Citation Nr: 1625106 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 10-16 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable evaluation for a right knee disability prior to March 13, 2009, and in excess of 10 percent from May 1, 2009. 2. Entitlement to an initial evaluation for a lumbar spine disability in excess of 20 percent prior to May 7, 2012, and in excess of 10 percent from May 7, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran had active service from April 2003 to April 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The rating decision granted service connection for a lumbar spine disability, rated as 20 percent disabling, from April 7, 2008, and for a right knee disability, rated as noncompensable, from April 7, 2008. During the pendency of the appeal, an April 2009 rating decision assigned a temporary 100 percent evaluation for the right knee disability from March 13, 2009, to May 1, 2009, while a February 2010 rating decision increased the rating to 10 percent from May 1, 2009. A September 2012 decision decreased the evaluation of the Veteran's lumbar spine disability to 10 percent, effective May 7, 2012. A hearing was held before the undersigned in February 2013. A transcript of the hearing is of record. In December 2013, the appeal was remanded for further evidentiary development. The December 2013 remand referred to the Agency of Original Jurisdiction (AOJ) the issue of entitlement to service connection for a hip disability, secondary to service-connected lumbar spine disability. Although a March 2014 document indicates the claim was referred to the AOJ, the record does not indicate that any action has been taken on the claim. Therefore, the claim is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to March 13, 2009, the Veteran's right knee disability was manifested by slight recurrent subluxation. 2. From May 1, 2009, the Veteran's right knee disability has been manifested by slight recurrent subluxation, painful limitation of flexion causing functional loss, and painful limitation of extension causing functional loss. 3. Throughout the appeal period, the Veteran's lumbar spine disability has been manifested by symptoms that most nearly approximate forward flexion of the thoracolumbar spine limited to greater than 30 degrees but not greater than 60 degrees, when considering the Veteran's pain with associated functional loss. CONCLUSIONS OF LAW 1. Prior to March 13, 2009, the criteria for entitlement to an initial compensable rating for limitation of motion of the right knee were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260, 5261 (2015). 2. Prior to March 13, 2009 and from May 1, 2009, the criteria for entitlement to an initial separate 10 percent, but no higher, rating for subluxation of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2015). 3. From May 1, 2009, the criteria for entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2015). 4. From May 1, 2009, the criteria for entitlement to an initial separate 10 percent, but no higher, rating for limitation of extension of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2015). 5. From May 7, 2012, the criteria for entitlement to an initial 20 percent rating for the lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2015). 6. Throughout the appeal period (from April 7, 2008), the criteria for entitlement to an initial rating in excess of 20 percent for the lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the duty to assist as it relates to the adequacy of the VA examinations, the Veteran appeared at a VA examination in October 2009 to assess the severity of his right knee disability and at VA examinations in March 2008, May 2012, and January 2014 to assess the severity of his right knee and lumbar spine disabilities. At the February 2013 hearing the Veteran testified that the May 2012 VA examination report was not an accurate reflection of his lumbar spine or right knee ranges of motion. He stated that during range of motion testing, the VA examiner physically pushed his spine and right leg beyond the points at which he had stopped movement due to pain. The Veteran testified that he is a nursing student and as such felt that the examination was completely inappropriate. As noted in the December 2013 remand, the Board finds that the physical examination conducted on May 2012 examination was inadequate. Thus, the Board will not rely on physical examination findings from the May 2012 examination in this decision. The Board will only discuss the May 2012 examination report to the extent that it provides insight into the Veteran's reported symptoms of his knee and lumbar spine disabilities. Pursuant to the Board's remand, the AOJ scheduled the Veteran for an examination to assess the severity of his right knee and back disabilities in January 2014. The report reflects that the examiner examined the Veteran, took the Veteran's history regarding his symptoms, and provided pertinent findings regarding the severity of the Veteran's disabilities. Therefore, the January 2014 VA examination is adequate for evaluation purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not indicated that this examination was inadequate. The Veteran also has not indicated that the March 2008 and October 2009 examinations were inadequate and there is no indication from the record that these examinations were inadequate. Hence, these examinations also are adequate for rating purposes. The Board finds that VA has met all other statutory and regulatory assistance provisions. See 38 U.S.C.A. §§ 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.326; see also Scott, 789 F.3d 1375. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria and Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. 1. Increased Rating - Right Knee Disability As noted in the Introduction, the July 2008 rating decision on appeal granted service connection for a right knee disability, evaluated as noncompensable from April 7, 2008. An April 2009 rating decision awarded the Veteran a temporary total rating under the provisions of 38 C.F.R. § 4.30, effective from March 13, 2009 to May 1, 2009 and a noncompensable rating from May 1, 2009. A February 2010 rating decision awarded an increased 10 percent rating from May 1, 2009. The Veteran contends that he is entitled to higher ratings both prior to March 13, 2009 and from May 1, 2009. The Veteran's right knee disability has been evaluated under 38 C.F.R. § 4.71a, DC 5260. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. In the present case, the Board finds the most appropriate diagnostic codes to evaluate the right knee are DCs 5257, 5260, and 5261. DC 5257 evaluates instability, DC 5260 contemplates limitation of flexion, and DC 5261 evaluates limitation of extension. The Board has also considered whether separate or increased evaluations are warranted under any other DCs pertaining to knee disabilities that would afford the Veteran a higher rating. There is no evidence of ankylosis of the knee to warrant a rating under DC 5256 and no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under DC 5262 for impairment of the tibia and fibula. Hence, the Board will not discuss these DCs any further at any point during the appeal period. Prior to March 13, 2009, there is no evidence of symptomatic removal of semilunar cartilage under DC 5259 and no evidence of dislocated semilunar cartilage with frequent locking, pain and effusion to warrant a rating under DC 5258. Therefore, these criteria will not be discussed for the period prior to March 13, 2009, but will be addressed from May 1, 2009. DC 5260 provides a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating is available where extension is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, and a 30 percent rating is available where extension is limited to 20 degrees. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 38 C.F.R. § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence. Petitti v. McDonald, 27 Vet. App. 415 (2015). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). For clarity of discussion, the Board will first discuss the rating prior to March 13, 2009 and then discuss the rating from May 1, 2009. i. Prior to March 13, 2009 Regarding limitation of motion and evaluation under DC 5260 or 5261, in his January 2008 Notice of Disagreement, the Veteran reported that he experienced a level of discomfort in his knee every day and that some days were much worse than others. He indicated that he could not run anymore and was unable to exercise to the extent to which he used to be able to exercise. He stated that his knee affected him at work if he either sat or stood for too long a period of time and that it was beginning to affect his overall performance. He indicated that he often needed help doing chores around the house and that he was limited to only being able to perform certain physical tasks. In a January 2009 statement, the Veteran's spouse reported that the Veteran often needed her help to do everyday chores around the house. She said he had gained weight because it hurt him so much to exercise and that their sex life had suffered as a result of his pain. On March 2008 VA examination, flexion of the knee was to 140 degrees and extension was to 0 degrees. There was no atrophy of the quadriceps, tenderness, crepitus, or effusion. There was no pain during range of motion or additional limitation of motion with repetition. X-rays of the right knee were normal. The Veteran did not use any assistive devices and the examiner found that the right knee disability had a moderate effect on exercise and a severe effect on sports, as the Veteran reported experiencing severe pain with high impact activities. There was no significant effect on the Veteran's occupation. VA treatment records reflect that in November 2008, the right knee had full range of motion on examination. There was no effusion and no joint line tenderness. There was positive patellar crepitus, but no patellar apprehension sign. X-ray results were normal. In January 2009, it was noted that the knee had marked medial joint line tenderness with no effusion. A preponderance of the evidence is against a finding that the Veteran is entitled to a compensable rating under either 5260 or 5261 prior to March 13, 2009. Physical examination of the knee during this time frame revealed full extension and flexion on range of motion testing. On March 2008 VA examination, there was no pain noted or additional limitation of motion on repetitive use testing and no indication of functional loss with range of motion. Therefore, the evidence does not more nearly approximate knee flexion limited to 45 degrees or knee extension limited to 10 degrees. Although the Veteran has complained generally of pain in the right knee, the evidence does not more nearly approximate noncompensable, but painful, motion; therefore, a minimum compensable rating per 38 C.F.R. § 4.59 and Burton prior to March 13, 2009 is not warranted. Under VAOPGCPREC 23-97, the Veteran may be assigned separate ratings for limitation of motion under DC 5260 or 5261 and for instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). Hence, the Board will next consider whether he is entitled to a separate evaluation for instability of the right knee under DC 5257 prior to March 13, 2009. Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC 5257. The words slight, moderate, and severe are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds the Veteran is entitled to a separate 10 percent rating under DC 5257 prior to March 13, 2009. Specifically, on March 2008 VA examination, the Veteran reported experiencing popping and weakness of the right knee. A November 2008 VA treatment record notes that Lachman's testing revealed some laxity of the right knee. Additionally, at the February 2013 Board hearing, the Veteran testified that prior to his March 2009 right knee surgery he had a lot of problems with the right knee giving way, including that he would sometimes fall walking upstairs because the knee would give way. Board Hearing Tr. at 20. The Veteran is competent to describe symptoms of instability as they are observable by a lay person. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board also finds the Veteran's statements to be credible, as objective evidence via Lachman testing in November 2008 revealed some laxity of the right knee. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Resolving the benefit of the doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to a separate 10 percent rating for slight instability of the right knee prior to March 13, 2009. A preponderance of the evidence is against a finding that he is entitled to a higher 20 percent rating for moderate instability of the right knee. Although the Veteran reported experiencing instability of the right knee prior to his March 2009 surgery and Lachman testing was positive in November 2008, there was no other objective evidence of right knee instability during that time period. On March 2008 VA examination, testing revealed no laxity of the collateral ligaments. In November 2008, drawer testing was negative. A January 2009 VA treatment record reflects no objective evidence of instability. Therefore, the Board concludes the evidence most nearly approximates slight instability of the right knee and that a preponderance of the evidence is against a finding that instability of the right knee more nearly approximates moderate symptomatology. In summary, the Veteran is not entitled to a compensable rating for limitation of motion of the right knee under either DC 5260 or DC 5261 prior to March 13, 2009; however, a separate 10 percent, but no higher, rating is warranted for slight recurrent subluxation and lateral instability of the right knee under DC 5257 prior to March 13, 2009. ii. From May 1, 2009 The Veteran underwent arthroscopy and partial synovectomy of the right knee on March 13, 2009 for a suspected meniscal tear. The postoperative diagnosis was that the Veteran had a synovial fibroma of the right knee. See March 2009 VA Operation Report. An April 2009 rating decision awarded the Veteran a temporary total rating for the right knee disability from March 13, 2009 to May 1, 2009. Therefore, as the Veteran has a 100 percent schedular rating, that time period will not be further considered. As noted above, a February 2010 rating decision awarded the Veteran an increased 10 percent rating under DC 5260 for limitation of flexion of the right knee. Thus, the Board will next consider whether the Veteran is entitled to a rating in excess of 10 percent from May 1, 2009. A May 2009 VA treatment record reflects the Veteran reported having knee pain of 8 on a 10 pain scale before treatment and 5 out of 10 after treatment. In June 2009, his active range of motion of the right knee was noted to be 0 degrees of extension to 125 degrees of flexion. In August 2011, the Veteran reported experiencing a lot of pain in the knee and that he was trying physical therapy. In October 2012, the Veteran reported that he was taking Emergency Medical Technician training and that such courses had not negatively impacted his right knee. In February 2013, physical examination revealed full range of motion of the right knee, with no joint line tenderness or effusion. In March 2013, the Veteran reported that the best his pain got was 6 out of 10 with medication. His pain was worse in the morning after first getting out of bed and slightly improved with movement throughout the day. In May 2013, he reported having intermittent right knee pain, but the knee did not swell or lock. X-rays were normal. There was no effusion or redness. It was noted he had a painful medial synovial band that snapped beneath the finger, but it was not severe enough to contemplate surgery. On October 2009 VA examination, the Veteran reported experiencing constant pain at a level of 7 on a 10 pain scale. He indicated that Tylenol provided moderate pain relief. He reported that his right knee disability affected his occupation because of increased pain and decreased endurance to prolonged sitting while driving a bus and prolonged standing; however, he was usually able to complete all necessary tasks at work. He reported missing 6 weeks of work in the past year for knee surgery and recuperation. He experienced flare ups twice a week for 1 to 2 hours. During flare ups, he reported his pain increased to a level of 9 or 10 with swelling and he was only able to walk the distance necessary to get to work and class, which was approximately 50 feet. Physical examination revealed tenderness and effusion. Range of motion was to 70 degrees of flexion and 0 degrees of extension. Pain was noted with flexion from 50 to 70 degrees and with extension from 10 to 0 degrees. There was no additional limitation of motion following repetition. X-rays did not reveal any significant abnormality. On May 2012 VA examination, the Veteran reported having intermittent pain to the right knee that was aggravated by prolonged standing, going up and down stairs, and driving. He reported he did not experience any flare ups and was not currently receiving treatment. At the February 2013 Board hearing, the Veteran testified that he experienced pain and tightness in his right knee and that it would sometimes feel like it was locking up on him. Board Hearing Tr. at 21. On January 2014 VA examination, the Veteran reported that his right knee hurt almost daily. He took over-the-counter pain medicine. When he had flare ups he would not want to move around much; instead he would just stay home. Physical examination revealed flexion to 70 degrees with no objective evidence of painful motion and extension to 0 degrees with no objective evidence of painful motion. Repetitive use testing revealed the same findings. The examiner noted that there was functional loss with less movement than normal, along with tenderness and pain to palpation for joint line or soft tissues. The examiner found that the Veteran's right knee condition impacted his ability to work because he could not do repetitive kneeling or squatting. She noted she could not determine without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability either during flare-ups or when the joint was used repeatedly over a period of time, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Even when considering any functional loss due to pain or flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59 the Veteran's right knee disability does not reflect limitation of motion that more nearly approximates 30 degrees; hence, symptoms of the disability do not meet the criteria for a higher 20 percent rating under DC 5260. The RO's assignment of a 10 percent rating under DC 5260 was based on the Veteran's symptoms of pain and functional loss, even though evidence revealed he did not have compensable limitation of flexion. Even when considering such factors, the Veteran's right knee disability does not reflect functional impairment congruent with a rating higher than already assigned for limitation of flexion. The Board concludes the Veteran is entitled to a separate 10 percent rating under DC 5261 for limitation of extension of the right knee. On October 2009 VA examination, the examiner found that the Veteran experienced pain with extension from 10 degrees to 0 degrees. The Veteran reported experiencing functional loss during flare ups of only being able to walk about 50 feet and having pain of 9 out of 10 with swelling. The January 2014 examiner found that the Veteran had functional loss with less movement than normal and tenderness and pain to palpation for joint line or soft tissues. Resolving any reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted for limitation of extension from May 1, 2009. However, a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for limitation of extension under DC 5261. Even when considering DeLuca factors, the evidence does not show right knee extension limited to 15 degrees. Thus, the Veteran is not entitled to a higher 20 percent rating for limitation of extension under Code 5261. VAOPGCPREC 9-2004. The Board further concludes the Veteran is entitled to a separate 10 percent rating for slight recurrent subluxation or lateral instability of the right knee under DC 5257 from May 1, 2009. A May 2013 VA treatment record reflects the Veteran reported having several episodes of sudden knee pain that on one occasion resulted in a fall. On October 2009 VA examination, the Veteran reported intermittent instability of the knee. He indicated that he wore a metal brace for prolonged walking or strenuous activities. At the February 2013 Board hearing, the Veteran reported that if he is on his knee for too long, it will feel like Jell-O and that a few times he has slipped and fallen on the stairs. He reported wearing a brace when the knee really swelled up and "became flimsy." He wore the brace at work a lot, but did not like to wear it because he felt like it cut off his circulation. Board Hearing Tr. at 21-22. As noted above, the Veteran is competent to describe symptoms of instability and the Board finds his statements to be credible, as they are supported by evidence that he wears a knee brace. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Resolving the benefit of the doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to a separate 10 percent rating for slight instability of the right knee from May 1, 2009. A preponderance of the evidence is against a finding that he is entitled to a higher 20 percent rating for moderate instability of the right knee from May 1, 2009. The record has not revealed any objective evidence of right knee instability from May 1, 2009. On October 2009 and January 2014 VA examinations, all stability testing completed revealed normal findings. X-rays taken during the January 2014 VA examination revealed no evidence of patellar subluxation. A February 2013 VA treatment record reflects stable ligaments, while a May 2013 record indicates that no instability was shown on physical examination. Since the record does not contain any objective testing showing right knee laxity or recurrent subluxation from May 1, 2009, the Board concludes that a preponderance of the evidence is against a finding that instability of the right knee more nearly approximates moderate symptomatology. The Board has also considered whether the Veteran is entitled to a separate rating under DC 5258 for dislocated semilunar cartilage or 5259 for removal of semilunar cartilage. Although records prior to the Veteran's March 2009 surgery indicate he might have had a meniscal tear; post-operative records, including the results of an August 2011 VA MRI, reflect that he had a synovial fibroma and that there was no significant cartilage losses and no injuries to the menisci or the ligaments. Therefore, the evidence does not reflect removal of semilunar cartilage that would warrant a 10 percent rating under DC 5259, or dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint that would warrant a 20 percent rating under DC 5258. The Board has also considered whether any further staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that limitation of flexion and extension of the right knee and instability has been consistent with the ratings assigned herein. The record does not indicate any significant increase or decrease in such symptoms other than reflected by the ratings the Board is assigning. Accordingly, further staged ratings are not warranted for the right knee disability. In summary, the Board concludes that from May 1, 2009, the Veteran is entitled to separate 10 percent (but no higher) ratings under DCs 5257 and 5261, but is not entitled to a rating in excess of 10 percent for limitation of flexion under DC 5260. 2. Increased Rating - Back Disability The July 2008 rating decision awarded the Veteran service connection for a lumbar spine disability, evaluated as 20 percent disabling from April 7, 2008. In a September 2012 decision, the AOJ decreased the Veteran's rating to 10 percent, effective May 7, 2012. The Veteran contends he is entitled to higher ratings both prior to and from May 7, 2012. The Veteran's lumbar spine disability is currently evaluated under 38 C.F.R. § 4.71a, DC 5243. Intervertebral disc syndrome (preoperatively or postoperatively) 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 (DC 5243), whichever method results in the higher evaluation. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 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 the 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5) explains that unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating 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 with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent disability rating with incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Initially, the Board resolves any reasonable doubt in the Veteran's favor and concludes that he is entitled to a higher 20 percent rating for his lumbar spine disability from May 7, 2012. At the February 2013 Board hearing the Veteran reported that he has difficulty getting out of bed in the morning largely because of stiffness in his back and that it takes him 35 to 45 minutes to get out of bed. He reported that he can only take sick leave from work 5 times a year, but that if he was able to take sick leave more frequently, he would likely stay at home at least once a month. Board Hearing Tr. at 2-4, 6. On January 2014 VA examination, forward flexion during repetitive use testing was to 65 and the examiner noted that the Veteran had functional impairment based on less movement than normal, weakened movement, and disturbance of locomotion. The examiner explained that the Veteran's lumbar spine disability restricted his ability to lift objects, to walk long distances, to bend, and to stoop. This evidence clearly reflects that the Veteran's lumbar spine disability has caused impairment to 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance.'" See Mitchell, 25 Vet. App. at 37. Therefore, he is entitled to an increased 20 percent rating from May 7, 2012 based on functional impairment caused by pain. What remains for consideration is whether the Veteran is entitled to a rating in excess of 20 percent at any time during the appeal period. In his January 2008 notice of disagreement, the Veteran reported that he felt discomfort in his back every day no matter in what activities he engaged. On March 2008 VA examination the Veteran reported having mid lumbar spine pain and stiffness on a daily basis. He did not experience any radiation of pain. He was limited in his ability to walk more than 45 minutes without developing back pain. The examiner noted that the back disability caused severe effects on sports and moderate effects on exercise, shopping (heavy lifting/carrying), recreation, and traveling (sitting for prolonged periods of time). The back disability did not have any significant effects on his occupation. He reported having daily pain with no flares and no incapacitating episodes in the last 12 months. Physical examination revealed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 45 degrees. Pain was noted during range of motion at the extremes of flexion, extension and right lateral flexion. There was no additional limitation following repetition. There was flattening of the normal lumbar lordosis. There was no paraspinal tenderness, but there was paraspinal tension. Sensory testing was intact to light touch in the lower extremities. A September 2008 VA physical therapy record reflects the Veteran had constant central low back pain that was aggravated by lifting and bending. The Veteran was unable to run, participate in sports, or stand, walk, or sit for prolonged periods. He reported having pain at 6 out of 10, along with tightness and aching. The treating provider noted that the Veteran's back motion occurred segmentally down to L4 then stopped. There was slight flattening of the normal lumbar lordosis. The Veteran's range of motion was significantly limited due to pain with forward flexion. Sensation in the lower extremities was intact to light touch. The Veteran reported that his back pain decreased to 3 out of 10 after he completed stretching poses. The therapist noted that his prognosis was guarded. A June 2009 VA record reflects that the Veteran entered the clinic limping due to back pain radiating to his right hip. August and September 2009 physical therapy records reflect the Veteran was experiencing increased back pain after being in a motor vehicle accident. The Veteran rated his pain as an 8 or 9 out of 10. On May 2012 VA examination, the Veteran reported that back pain was present daily of varying degrees. He indicated that pain was located in the upper and mid lumbar regions without symptoms of radiculopathy. He experienced flare ups twice a month that lasted 1 to 2 days where his pain would be worse than usual without additional symptoms. He reported having to call in sick at times during flare ups and having a hard time getting out of bed. On January 2014 VA examination, the Veteran reported that his back hurts daily and that he took over-the-counter medications for his back pain. When he had flare ups he tended to stay at home and rest. Sensory examination of the lower extremities was normal and the examiner found the Veteran did not have any radiculopathy or other neurological abnormalities. There was no ankylosis shown. The examiner was unable to determine without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability either during flare-ups or when the joint is used repeatedly over a period of time, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In examining this evidence under the General Rating Formula, the Board concludes that it does not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Even when considering the Veteran's complaints of pain with functional loss, the evidence most nearly approximates forward flexion between 30 and 60 degrees, which is included in the criteria for the 20 percent rating currently assigned. There is also no evidence that the Veteran has favorable ankylosis of the entire thoracolumbar spine. Although a September 2008 VA physical therapy record indicates that back motion stopped at L4, this evidence does not more nearly approximate favorable ankylosis of the entire thoracolumbar spine; hence, a preponderance of the evidence is against a finding that the Veteran is entitled to a higher 40 percent rating under the General Rating Formula. Regarding the Formula for Rating Based on Incapacitating Episodes, the evidence also does not reflect findings warranting a higher 40 percent rating. Although the Veteran has reported resting and staying in bed when he has flare ups, he has indicated that he has not had bed rest prescribed by a physician. Thus, a preponderance of the evidence is against a finding that the Veteran experienced incapacitating episodes of at least four-week duration during a twelve month time period. The Board has also considered whether there are associated objective neurologic abnormalities, including bowel or bladder impairment, which might warrant separate ratings under an appropriate diagnostic code. As described above, there is no evidence of any such impairment; hence, the Veteran is not entitled to a separate rating in this regard. The Board has also considered whether any further staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the Veteran's lumbar spine disability has been consistent throughout the appeal period with the rating assigned herein. The record does not indicate any significant increase or decrease in such symptoms. Accordingly, a staged rating is not warranted for the lumbar spine disability. In summary, the Board concludes that a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent for his lumbar spine disability at any point during the appeal period. 3. Extraschedular Rating The Board has also considered whether referral for extraschedular ratings is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 38 C.F.R. § 3.321(b). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). As explained in detail above, the Veteran's right knee disability been manifested by symptoms of limitation of flexion and extension with pain causing compensable functional loss and slight recurrent subluxation. His lumbar spine disability has been manifested by limitation of motion with pain, weakened movement, and disturbance of locomotion causing functional loss. The pertinent diagnostic codes in 38 C.F.R. § 4.71a combined with DeLuca considerations appropriately contemplate the Veteran's right knee and lumbar spine symptoms. Hence, the rating criteria reasonably describe these disabilities. In short, there is no indication in the record that the average industrial impairment from the Veteran's right knee or lumbar spine disability would be in excess of that contemplated by the ratings provided in the rating schedule. The Veteran's right knee and lumbar spine disability pictures are not shown to be exceptional or unusual and referral for assignment of an extraschedular evaluation is not in order. Under 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. Here, the Veteran has not argued that extraschedular consideration is warranted for his disabilities on a collective basis and the record does not reasonably raise such a theory. See Yancy v. McDonald, 27 Vet. App. 484 (2016). Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Prior to March 13, 2009, an initial compensable rating for limitation of motion of the right knee is denied. Prior to March 13, 2009 and from May 1, 2009, an initial separate 10 percent, but no higher, rating for subluxation of the right knee is granted, subject to the regulations governing payment of monetary awards. From May 1, 2009, an initial rating in excess of 10 percent for limitation of flexion of the right knee is denied. From May 1, 2009, an initial separate 10 percent, but no higher, rating for limitation of extension of the right knee is granted, subject to the regulations governing the payment of monetary awards. From May 7, 2012, an initial 20 percent rating for the lumbar spine disability is granted, subject to the regulations governing payment of monetary awards. Throughout the appeal period (from April 7, 2008), an initial rating in excess of 20 percent for the lumbar spine disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs