Citation Nr: 1605812 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 12-08 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for degenerative joint disease with low back strain. 2. Entitlement to a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion, including on an extraschedular basis. 3. Entitlement to a disability rating greater than 20 percent for right knee osteoarthritis with limitation of extension. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1974 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claims for a disability rating greater than 20 percent for degenerative joint disease with low back strain, a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion, including on an extraschedular basis, and for a disability rating greater than 10 percent for right knee osteoarthritis with limitation of extension. The Veteran disagreed with this decision in July 2013. He perfected a timely appeal in March 2015. A Travel Board hearing was held at the RO in June 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In July 2015, the Board remanded these claims, in pertinent part, to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ attempt to obtain the Veteran's updated treatment records and schedule him for appropriate VA examinations to determine the current nature and severity of his service-connected degenerative joint disease with low back strain, right knee osteoarthritis with limitation of flexion, and right knee osteoarthritis with limitation of extension. Additional records subsequently were associated with the claims file and the requested examinations occurred in August 2015. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the RO granted the Veteran's TDIU claim in a November 2015 rating decision. Accordingly, the Board finds that Rice is inapplicable. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected degenerative joint disease with low back strain is manifested by, at worst, forward flexion limited to 35 degrees with complaints of painful motion and mid to lower lumbar paraspinous muscle tenderness. 2. The record evidence shows that the Veteran's service-connected right knee osteoarthritis with limitation of flexion is manifested by, at worst, flexion limited to 80 degrees, complaints of severe knee pain, and reported falls due to instability. 3. There is no indication that the symptomatology attributable to the Veteran's service-connected right knee osteoarthritis results in marked interference with his employability or requires frequent hospitalization such that he is not compensated appropriately by the disability rating currently assigned. 4. The record evidence shows that the Veteran's service-connected right knee osteoarthritis with limitation of extension is manifested by, at worst, extension limited to 80 degrees, complaints of severe knee pain, and reported falls due to instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for degenerative joint disease with low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2015). 2. The criteria for a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion have not been met, including on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5260 (2015). 3. The criteria for a disability rating greater than 20 percent for right knee osteoarthritis with limitation of extension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in February 2013, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence showing that his degenerative joint disease with low back strain and right knee osteoarthritis had worsened. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four-part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Vazquez-Flores in part, striking the claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Following the Federal Circuit's decision, the Court subsequently issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III). For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III either have been met in this case or that any error in not providing such notice is not prejudicial to the Veteran. The first and third elements were met by the VCAA notice letter issued during the pendency of this appeal. This letter informed the Veteran that he needed to provide information showing his service-connected disability had worsened. He was informed that such evidence could be a statement from his doctor or lay statements describing what individuals had observed about his disability. He was told that he needed to provide VA information as to where he had received medical treatment, or that he could send VA any pertinent treatment records. Examples of evidence needed to support the claim were provided, including laboratory tests, examinations, and statements from other individuals who could describe from their knowledge and personal observations the manner in which his disability had worsened. He also was informed of what evidence VA would obtain on his behalf and what he needed to do to help VA process his claims. The Veteran also has submitted personal statements and lay statements from others with respect to his service-connected disabilities. As the Board finds the Veteran had actual knowledge of the requirement to show worsening of the disabilities and the variety of the medical and lay evidence which could support his claims, any failure to provide him with adequate notice as to the first and third Vazquez-Flores elements is not prejudicial. As to the second element of Vazquez-Flores notice, the Board acknowledges that the Veteran was not provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment. See Vazquez-Flores III, 24 Vet. App. at 107. The Veteran received a statement of the case in January 2015 and a supplemental statement of the case in November 2015 addressing his claims. Specific VCAA notice to the Veteran of the ratings schedule to be applied to the symptomatology of his disabilities is unnecessary in light of repeated correspondence sent to the Veteran by the AOJ describing the Rating Schedule and applying the relevant regulations to his claims. The Board finds that the Veteran was on constructive notice of the existence and function of the Ratings Schedule. The Board further finds that any error in the third element of Vazquez-Flores notice is not prejudicial. In summary, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. As will be explained below in greater detail, the evidence does not support granting an increased rating for degenerative joint disease with low back strain, right knee osteoarthritis with limitation of flexion, or for right knee osteoarthritis with limitation of extension. Because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the AOJ to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini, 18 Vet. App. at 112. Here, all appropriate notice was issued prior to the currently appealed rating decision; thus, this notice was timely. Because the Veteran's increased rating claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the Veteran. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his agent has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's electronic paperless claims files in Virtual VA and in Veterans Benefits Management System (VBMS) have been reviewed. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. The Veteran was assisted at the hearing by an accredited agent. The agent and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his agent has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. The Veteran's agent and the VLJ asked questions to draw out the evidence which supported the Veteran's claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran also has been provided with VA examinations which address the current nature and severity of his degenerative joint disease with low back strain and right knee osteoarthritis. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Increased Rating Claims The Veteran contends that his service-connected degenerative joint disease with low back strain, right knee osteoarthritis with limitation of flexion, and right knee osteoarthritis with limitation of extension are all more disabling than currently evaluated. The Veteran specifically contends that his back and right knee are both extremely painful and he has fallen frequently because of his right knee. Laws and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In Johnson, the Federal Circuit held that 38 C.F.R. § 3.321 required consideration of whether a Veteran is entitled to referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating based on the impact of his or her service-connected disabilities, individually or collectively, on the Veteran's "average earning capacity impairment" due to such factors as marked interference with employment or frequent periods of hospitalization. See Johnson v. McDonald, 762 F.3d 1362 (2014); see also 38 C.F.R. § 3.321(b)(1). As is explained below in greater detail, following a review of the record evidence, the Board concludes that the symptomatology experienced by the Veteran as a result of his service-connected disabilities, individually or collectively, does not merit referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating. In other words, the record evidence does not indicate that the Veteran's service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule. The Veteran's service-connected degenerative joint disease with low back strain currently is evaluated as 20 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5242 (degenerative arthritis of the spine). See 38 C.F.R. § 4.71a, DC 5242 (2015). A 20 percent rating is assigned under DC 5242 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242 (2015). The Veteran's service-connected right knee osteoarthritis with limitation of flexion currently is evaluated as 30 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5010-5260 (traumatic arthritis-limitation of leg flexion). See 38 C.F.R. § 4.71a, DC 5010-5260 (2015). A maximum 30 percent rating is assigned under DC 5260 for leg flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260 (2015). Because the Veteran is in receipt of the maximum scheduler rating available under DC 5260, other appropriate DCs for evaluating knee and leg disabilities should be considered. The Board notes in this regard that a 40 percent rating is assigned under DC 5256 for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is assigned under DC 5256 for knee ankylosis in flexion between 20 and 45 degrees. A maximum 60 percent rating is assigned under DC 5256 for extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more. See 38 C.F.R. § 4.71a, DC 5256 (2015). And a maximum 40 percent rating is assigned under DC 5262 for non-union of the tibia and fibula with loose motion requiring a brace. See 38 C.F.R. § 4.71a, DC 5262 (2015). The Veteran's service-connected right knee osteoarthritis with limitation of extension is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5261 (limitation of leg extension). See 38 C.F.R. § 4.71a, DC 5261 (2015). A 20 percent rating is assigned under DC 5261 for leg extension limited to 15 degrees. A 30 percent rating is assigned for leg extension limited to 20 degrees. A 40 percent rating is assigned for leg extension limited to 30 degrees. A maximum 50 percent rating is assigned for leg extension limited to 45 degrees. Id. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2015). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2015). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, the knee is considered a major joint and the lumbar vertebrae are considered a group of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45 (2015). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2015). Where a Veteran has a limitation of flexion and a limitation of extension, the limitations must be rated separately to compensate adequately for functional loss. This comports with the principle underlying Esteban. See VAOPGCPREC 9-2004. The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his or her earning capacity and would constitute pyramiding. See Esteban, 6 Vet. App. at 259 (citing Brady v. Brown, 4 Vet. App. 203 (1993)). VA's General Counsel has held that limitation of motion and instability of the knee involve different symptomatology and separate ratings specifically are allowed under the Rating Schedule with x-ray evidence of arthritis. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. In this case, the Veteran currently is in receipt of separate ratings for limitation of flexion and limitation of extension in the right knee. Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim for a disability rating greater than 20 percent for degenerative joint disease with low back strain. The Veteran contends that his service-connected degenerative joint disease with low back strain is extremely painful on a daily basis. The medical evidence does not support his assertions. It shows instead that this disability is manifested by, at worst, forward flexion limited to 35 degrees with complaints of painful motion and mid to lower lumbar paraspinous muscle tenderness (as seen on VA back conditions Disability Benefits Questionnaire (DBQ) in August 2015). For example, on VA back conditions DBQ in April 2013, the Veteran's complaints included lower back and bilateral leg pain. The VA examiner reviewed the Veteran's VA treatment records. Range of motion testing showed forward flexion to 45 degrees with objective evidence of painful motion beginning at 10 degrees, extension to 0 degrees with objective evidence of painful motion beginning at 0 degrees, lateral flexion to 30 degrees with objective evidence of painful motion beginning at 10 degrees in each direction, and lateral rotation to 30 degrees with objective evidence of painful motion beginning at 10 degrees in each direction. Physical examination showed tenderness to palpation in the joints and/or soft tissues of the thoracolumbar spine, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes, normal sensation in the upper anterior thigh and the thigh/knee bilaterally, absent sensation in the lower leg/ankle and foot/toes bilaterally, no radicular pain or other signs or symptoms due to radiculopathy, no bowel or bladder problems, and no intervertebral disc syndrome. The Veteran regularly used a walker for ambulation. X-rays of the thoracolumbar spine were normal. The VA examiner stated that the Veteran was "able to do sedentary duties, mainly sitting. No lifting over 10 pounds." The diagnosis was back strain. On VA back conditions DBQ in August 2015, the Veteran's complaints included constant pain localized to the upper lumbar region aggravated by flexion of the spine and some radiation of the bilateral lower extremities in to the thighs. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. This examiner stated that, although the Veteran reported experiencing numbness of the bilateral lower extremities for "years," there was no objective evidence of a diagnosis of radiculopathy or any electromyograph (EMG) evidence supporting such diagnosis. The Veteran rated his pain as 9/10 on a pain scale (with 10/10 being the worst pain imaginable). He was unable to sit for longer than 45 minutes, stand for more than 1 hour, or walk more than a few hundred feet. He experienced daily flare-ups of pain lasting 30 minutes at a time and aggravated by any movement. His wife assisted him in his activities of daily living with showering "due to Veteran's inability to bend down to wash lower part of body," and donning and doffing socks, shoes, and pants. He was able to feed himself and use the toilet without assistance. The Veteran last had worked in 2004 and was on Social Security Disability. Physical examination in August 2015 showed forward flexion to 35 degrees which was "significantly limited such that activities requiring rapid torso movements would be limited," with complaints of pain on all movements, evidence of pain on weight bearing, tenderness to palpation of the joints or soft tissues of the back in the mid to lower lumbar paraspinous muscles, no additional limitation of motion on repetitive testing, no muscle spasm or guarding, localized tenderness not resulting in abnormal gait or spinal contour, instability of station, disturbance of locomotion, interference with sitting and standing, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes, negative straight leg raising, subjective complaints of moderate radiculopathic intermittent pain and mild numbness of the bilateral lower extremities, no ankylosis, and no intervertebral disc syndrome. Although sensation was absent, the VA examiner stated that this was out of proportion and not consistent with any radiculopathic distribution or x-rays obtained at this examination. This examiner also stated that there was no objective evidence of radiculopathy and the Veteran's complaints of radiculopathy were subjective. The Veteran reported occasionally using a cane and regularly using a rolling walker for ambulation. X-rays were reviewed and showed spondylosis deformans of the lumbar spine and mild degenerative disease at L4/5. The VA examiner stated that any job duties which required prolonged standing or walking and heavy lifting "would be limited." The diagnosis was degenerative joint disease and low back strain. The Board acknowledges the Veteran's lay statements and hearing testimony that his service-connected degenerative joint disease with low back strain is extremely painful on a daily basis. See Board hearing transcript dated June 9, 2015, at pp. 7-10. The record evidence does not support a finding that there has been an objective worsening of this disability such that an increased rating is warranted. The VA examiner specifically found in August 2015 that the Veteran did not experience any spine ankylosis (whether favorable or unfavorable) and, although his range of motion was limited and painful, he still had 35 degrees of forward flexion of the spine. Similarly, although the Veteran complained of radiculopathic pain of the bilateral lower extremities and said he had no sensation in his lower extremities in August 2015, the examiner noted that there was no objective evidence supporting these complaints which seemed out of proportion to the physical examination findings and were not supported by the Veteran's x-rays. These findings are similar to the absence of radiculopathy or radicular pain noted on the Veteran's April 2013 VA examination. In other words, there is no indication in the record evidence that the Veteran experiences forward flexion limited to 30 degrees or ankylosis of the thoracolumbar spine or the entire spine (i.e., a 40, 50, or 100 percent rating) such that an increased rating is warranted for his service-connected degenerative joint disease with low back strain under DC 5242. See 38 C.F.R. § 4.71a, DC 5242 (2015). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an increased rating for this disability. Accordingly, the Board finds that the criteria for a disability rating greater than 20 percent for degenerative joint disease with low back strain have not been met. The Board next finds that the preponderance of the evidence is against granting the Veteran's claims for a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion and for a disability rating greater than 10 percent for right knee osteoarthritis with limitation of extension. The Veteran contends that his right knee disabilities are both more disabling than currently evaluated. As noted elsewhere, because the Veteran already is in receipt of the maximum 30 percent rating available for limitation of leg flexion under DC 5260, other applicable DCs for evaluating disabilities of the knee and leg must be considered in evaluating his entitlement to an increased rating for his service-connected right knee osteoarthritis with limitation of flexion. Despite the Veteran's assertions to the contrary, the record evidence does not support a finding that this disability has worsened such that an increased rating is warranted for his service-connected right knee osteoarthritis with limitation of flexion under another potentially applicable DC for evaluating knee and leg disabilities. Nor does the record evidence support assigning an increased rating for the Veteran's service-connected right knee osteoarthritis with limitation of extension. The evidence shows instead that the Veteran's service-connected right knee osteoarthritis with limitation of flexion and is manifested by, at worst, flexion limited to 80 degrees, complaints of severe knee pain, and reported falls due to instability (as seen on VA knee conditions DBQ in August 2015). It also shows that the Veteran's service-connected right knee osteoarthritis with limitation of flexion is manifested by, at worst, extension limited to 80 degrees, complaints of severe knee pain, and reported falls due to instability (as seen on VA knee conditions DBQ in August 2015). For example, on VA knee and lower leg conditions DBQ in April 2013, the Veteran complained of chronic right knee pain "all the time." The VA examiner reviewed the Veteran's VA treatment records. Physical examination showed 5/5 muscle strength. The Veteran regularly used a knee brace for ambulation. X-rays showed marked medial joint space degenerative arthritis of the right knee. At the August 2015 VA knee conditions DBQ, the Veteran's complaints included constant severe knee pain which he rated as 10/10 on a pain scale (or the worst imaginable pain) and falls due to knee pain/giving way. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. He was unable to sit for longer than 45 minutes, stand for more than 1 hour, or walk more than a few hundred feet. He experienced daily flare-ups of pain lasting 30 minutes at a time. His wife assisted him in his activities of daily living with showering "due to Veteran's inability to bend down to wash lower part of body," and donning and doffing socks, shoes, and pants. Physical examination of the right knee in August 2015 showed flexion to 80 degrees and extension to 80 degrees with pain at the beginning of movement which would limit the Veteran's activities "involving kneeling/squatting as well as normal locomotion," evidence of pain on weight-bearing, tenderness to the medial joint line, objective evidence of crepitus, no additional limitation of motion on repetitive testing, instability of station, disturbance of locomotion, interference with sitting and standing, 5/5 muscle strength, no muscle atrophy, no ankylosis, a genu varum deformity at 10 degrees, and no joint instability. The Veteran constantly used an offloader brace on the right knee. X-rays showed the presence of traumatic arthritis. The VA examiner stated that any work duties involving lifting, prolonged standing, walking, or kneeling "would be limited." The diagnoses included right knee joint osteoarthritis. The Veteran's SSA records show that he is in receipt of SSA disability benefits for bilateral knee disability and for hepatitis. These records consist of duplicates copies of VA outpatient treatment records and examination reports. The Board acknowledges the Veteran's lay statements and hearing testimony that his service-connected right knee osteoarthritis with limitation of flexion and right knee osteoarthritis with limitation of extension result in an extremely painful and unstable right knee on a daily basis. See Board hearing transcript dated June 9, 2015, at pp. 12-14. The record evidence does not support a finding that there has been an objective worsening of either of these right knee disabilities such that increased ratings are warranted. With respect to the Veteran's service-connected right knee osteoarthritis with limitation of flexion, the record evidence does not show that he experiences right knee ankylosis in flexion between 10 and 20 degrees or non-union of the tibia and fibula (i.e., at least a 40 percent rating under DC 5256 or DC 5262, respectively) such that an increased rating is warranted for this disability under other applicable DCs for evaluating knee disabilities. See 38 C.F.R. §§ 4.71a, DCs 5256, 5262 (2015). The August 2015 VA examiner specifically found no evidence of right knee ankylosis on physical examination. With respect to the Veteran's service-connected right knee osteoarthritis with limitation of extension, the evidence does not indicate that the Veteran's right knee extension is limited to 15 degrees (i.e., at least a 20 percent rating under DC 5261) such that an increased rating is warranted for this disability. See 38 C.F.R. § 4.71a, DC 5261 (2015). The Board acknowledges that the Veteran experiences both limited flexion and limited extension in his right knee. He already is in receipt of separate ratings based on his limitation of motion. See VAOPGCPREC 9-2004. The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to increased ratings for right knee osteoarthritis with limitation of flexion or for right knee osteoarthritis with limitation of extension. Accordingly, the Board finds that the criteria for a disability rating greater than 30 percent for right knee osteoarthritis and for a disability rating greater than 20 percent for right knee osteoarthritis with limitation of extension have not been met. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of extraschedular ratings for his service-connected degenerative joint disease with low back strain, his service-connected right knee osteoarthritis with limitation of flexion, and for his service-connected right knee osteoarthritis with limitation of extension. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). The Board notes again that the Veteran currently is in receipt of the maximum 30 percent rating under DC 5260 for his service-connected right knee osteoarthritis with limitation of flexion. See 38 C.F.R. § 4.71a, DC 5260 (2015). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluations assigned for the Veteran's service-connected degenerative joint disease with low back strain, right knee osteoarthritis with limitation of flexion, and right knee osteoarthritis with limitation of extension are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of each of these service-connected disabilities. This is especially true because the 30 percent rating currently assigned for the Veteran's right knee osteoarthritis with limitation of flexion effective February 8, 2007, contemplates severe disability due to limited flexion, the 10 percent rating currently assigned for the Veteran's right knee osteoarthritis with limitation of extension effective November 15, 2005, contemplates mild disability due to limited extension, and the 20 percent rating currently assigned for the Veteran's degenerative joint disease with low back strain effective February 8, 2007, contemplates mild to moderate back disability. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. It appears that the Veteran has been unable to work since approximately 2004, including throughout the pendency of this appeal. Although he is in receipt of SSA disability benefits due to his bilateral knee disabilities, the Board notes that VA is not bound by any determination of SSA. And, as noted elsewhere, the Veteran was awarded a TDIU in a November 2015 rating decision. The Veteran further has not been hospitalized for treatment of any of his currently appealed service-connected disabilities at any time during the pendency of this appeal. As also noted elsewhere, the record evidence does not indicate that the Veteran's service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule such that he is entitled to extraschedular consideration under Johnson. In light of the above, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating greater than 20 percent for degenerative joint disease with low back strain is denied. Entitlement to a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion, including on an extraschedular basis, is denied. Entitlement to a disability rating greater than 20 percent for right knee osteoarthritis with limitation of extension is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs