Citation Nr: 1452575 Decision Date: 11/28/14 Archive Date: 12/02/14 DOCKET NO. 11-23 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, prior to January 3, 2014, and in excess of 40 percent as of that date. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee. 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, prior to March 24, 2014 when a temporary total rating was assigned, and in excess of 10 percent from May 1, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In a May 2014 rating decision, the disability rating for the low back was increased to 40 percent effective January 3, 2014. In addition, the RO granted entitlement to a temporary total rating for surgical treatment of the left knee necessitating convalescence dating from March 14, 2014 until May 1, 2014, at which time the prior 10 percent rating was assigned. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status for each issue. The issue of entitlement to an increased rating for the left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 3, 2014, the Veteran's low back was not manifested by forward flexion of the thoracolumbar spine of greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine of not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; he did not have neurological manifestations such as sciatic, loss of bladder control or loss of bowel control; and he did not have incapacitating episodes. 2. As of January 3, 2014, the Veteran's low back was manifested by limitation of flexion to 30 degrees due to pain, but he did not have ankylosis of the spine. 3. As of January 3, 2013, both the right and the left lower extremities exhibited mild sciatica due to his low back disability. 4. The Veteran's degenerative arthritis of the right knee results in painful/limited flexion, but not to 30 degrees or more or the functional equivalent. 5. The Veteran's degenerative arthritis of the right knee results in painful/limited extension, but not to 15 degrees or more or the functional equivalent thereof. 6. The Veteran's degenerative arthritis of the right knee resulted in symptomatic removal of semilunar cartilage productive of residual symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to January 3, 2014 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5237 (2013). 2. The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine from January 3, 2014 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5237 (2013). 3. As of January 3, 2014, the criteria for a separate 10 percent rating, but no more, for impairment of the right sciatic nerve are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2013). 4. As of January 3, 2014, the criteria for a separate 10 percent rating, but no more, for impairment of the left sciatic nerve are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2013). 5. The criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee based on painful/limited flexion, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5260 (2013). 6. The criteria for a separate 10 percent rating, but no more, for degenerative arthritis of the right knee based on painful/limited extension, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5261 (2013). 7. The criteria for a separate 10 percent rating, but no more, for degenerative arthritis of the right knee based on symptomatic removal of the semilunar cartilage, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5258 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in December 2009 and August 2010 letters prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board recognizes that the representative believes that the Veteran should be afforded another VA examination as he did not perform repetitive testing on examination so the provisions of 38 U.S.C.A. § 4.40 were not followed. However, the Board observes that the Veteran was unable to perform this testing and there is no suggestion that he became able to do so. The examiner considered the pertinent provisions and indicated on the examinations at which point pain limited motion. As such, the examinations are adequate and the records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Low Back Under the General Rating Formula as applicable to the Veteran's back disability, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees or combined range of motion of thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3) states that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors note the result of the disease or injury of the spine, the range of motion of the spine in 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) indicates that each range of motion measurement should be rounded to the nearest 5. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of the limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except whether there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the criteria governing disabilities of the lumbar spine, intervertebral disc syndrome is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This formula provides a rating of 20 percent for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2010). An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Note (1). The Veteran was assigned a 10 percent rating prior to January 3, 2014, and a 40 percent rating as of that date. In conjunction with his appeal, the Veteran was examined in December 2010 and then on January 3, 2014. On the December 2010 examination, with consideration of pain and DeLuca factors and after repetitive motion, the Veteran was able to flex his spine to 80 degrees with pain at that point (thus flexion motion was greater than 60 degrees even with pain considered), extend to 30 degrees with pain at that point, and also exhibited left and right lateral rotation and flexion all to 30 degrees with pain at that point. Ankylosis was not present. The Veteran had a normal gait with no abnormal spinal curvatures. There was no muscle spasm. The Veteran did not exhibit sciatica of the lower extremities or any neurological impairment, such as loss of bowel or bladder control. There was no suggestion of incapacitating episodes per the rating criteria. As such, a rating higher than 10 percent was not warranted. However, the Board finds that the subsequent examination established sciatica of the lower extremities, which each warrant separate ratings. On the January 2014 examination, the examiner indicated that the Veteran exhibited flexion to 30 degrees, at which point pain was present; extension was to zero degrees with pain also present at that time; right and left lateral flexion was to 25 degrees with pain present at that point; and right and left lateral rotation was to 15 degrees with pain present at that point. As noted above, the Veteran could not complete repetitive testing due to pain, so further functional impairment was not indicated. However, that being noted, since the rating criteria is based on limitation of motion, the examiner provided information in that regard, indicating that pain limited flexion (the rating criteria) to 30 degrees, and also indicated that there was no ankylosis. The Veteran is able to move his spine as shown on examination and by his admission. Thus, the Veteran does not have favorable ankylosis of the entire thoracolumbar spine. Thus, the Veteran met the criteria for a 40 percent rating, but not higher, due to the lack of ankylosis. However, the examiner also indicated that the Veteran had mild sciatica down his extremities, productive of mild impairment. With respect to neurologic manifestations, Diagnostic Code 8520 addresses the sciatic nerve. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. The Board finds that a 10 percent rating for sciatic nerve impairment of the right and of the left lower extremities, respectively, is warranted. A higher rating is not warranted since the examiner specified that the impairment on each side was mild in degree and not moderate or worse. The Veteran did not exhibit any additional neurological dysfunction such as bowel or bladder impairment. Therefore, separate ratings for such impairments are not warranted. In addition, the examiner indicated that the Veteran did not have incapacitating episodes as described in the rating criteria. Thus, a higher rating on that basis is not warranted. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for the low back disability prior to January 3, 2014, and in excess of 40 percent as of that date, but the evidence supports separate 10 percent ratings for associated neurological impairment of the right and left lower extremities, respectively, as of January 3, 2014. Right Knee Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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 is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), Diagnostic Code 5003. Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71, Plate II, shows that normal flexion and extension of the knee is from zero degrees to 140 degrees. It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation/instability or under Diagnostic Code 5258-9 for cartilage impairment. Essentially, these opinions suggest that separate compensable ratings may be assigned when reported limitation of knee motion shown is compensable or when there is X-ray evidence of arthritis together with a finding of painful motion. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words 'slight,' 'moderate,' and 'severe' as used in this code are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for 'equitable and just decisions.' 38 C.F.R. § 4.6. In considering the applicability of other diagnostic codes that may also be separately rated, the Board notes that Diagnostic Codes 5258-9, which concerns injury to cartilage of the knee. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The General Counsel has suggested in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve symptomatology caused by tears and displacements of the menisci that may be rated separately from symptoms caused by arthritis. A review of the record shows that the Veteran has osteoarthritis of the right knee and has undergone steroid injections for pain relief. June 2009 x-rays show that the Veteran had minimal marginal spurring along the superior articulating surface of the patella. The right medial and lateral compartments were unremarkable. In December 2010, the Veteran was afforded a VA examination. At that time, it was noted that the Veteran was able to walk a quarter of a mile and his gait was normal. He exhibited crepitus, tenderness, clicks and snaps, patellar abnormality (tenderness) and guarding of movement. His range of motion was zero to 127 degrees and there was pain with repetitive motion. However, there was no additional loss of motion/limitations. Thereafter, the Veteran continued to receive knee injections for pain. In January 2014, the Veteran was reexamined. His right knee range of motion was limited to 10 (extension) to 85 (flexion) degrees due to pain. There was no additional functional impairment due to repetitive testing. All stability testing was normal and there was no subluxation. The Veteran's history of a prior meniscal tear was noted. It was noted that he underwent a meniscectomy which was still productive of residual pain on walking. Subsequent private medical records noted that the Veteran had undergone injections for pain relief and still had pain, locking of the knees, and crepitation. A magnetic resonance imaging revealed degenerative changes of the medial meniscus as well as patellar chondromalacia and attenuated femoral articular cartilage with areas of cartilage defects. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5260 based on painful/limited flexion. A higher rating is not warranted because the Veteran does not exhibit flexion limited to 30 degrees or the functional equivalent. However, the Veteran has also consistently exhibited painful extension. On the earlier examination, there was no loss of motion and on the later examination, there was loss of motion to 10 degrees. See Diagnostic Code 5261. However, on both examinations, there was painful motion. Painful motion warrants a compensable 10 degree rating, separate from the already assigned rating for painful/limited flexion See 38 C.F.R. § 4.59; VAOPGCPREC 9-98. However, a higher rating is not warranted because at no time was extension limited to limited to 15 degrees. There has not been any instability or subluxation, so a separate rating under Diagnostic Code 5257 is not warranted. However, since the VA examiner indicated that semilunar cartilage was removed and remains symptomatic, a separate 10 percent rating is warranted under Diagnostic Code 5259. See VAOPGCPREC 9-98. Although the current symptoms include pain, which is already considered and compensated under other diagnostic codes, the Veteran also has joint locking and joint effusion as well as tenderness due to patellar abnormality. In considering all of the symptoms, the right knee is adequately collectively compensated as indicated under all three diagnostic codes. In sum, during the entire appeal period, the preponderance of the evidence of against a rating in excess of 10 percent for the right knee disability based on impairment of flexion, but a separate 10 percent rating is warranted for painful extension as well as a separate 10 percent rating for symptomatic removal of the semilunar cartilage. Extraschedular consideration In considering the claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's low back and right knee disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disabilities. There have not been frequent periods of hospitalization or marked interference with employment due to these disabilities. The Veteran explained that his job involves physical activities which are difficult and also that he is unable to tolerate extended periods of sitting or standing. However, while some interference with occupational duties is expected given the nature of the Veteran's impairment, the evidence does not show frequent work absences, or a significant impact on the Veteran's ability to perform his job duties beyond that contemplated by the current disability evaluations. As noted above, the rating schedule contemplates greater impairment of the low back and knees should the evidence demonstrate worsening symptomatology which at this time it does not. Therefore, referral for consideration of an extraschedular rating is not warranted. (Continued on the next page) ORDER Prior to January 3, 2014, a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. From January 3, 2014, a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. From January 3, 2014, a separate 10 percent rating for impairment of the right lower extremity sciatic nerve is granted, subject to the law and regulations governing the payment of monetary benefits. From January 3, 2014, a separate 10 percent rating for impairment of the left lower extremity sciatic nerve is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for degenerative arthritis of the right knee based on painful/limited flexion, is denied. A separate 10 percent rating for degenerative arthritis of the right knee based on painful/limited extension is granted, subject to the law and regulations governing the payment of monetary benefits. A separate 10 percent rating for degenerative arthritis of the right knee based on symptomatic removal of the semilunar cartilage is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Left Knee The Veteran underwent left knee surgery in March 2014, but has not been afforded a VA examination since that time to assess the level of severity of his left knee. Thus, he should be examined. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the purpose of determining the nature and extent of the Veteran's service-connected left knee disability. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed. Any indicated tests, including x-rays if indicated, should be accomplished. The examiner should perform range of motion and state the Veteran's range on flexion and extension and if he has pain on either movement. The examiner should indicate if the Veteran has recurrent subluxation or instability and, if so, if it is slight, moderate or severe. The examiner should also, in accordance with DeLuca, supra, indicate whether the service-connected left knee disability is productive of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion or additional functional loss. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact must be so stated. The examiner should indicate if the Veteran had a dislocated semilunar cartilage, and, if so, if he also has frequent episodes of locking, pain, and effusion in the joint. The examiner should indicate if the Veteran has ankylosis of the left knee. The complete examination findings, along with the complete rationale for all opinions expressed, should be clearly set forth in the examination report. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs