Citation Nr: 1601082 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 11-08 993 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial (compensable) disability rating (or evaluation) for left knee patella femoral syndrome (hereinafter "left knee disability"). 2. Entitlement to an initial (compensable) disability rating (or evaluation) for right knee patella femoral syndrome (hereinafter "right knee disability"). 3. Entitlement to an initial (compensable) disability rating (or evaluation) for a low back strain disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 2004 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the RO in St. Petersburg, Florida, which, in pertinent part, granted service connection for a bilateral knee disability with a 0 percent (i.e., non-compensable) initial rating, for each knee, effective July 28, 2008 (the day following discharge from active service), and granted service connection for a low back strain disability with a 0 percent (i.e., non-compensable) initial rating effective July 28, 2008. Although in a February 2010 notice of disagreement (NOD) the Veteran indicated general disagreement with all issues adjudicated in the June 2009 rating decision, in the March 2011 substantive appeal (on a VA Form 9), the Veteran specifically limited the appeal to the issues stated above. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. For the entire initial rating period on appeal from July 28, 2008, the bilateral knee disabilities have been manifested by symptoms of painful motion, swelling, weakened movement, flare-ups, interference with standing and weight-bearing, and use of pain medication, that are productive of noncompensable limitation of motion. 2. For the entire initial rating period on appeal from July 28, 2008, the bilateral knee disabilities have not been manifested by limitation of flexion to 30 degrees or limitation of extension to 15 degrees including on the basis of functional loss due to pain, fatigability, or incoordination, instability, dislocation of the semilunar cartilage with frequent episodes of joint "locking," pain, and effusion, malunion or nonunion of the tibia and fibula, or genu recurvatum. 3. For the entire initial rating period on appeal from July 28, 2008, the service-connected low back strain disability has been manifested by objective evidence of painful motion, stiffness, and muscle spasms. 4. For the entire initial rating period on appeal from July 28, 2008, the service-connected low back strain disability has not been manifested by forward flexion less than 60 degrees, or combined range of motion less than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 10 percent, but no higher, for left knee patella femoral syndrome have been met for the entire rating period on appeal, from July 28, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5003 (2015). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 10 percent, but no higher, for right knee patella femoral syndrome have been met for the entire rating period on appeal, from July 28, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5003 (2015). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 10 percent, but no higher, for a low back strain disability have been met for the entire rating period on appeal, from July 28, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the Board has found that the bilateral knee and low back strain rating issues on appeal arise from the Veteran's disagreement with the initial ratings following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A § 5103(a) notice is no longer required); 38 C.F.R. § 3159(b)(2) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, the Veteran received a VA examination in May 2009. The VA examination report is of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report reflects that the VA examiner reviewed the record, conducted an in-person examination, and rendered the requested opinions. All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Initial Rating for Left and Right Knee Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 (2015). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2015). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2015). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is in receipt of zero percent initial disability ratings, for the entire rating period on appeal, for the service-connected left and right knee disabilities under 38 C.F.R. § 4.71a., Diagnostic Codes 5010-5003 and 5260. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 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 rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., Diagnostic Code 5003, Notes (1) and (2). The Diagnostic Codes that rate on the basis of limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Throughout the course of this appeal, the Veteran has contended that the service-connected left and right knee disabilities have been manifested by more severe symptoms than contemplated by the zero percent disability ratings assigned. See November 2015 Appellant's Brief. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal from July 28, 2008, the criteria for a disability rating of 10 percent, but no higher, have been met for the service-connected left and right knee disabilities as the Veteran's bilateral knee disabilities have been manifested by symptoms of painful motion, swelling, weakened movement, flare-ups, interference with standing and weight-bearing, and use of pain medication. The Board also finds the service-connected left and right knee disabilities have not been manifested by limitation of flexion to 30 degrees or limitation of extension to 15 degrees including on the basis of functional loss due to pain, fatigability, or incoordination, instability, dislocation of the semilunar cartilage with frequent episodes of joint "locking," pain, and effusion, malunion or nonunion of the tibia and fibula, or genu recurvatum. The May 2009 VA examination report reflects the bilateral knee disabilities manifested as painful motion, swelling, and flare-ups. VA treatment records from November 2008 and April 2009 note the Veteran reported chronic bilateral knee pain. In May 2009, the Veteran underwent a VA examination for the service-connected left and right knee disabilities. At the May 2009 examination, the Veteran reported intermittent bilateral knee pain aggravated by walking and sitting. The Veteran reported experiencing weekly, severe flare-ups lasting hours, and treating pain symptoms with pain medication. The Veteran also reported bilateral weakness, swelling, and instability due to pain "at which time he [the Veteran] avoids putting any weight on the knees." The Veteran did not report stiffness, instability, incoordination, locking episodes, or effusion. Upon physical examination in May 2009, the Veteran's gait was noted as normal. The VA examiner also noted no bilateral crepitus or instability. The May 2009 VA examination report reflects an assessment of moderate effects on chores, shopping, recreation, travelling, and driving, and severe effects on exercise and sports. Range of motion testing reflected left knee flexion to 110 degrees, right knee flexion to 130 degrees, and bilateral extension to 0 degrees, all without painful motion. A May 2010 VA magnetic resonance imaging (MRI) report reflects impressions of bilateral patellar tendons, and no evidence of meniscal tears or ligamentous injuries. Findings from the May 2009 VA examination are consistent with 10 percent ratings under Diagnostic Code 5003 for the symptoms and level of impairment actually demonstrated by the bilateral knee disabilities. As detailed above, the evidence shows that the bilateral knee disabilities have been manifested by noncompensable limitation of motion, painful motion, swelling, weakness, flare-ups, and use of pain medication. Resolving reasonable doubt in favor of the Veteran, for the entire rating period on appeal, the Board finds that initial ratings of 10 percent, but no higher, for each of the bilateral knee disabilities under Diagnostic Code 5003 for arthritis that is productive of painful, but noncompensable limitation of motion, are warranted. 38 C.F.R. §§ 4.3, 4.7. The Board also finds that the weight of the lay and medical evidence demonstrates that the criteria for disability ratings in excess of 10 percent have not been met or more nearly approximated for any period. For the entire initial rating period on appeal from July 28, 2008, the bilateral knee disabilities have not been manifested by limitation of flexion to 30 degrees or limitation of extension to 15 degrees including on the basis of functional loss due to pain, fatigability, or incoordination, instability, dislocation of the semilunar cartilage with frequent episodes of joint "locking," pain, and effusion, malunion or nonunion of the tibia and fibula, or genu recurvatum. As discussed above, at the May 2009 VA examination, the Veteran was noted to have normal range of extension and, at worst, flexion to 110 degrees, which is far greater than 30 degrees. The evidence of record also does not demonstrate any episodes of joint "locking" or effusion. The Board has considered the Veteran's assertion of flare-ups of pain, and the fact that at the May 2009 VA examination left knee flexion was to 110 degrees and right knee flexion was to 130 degrees. The Board acknowledges that this is 80 degrees better than limited range of flexion warranting a 20 percent rating (30 degrees or less), and because the evidence reflects that the Veteran was having a flare-up when the 110 degrees of flexion was recorded, the Board does not find that additional flare-ups would limit the Veteran's flexion to 30 degrees or less. The Board has considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca. Here, there is no question that the Veteran's bilateral knee disabilities have caused pain, flare-ups, and weakness, which has restricted overall motion; however, as noted above, even taking into account the additional functional limitation due to pain, the Veteran's service-connected left and right knee disabilities do not more nearly approximate limitation of flexion or extension for the 20 percent rating. As discussed above, at the May 2009 VA examination, range of motion testing reflected, at worst, knee flexion limited to 110 degrees and bilateral extension to 0 degrees during a flare-up; therefore, the degree of functional impairment does not warrant a higher initial rating based on limitation of motion. The Board also finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee for any part of the initial rating period. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). As the lay and medical evidence does not show ankylosis, the Board finds that Diagnostic Code 5256 does not apply. There is no evidence that the Veteran underwent a knee replacement of either knee joint; therefore, Diagnostic Code 5055 is inapplicable. 38 C.F.R. § 4.71a. The Board also finds that a separate disability rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the left or right knee is not warranted for any part of the initial rating period. Upon physical examination at the May 2009 VA examination, joint stability tests were normal bilaterally. Further, a functional instability due to pain, as noted by the May 2009 VA examiner, is a different symptom than actual knee instability and more closely resembles weakness in the knee rather than actual instability. See Dorland's Illustrated Medical Dictionary 958 (31st ed. 2007) (defining instability as a "lack of steadiness or stability" and functional instability as the "inability of a joint to maintain support during use"). In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. See also 38 C.F.R. § 4.14. To rate the symptoms of knee weakness as symptoms of both arthritis (causing limitation of motion) and as instability (analogizing the weakness and giving way to instability) would result in rating the same symptoms under different diagnostic codes and compensating the Veteran twice for the same symptoms. As such, the Board finds that a separate rating for instability of the left or right knee under Diagnostic Code 5257 is not warranted for any part of the appeal period. 38 C.F.R. § 4.71a. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. While, as noted above, the Veteran's bilateral knee disabilities have been manifested by painful motion, swelling, and weakness, the evidence of record does not support a finding that the Veteran has dislocation of the semilunar cartilage of either knee. Rather, the May 2010 VA MRI report noted no evidence of meniscal tears or ligamentous injury. The May 2009 VA examiner also noted no meniscus abnormalities associated with either knee. Further, the Board also finds that a separate disability rating under Diagnostic Code 5259 is not warranted in the present case with respect to either knee. Review of the evidence of record does not reflect that the Veteran underwent a meniscectomy or that the left or right knee disabilities have been otherwise manifested by removal of the semilunar cartilage; therefore, the Board finds that Diagnostic Code 5259 does not apply. Diagnostic Code 5262 does not apply, as there is no evidence of impairment of the tibia or fibula of either knee. Diagnostic Code 5263 assigns a single 10 percent disability rating for genu recurvatum that is acquired, traumatic, and with weakness and insecurity in weight-bearing objectively demonstrated. As the evidence of record does not reflect that the Veteran has genu recurvatum of either knee, Diagnostic Code 5263 does not apply. Id. Finally, for the entire initial rating period, there is no evidence of record of any scars associated with the left or right knee disabilities nor has the Veteran asserted otherwise; therefore, the Board finds that the Veteran is not entitled to a separate compensable rating for scars under Diagnostic Codes 7800 through 7805 for the bilateral knee disabilities. 38 C.F.R. § 4.118 (2015). Initial Rating for Low Back Strain Disability The Veteran is in receipt of a zero percent disability initial rating for the low back strain disability under Diagnostic Code 5237 from July 27, 2008. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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. Id. 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 (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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Diagnostic Code 5243 provides the following Notes: Note (1): 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. Id. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. The Veteran contends generally that the severity of the symptoms and functional impairment manifested by the service-connected low back strain disability warrants a disability rating in excess of zero percent. See November 2015 Appellant's Brief. The Veteran has reported complaints of chronic back pain and the inability to lift heavy objects or walk more than one mile. See May 2009 VA examination report. After a review of all the evidence, lay and medical, the Board finds that from July 38, 2008 the criteria for a disability rating of 10 percent, but no higher, have been met as the low back strain disability has been manifested by objective evidence of painful motion, stiffness, and muscle spasms. The Board also finds the low back strain disability has not been manifested by forward flexion less than 60 degrees, combined range of motion less than 120 degrees, and/or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. The May 2009 VA examination report reflects the low back disability manifested as forward flexion to 90 degrees with no objective evidence of painful motion with no incapacitating episodes. The May 2009 VA examination report reflects muscle spasms. An April 2009 VA treatment record reflects the Veteran reported chronic low back pain. In May 2009, the Veteran underwent a VA examination for the service-connected back disability. At the May 2009 examination, the Veteran conveyed moderate, sharp, aching back pain, and the inability to lift heavy objects or walk more than a mile, all proximately due to the service-connected back disability. The Veteran did not advance experiencing any incapacitating episodes and denied flare-ups. At the May 2009 VA examination, range of motion testing of the thoracolumbar spine reflected flexion to 90 degrees, extension to 30 degrees, bilateral flexion to 30 degrees, and bilateral rotation at 30 degrees. The VA examiner noted no evidence of objective pain on active range of motion testing. The VA examiner also noted normal gait and severe effects on the Veteran's ability to participate in sports and exercise, as well as traveling. Moderate effects were noted under chores. No ankylosis or scoliosis was observed. Findings from the May 2009 VA examination are consistent with a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine for the symptoms and level of impairment actually demonstrated by the service-connected back disability. Diagnostic Code 5237 warrants a 10 percent rating for muscle spasms, or guarding, and/or localized tenderness not resulting in abnormal gait or abnormal spinal contour. In this case, as noted at the May 2009 VA examination, the Veteran's back disability has manifested as muscle spasms, normal gait, and no ankylosis or scoliosis. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine (DCs 5235 to 5243) (assigning a 10 percent rating, in pertinent part, for muscle spasm). While the Veteran has met the criteria for a 10 percent initial disability rating during the period on appeal from July 28, 2008, the evidence does not meet the criteria for a rating in excess of 10 percent. An initial disability rating of 20 percent or higher would only be warranted for forward flexion more closely approximating less than 60 degrees, or combined range of motion less was than 120 degrees, and/or muscle spasm or guarding was severe enough to result in abnormal gait or abnormal spinal contour, none of which are present here. The May 2009 VA examination report also reflects the Veteran denied flare-ups. The Board also finds that a higher disability rating is not warranted under the Intervertebral Disc Syndrome Formula (incapacitating episodes) for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In reaching its finding, the evidence did not show any episodes of incapacitation over any 12 month period. See May 2009 VA Examination Report; see also 38 C.F.R. § 4.17a, Diagnostic Code 5243. The Board has also considered whether there are any objective neurologic abnormalities associated with the service-connected low back strain disability that warrant a separate rating. See 38 C.F.R. §§ 4.14, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board finds that no objective neurologic abnormalities have been asserted by the Veteran or raised by the other evidence of record; therefore, a separate rating for neurologic abnormalities associated with the service-connected thoracolumbar back disability is not warranted. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating would have been warranted for the left or right knee and/or the lower back under 38 C.F.R. § 3.321(b)(1) (2015). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). First, the Board finds that all the symptomatology and impairment caused by the Veteran's bilateral knee disabilities is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's bilateral knee disabilities have been manifested by symptoms of painful motion, swelling, weakened movement, flare-ups, interference with sitting and standing, and limitation of flexion. As discussed above, the schedular rating criteria specifically provide ratings for painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59) and limitation of motion (Diagnostic Codes 5260 and 5261), including motion limited due to orthopedic factors such as pain, incoordination, weakness, and instability of station (38 C.F.R. § 4.40, 4.45, 4.59, DeLuca), which are incorporated into the schedular rating criteria. The Board also finds the schedular criteria are adequate to rate the Veteran's low back strain disability, and no referral for extraschedular consideration is required. The low back strain disability has manifested primarily as non-incapacitating episodes with limited range of motion, including due to pain, and interference with standing and weight bearing. See 38 C.F.R. § 4.45 ("interference with sitting, standing, and weight-bearing are related considerations"). The scheduler rating criteria specifically include back pain, whether or not it radiates, as part of the General Formula for Diseases and Injuries of the Spine. The scheduler rating criteria (Diagnostic Code 5237) specifically contemplate such symptomatology and functional impairment. As discussed above, painful limitation of motion and interference with standing and weight-bearing are specifically considered under the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 205-206 (additional limitation of motion due to orthopedic factors are incorporated as part of the schedular rating criteria). The Board notes that, according to Johnson v. McDonald 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Finally, in adjudicating the current appeal for a higher rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be part of an a rating issue when the TDIU claim is either expressly raised by a veteran or reasonably suggested by the record. (CONTINUED ON NEXT PAGE) In this case, as distinguished from the facts in Rice, there is no evidence of record that indicates that the Veteran is currently unemployed because of the service-connected disabilities; therefore, a TDIU issue has not been raised. ORDER An initial disability rating of 10 percent, but no higher, from July 28, 2008, for a left knee disability is granted. An initial disability rating of 10 percent, but no higher, from July 28, 2008, for a right knee disability is granted. An initial disability rating of 10 percent, but no higher, from July 28, 2008, for a low back strain disability is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs