appeal period, the criteria for entitlement to a disability evaluation in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5014-5260 (2013). 4. For the entire appeal period, the criteria for entitlement to a disability evaluation in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5014-5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in March 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate his increased rating claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and VA examination reports. A review of Virtual VA claims processing system does not reveal any additional records pertinent to the Veteran's claims. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, the Veteran was afforded VA examinations in March 2009, July 2009 and March 2011 to evaluate the severity of his service-connected low back and bilateral knee disabilities. The Board finds that the VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent March 2011 evaluations. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). As will be discussed herein, the Veteran's back and bilateral knee disabilities are evaluated based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Lumbosacral Strain The Veteran is seeking an increased rating for his service-connected lumbosacral strain. The Board must determine whether a rating in excess of 20 percent is warranted prior to January 25, 2011, and whether a rating in excess of 40 percent is warranted from April 1, 2011. As noted above, the Veteran was awarded a maximum 100 percent rating for the period from January 25, 2011 to April 1, 2011. Under the General Rating formula for Diseases and Injuries of the Spine, ratings contemplate symptoms such as pain (whether or not it radiates), stiffness, or aching and are assigned as follows: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine 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; a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran filed his current claim for an increased rating in November 2008. He was afforded a VA examination in March 2009. Although his claims file was not available for review, the examiner took a thorough medical history from the Veteran. The Veteran reported constant low back pain, which he graded at a 7/10 with occasional increase to 10/10. The pain increased and decreased, but the Veteran was not certain what produced the changes. He treated the pain with stretching and medication. There was no history of numbness or tingling in the legs. The Veteran also reported that there was no history of bowel or bladder incontinence. He did report occasional pain on urination. He also treated his symptoms by going for walks. On physical examination, the Veteran had prominent lumbar lordosis. The spine was in balance and he was able to walk on heels and toes. There was no limp. Forward bending was not testable as the Veteran would bend only to approximately 10 degrees and then declined to bend further. Lateral bending was 30 degrees bilaterally. Extension was to 40 degrees. Rotation was to 35 degrees bilaterally. Spine flexion on subsequent examination was to 80 degrees. Motor power was 5/5. Sensation was intact to touch over both extremities. Straight leg raising was to 70 degrees bilaterally and associated with hamstring tightness. A contemporaneous x-ray showed bilateral L5 pars defects without spondylolisthesis. The impression was bilateral L5 pars defect. The examiner also observed that there were inconsistent findings related to the spine as symptoms were not explained by findings. A follow up examination by the same examiner was done in July 2009 as the previous examination was insufficient in that it failed to address passive and active range of motion as well as functional loss on repetition. At this examination, the spine was erect. Range of motion findings were 80 degrees flexion, 30 degrees extension, 35 degrees right and left lateral bending, and 45 degrees right and left rotation. There was pain in the lower lumbar region at the limits of flexion. There was no additional limitation due to pain, fatigue, weakness or lack of endurance following three repetitions. The Veteran was able to walk on heels and toes. VA treatment records have also been reviewed. In pertinent part, a March 2009 record showed that the Veteran had normal gait, 5/5 muscle strength in the lower extremities, and 2+ DTR in the patellar and Achilles. However, in April 2009, the Veteran reported increasing back pain with pain radiating to his leg. There were no bowel or bladder issues. On examination, extremities were symmetrical in motion and strength. He was neurologically intact. There was no point tenderness on the back. The only restriction observed was to 30 degrees on the right side. A September 2009 record showed that the Veteran presented to physical therapy for low back pain. Follow up treatment records continued to show treatment for his low back pain. Another record in September 2009 observed that his backache was stable, but he was evaluated and fitted for a back support. On January 25, 2011, the Veteran underwent a lumbar fusion. The operation report noted a 10 year history of low back pain, radiating into the right leg. The Veteran underwent a right minimally invasive L5-S1 transforaminal lumbar interbody fusion. The Veteran underwent another VA examination in March 2011. The claims file was reviewed. The Veteran indicated that pain was better following fusion surgery, and he could sleep better through the night, but back still hurt. He reported severe daily flare-ups that lasted minutes to hours. Precipitating factors were certain activities, but rest and pain medication helped relieve symptoms. The Veteran reported 95 percent additional limitation of motion during flare-up. Although nocturia was reported, there was no history of urinary incontinence or fecal incontinence. There was also no numbness, paresthesias, leg or foot weakness, falls or unsteadiness. The Veteran did indicate that he experienced fatigue, decreased motion, stiffness, weakness, muscle spasm and pain. The pain was located in the center of the back and was present constantly. The pain was described as aching and moderate, but there was no radiation. No incapacitating episodes were reported. The Veteran used an orthotic insert and was unable to walk more than a few yards. On physical examination, posture, head position and gait were all normal. There was no abnormal spinal contour or ankylosis. Guarding and pain with motion were observed, but there was no spasm, atrophy, guarding tenderness or weakness. There was no spasm, tenderness or guarding severe enough to result in abnormal gait or spinal contour. Range of motion was 18 degrees flexion, 0 degrees extension, 10 degrees left lateral flexion, 12 degrees right lateral flexion, and 20 degrees left and right lateral rotation. There was additional evidence of pain following repetitive motion, but not additional limitation. Reflex, sensory and motor examinations were normal. Lasegue's sign was positive. A contemporaneous x-ray showed post surgical changes consistent with interval lumbosacral fusion L5-S1 with stable alignment lumbar spine, no instability, stable minimal retrolisthesis of L1 on L2. It was observed that the Veteran was a mechanic, but was currently not employed due to medical reasons. The diagnosis was residuals, status post lumbosacral spinal fusion. The Veteran reported that he quit his job due to this condition. He experienced decreased mobility and problems with lifting and carrying as well as pain. The examiner noted that the condition prevented all physical activity. Prior to January 25, 2011 The Board finds that, when applying the General Rating Formula to the Veteran's low back disability, the evidence does not warrant a rating in excess of 20 percent prior to January 25, 2011. There has been no objective findings of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating. The most restrictive range of motion found was 80 degrees flexion documented at the July 2009 VA examination. Although the Veteran would only bend to 10 degrees flexion at the March 2009 VA examination, it was not due to any actual limitation, but rather the Veteran's refusal to bend further at that time. Again, on subsequent testing, the Veteran was able to flex to 80 degrees. The Veteran has reported chronic low back pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the 20 percent. At the July 2009 VA examination, pain was only elicited at the limits of flexion during range of motion testing. Moreover, no additional restrictions were found following repetitive use. In sum, there is no evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 20 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion. Further, consideration has been given as to whether a higher disability evaluation could be assigned under Diagnostic Code 5243 for intervertebral disc syndrome. There has been no evidence showing that the Veteran has been prescribed bed rest due to incapacitating episodes having a total of at least four weeks during the past 12 months to warrant a 40 percent rating for intervertebral disc syndrome. In this regard, VA examinations and VA treatment records are silent with respect to any findings of physician prescribed bedrest during this period. Moreover, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability during this period. Although the Veteran reported radiating pain to his right leg in April 2009, on examination, he was neurologically intact with normal strength in the lower extremities on examination. Additionally, as noted in the General Rating Formula, such evaluations contemplates pain (whether or not it radiates). Moreover, the March 2009 VA examination and follow up treatment records also documented no history of bowel or bladder incontinence. Thus, the Board finds that a separate rating is not warranted for any other neurological symptoms and the Veteran's manifested symptoms associated with his low back disability are adequately contemplated in the current 20 percent rating. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether any additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that his symptomatology has been stable prior to January 25, 2011, 2011. Therefore, assigning staged ratings for such disability during this period is not warranted. In conclusion, after reviewing the overall record, a rating in excess of 20 percent for the Veteran's service-connected low back disability prior to January 25, 2011 is not warranted. As a preponderance of the evidence is against a rating in excess of 20 percent during this period, benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). From April 1, 2011 After considering the evidence of record, the Board also must find that a rating in excess of 40 percent is not warranted at any time from April 1, 2011. Since the Veteran has been granted the maximum rating possible under limitation of motion for the lumbar spine during this period, a further analysis under DeLuca, supra, would not result in a higher schedular rating. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (functional factors are not for consideration where, as in this case, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis). The evidence does not include any reports of ankylosis of the lumbar spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).) The most recent March 2011 VA examination clearly found no evidence of ankylosis. On all examinations, there has been significant remaining motion and the Veteran has not reported any periods when his spine was fixed in position. Hence, a higher rating is not warranted under the general rating formula for back disabilities. A higher rating is also not warranted under the criteria for invertebral disc syndrome as there has been no evidence of incapacitating episodes totaling at least six weeks during a 12 month period. The March 2011 examination clearly indicated that there had been no incapacitating episodes in the last 12 months. The record does not otherwise report any periods of physician prescribed bed rest. Moreover, the Veteran and his representative have not specifically identified any treatment records that show incapacitation requiring physician prescribed bed rest for this duration of time. With respect to neurologic abnormalities pursuant to Note (1) of the General Rating Formula, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability so as to warrant a separate compensable rating. At the March 2011 VA examination, reflexes, motor and sensory examinations were all normal. The Veteran expressly denied any numbness, paresthesias or leg weakness. Further, although nocturia was reported, the Veteran also expressly denied bowel or bladder incontinence. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran's current symptoms are adequately contemplated under the assigned 40 percent disability rating. Again, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his low back disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether any additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that his symptomatology has been stable since April 1, 2011. Therefore, assigning staged ratings for such disability is not warranted. In sum. after reviewing the overall record, the Board finds that a rating in excess of 40 percent rating is not warranted for the Veteran's service-connected lumbosacral strain from April 1, 2011. As the preponderance of the evidence is against a rating in excess of 40 percent, and the benefit-of-the-doubt doctrine does not otherwise apply. See 38 U.S.C.A. § 5107(b). Chondromalacia of the Right and Left Knees The Veteran's service-connected left and right knee disabilities have been assigned separate 10 percent ratings under Diagnostic Codes 5014-5260 for osteomalacia and limitation of flexion. Diseases under this diagnostic code are rated based on limitation of motion of the affected part, as degenerative arthritis under Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, 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. 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, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71 , Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a , Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a , Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a , Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a , Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). The March 2009 VA examination evaluated the Veteran's bilateral knee disabilities. The Veteran reported daily pain that involved the whole knee bilaterally. There was no history of swelling. The pain was constant at an intensity of 3 out of 10 that increased to 10 out of 10 every few seconds. On physical examination, the knees showed no warmth, erythema or effusion. There was no anteroposterior or varus valgus laxity. McMurray's sign was negative bilaterally. Knee motion was from full extension to 120 degrees flexion bilaterally. Both patellae were tipped slightly laterally. Patellar tracking was otherwise normal by palpation under load and without load. X-rays were normal. The impression was mild patellar tilt, otherwise unremarkable knees. The examiner noted that there were inconsistent examination findings related to the knees and symptoms were not explained by findings. At the follow up July 2009 examination, knees were in full extension in stance. He was able to walk on his heels and toes. Essentially the same physical findings were observed as at the previous examination, except the examiner noted that active and passive motions were equal. Following three repetitions, there were no additional limitations by pain, fatigue, weakness or lack of endurance. The March 2011 VA examination also addressed the severity of the Veteran's knee disabilities. The Veteran reported that his knees became painful due to his back condition. While pain and stiffness were reported, there was no giving way, instability, weakness, incoordination, dislocation or subluxation, locking episodes or deformity. There was decreased speed of joint motion as well as swelling. The Veteran reported weekly severe flare-ups that lasted one to two days. Weather changes and walking precipitated flare-ups and rest and pain medications helped alleviate them. The Veteran indicated that he experienced 95 percent additional limitation during flare-ups. He again reported that he was unable to stand for more than a few minutes or walk more than a few yards. He used an orthotic insert. On physical examination, it was noted that his gait was antalgic. Although abnormal movement and guarding of movement were noted in both knees, there were no findings of crepitations, grinding, instability, patellar abnormality, meniscus abnormality, abnormal tendons or bursae, or any other knee abnormalities. There were no bumps consistent with Osgood-Schllater's disease or masses behind the knees. Range of motion was normal extension to 68 degrees flexion on the left and normal extension to 32 degrees flexion on the right. There was objective evidence of pain on active motion on both sides. There was also objective evidence of pain following repetition; however, there were no additional limitations after three repetitions. There was also no joint ankylosis. A contemporaneous x-ray showed not acute fracture, subluxation or joint effusion. Joints spaces were maintained and bony mineralization was normal. It was noted that the Veteran was unemployed due to medical reasons. The diagnoses were right and left knee chondromalacia. The Veteran had quit his job due to the conditions because of decreased mobility, problems with lifting and carrying and pain. His knees prevented him from chores, shopping, sports, recreation, travel, dressing and grooming. There were severe affects on bathing and toileting, but no affects on feeding. VA treatment records have been reviewed, but do not address the severity of the Veteran's bilateral knee disability for rating purposes. After reviewing the evidence of record, the Board finds that ratings in excess of 10 percent for the Veteran's right and left knee disabilities are not warranted. Even considering additional functional loss due to pain, there is no evidence that flexion is limited to 30 degrees or extension is limited to 15 degrees so as to warrant assignment of a higher rating under Diagnostic Codes 5260 or 5261. Extension has always been normal and, even though flexion was limited at the March 2011 VA examination, it was not found to be limited to 30 degrees in either knee. The Veteran has reported chronic right and left knee pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the current 10 percent. Although the Veteran reported 95 percent additional limitation during flare-ups at the March 2011 VA examination, the examiner found that there was no additional restricted range of motion, or functional impairment following repetitive use. The Board finds that as the Veteran's report of 95 percent additional limitation is simply based on a speculative lay observation as opposed to actual range of motion testing, the findings of the March 2011 VA examiner are more probative as they were based on clinical findings by a medical professional. Moreover, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, ratings in excess of 10 percent are not warranted based on limitation of motion. Moreover, a separate rating under Diagnostic Code 5257 would not be appropriate as there has been no objective medical finding of recurrent subluxation or lateral instability of either knee. The Veteran has not reported any episodes of instability and VA examinations documented that the Veteran's ligaments were intact and testing for instability was negative. Additionally, as the evidence of record fails to demonstrate ankylosis, dislocation or removal of semilunar cartialge, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. Again, the Board acknowledges that the Veteran, in advancing this appeal, believes that his knee disabilities have been more severe than the assigned disability ratings reflect. In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether any additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected right and left knee disabilities; however, the Board finds that his symptomatology has been stable and not met the criteria for a higher rating throughout the course of the appeal. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, the preponderance of the evidence in this case is against a finding that the criteria for ratings in excess of the current 10 percent ratings assigned have been met under any applicable Diagnostic Codes for the Veteran's service-connected left and right knee disabilities. As the preponderance of the evidence weighs against the claim for an increased rating, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Extraschedular Consideration Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability and right and left knee disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. In this regard, the Veteran's 20 and 40 percent ratings, respectively, contemplate the functional limitations caused by his low back disability for each period on appeal. Moreover, the current 10 percent ratings for the knees also reflect the Veteran's pain, restricted motion and functional limitations, including problems standing and walking. In sum, the Veteran's symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the back, knee and leg provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, 5256, 5260, 5261 (providing ratings on the basis of ankylosis and limited flexion and extension). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. In this regard, there is nothing exceptional or unusual about the Veteran's low back, right knee and left knee disabilities because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER An increased rating for lumbosacral strain, rated as 20 percent disabling prior to January 25, 2011, and 40 percent disabling from April 1, 2011, is denied. A rating in excess of 10 percent for right knee chondromalacia is denied. A rating in excess of 10 percent for left knee chondromalacia is denied. REMAND As indicated in the Introduction, the issue of entitlement to a TDIU is considered part and parcel of the Veteran's increased rating claims on appeal. See Rice, supra. In this regard, at the March 2009 VA examination, the Veteran reported that he worked as an auto mechanic until January 2009, but had been unemployed since that time. Moreover, in his May 2010 substantive appeal, the Veteran indicated that he could no longer work due to the pain from his back and knee disabilities. The March 2011 VA examination also noted that the Veteran had quit his job due to his knees and back disabilities. In light of the Court's decision in Rice, and given that the Veteran has indicated that he is unemployable due to his service-connected disabilities, the AOJ should proceed with the appropriate development of this issue, to include furnishing to the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU, sending an appropriate VCAA notice, and conducting any necessary development. Further, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, as in the instant case, for those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), but are unemployable due to service connected disabilities, rating boards should submit such cases to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). As such, the AOJ should also consider whether the criteria for submission of the Veteran's claim to the Director, Compensation and Pension Service for extraschedular consideration have been met. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU and provide VCAA notice explaining what is needed to support a claim for a TDIU due to his service-connected disabilities, to include on an extra-schedular basis. 2. Undertake any development deemed warranted, to include obtaining any necessary VA examinations and/or opinions and determining whether the criteria for extra-schedular TDIU consideration, pursuant to 38 C.F.R. § 4.16(b) have been met. Thereafter, the AOJ should issue the Veteran and his representative a supplemental statement of the case which provides him with citation to the applicable law and regulations pertaining to entitlement to a TDIU, to include on an extraschedular basis. The Veteran and his representative should be afforded the appropriate opportunity to respond to the supplemental statement of the case. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs