Citation Nr: 1756620 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-48 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for a right knee disability based on limitation of motion. 2. Entitlement to an initial separate disability rating in excess of 20 percent for right knee instability, from February 5, 2009. 3. Entitlement to a disability rating in excess of 10 percent for a left knee disability. 4. Entitlement to a rating in excess of 40 percent for a musculoskeletal low back disability with degenerative changes (back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from October 1992 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying the claims for an increased rating for the bilateral knee disabilities and back disability currently on appeal. Jurisdiction of the case is now with the RO in Chicago, Illinois. The appeal was previously remanded by the Board in March 2014, March 2016, and March 2017, for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now again before the Board. In July 2017, the RO issued a rating decision which granted a separate evaluation for right knee instability as 20 percent disabling, effective as of February 5, 2009. In addition, the RO increased the Veteran's evaluation for his back disability to 40 percent disabling, effective as of February 5, 2009. When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). As such, these issues remain on appeal before the Board and have been characterized accordingly above. The Board notes that in his December 2009 substantive appeal, the Veteran requested a hearing. The Veteran was accordingly scheduled for a hearing before a Veterans Law Judge in January 2012; however, he failed to report to the hearing. To date, the Veteran has not requested that his hearing be rescheduled. Therefore, the Board finds the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.702(d) (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). FINDINGS OF FACT 1. For the period on appeal, the Veteran's right knee manifested with painful motion and with moderate symptoms of subluxation or lateral instability, but without ankylosis, flexion limited to 45 degrees or less, extension limited to 10 degrees or less, or removal of or objective findings related to the semilunar cartilage. 2. As of February 5, 2009, the Veteran was shown to have moderate instability of his right knee. 3. For the period on appeal, the Veteran's left knee manifested with pain, but without symptoms of subluxation or lateral instability, ankylosis, flexion limited to 45 degrees or less, extension limited to 10 degrees or less, or removal of or objective findings related to the semilunar cartilage. 4. The Veteran has been assigned a 20 percent disability rating for his right knee since May 1996; that rating has protected status. 5. The Veteran has been assigned a 10 percent disability rating for his left knee since May 1996; that rating has protected status. 6. The Veteran's back disability has not produced ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a disability rating in excess of 20 percent for a right knee disability have not been met, and no additional separate initial rating is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103a (West 2014); 38 C.F.R. §§ 4.40, 4.44, 4.59, 4.71(a), Diagnostic Codes 5003, 5257, 5260, 5261, 5262 (2017). 2. From February 5, 2009, the criteria for the assignment of an initial disability rating in excess of 20 percent for the service-connected right knee instability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). 3. For the period on appeal, the criteria for a disability rating in excess of 10 percent for a left knee disability have not been met, and no separate initial rating is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103a (West 2014); 38 C.F.R. §§ 4.40, 4.44, 4.59, 4.71(a), Diagnostic Codes 5003, 5257, 5260, 5261, 5262 (2017). 4. The criteria for an evaluation in excess of 40 percent rating for back disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. Lastly, the record reflects substantial compliance with the Board's March 2017 remand directives. See Stegall, 11 Vet. App. 268, 271 (1998). These directives were adequately followed; thus, the Board finds substantial compliance has been shown. II. Increased Schedular Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2016). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 USCA § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2016); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Knee Disabilities The Veteran's bilateral knee disabilities are rated under Diagnostic Code 5262. A separate 20 percent evaluation has also been assigned for the right knee under Diagnostic Code 5257. Diagnostic Code 5262 is for impairment of the tibia and fibula. A 10 percent rating requires malunion with slight knee or ankle disability. Malunion with moderate knee or ankle disability merits a 20 percent rating, and malunion with marked knee or ankle disability is assigned a 30 percent rating. The maximum rating of 40 percent is reserved for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a. The Board must also consider other diagnostic codes that relate to the knee. According to Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Id at Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2016). 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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 at Diagnostic Code 5261. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). i. Right Knee Disability As previously noted, the Veteran's right knee disability is currently rated as 20 percent disabling under Diagnostic Code 5262 for malunion of the tibia and fibula resulting in moderate knee or ankle disability and as 20 percent disabling under Diagnostic Code 5257 for recurrent subluxation or lateral instability, from February 5, 2009. The Veteran's right knee disability has been rated as 20 percent disabling since May 1996 under Diagnostic Code 5262, and as such, this specific rating has protected status. See 38 C.F.R. § 3.951(b) (2014) (providing that a disability which has been continuously rated at or above any evaluation of disability for 20 or more years will not be reduced to less than that such evaluation unless there is a showing that that rating was based on fraud). The Veteran's 20 percent rating for right knee instability under Diagnostic Code 5257 has only been in effect since February 2009, and as such, is not afforded protected status. On VA examination in May 2009, the Veteran reported weakness, stiffness, swelling, heat, instability, giving way once a week, locking, fatigability, lack of endurance, loss of motion, and deformity. He described flare-ups as severe, occurring twice a month and lasting for two hours. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees. 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. As such, there is evidence of some limited motion upon flexion of the right knee. There was no additional loss of motion with repetitive testing due to pain, fatigue, weakness, or lack of endurance. The examiner noted lateral stability, and no crepitation, effusion, or meniscal signs. On VA examination in June 2014, the Veteran reported that his right knee will give out twice per month, locks up a couple times when trying to sleep, and it grinds. He reported that the pain is around the knee cap. The examiner noted that the right knee may have trace effusion, and has three very faint lap scars that are well-healed and barely visible and non-tender. There was no objective tenderness to palpation. The Veteran exhibited full range of motion. McMurray testing was negative. The examiner noted no additional limitation of motion upon repetitive testing; however, the examiner noted that the Veteran exhibited pain on movement and disturbance of locomotion. The knee was stable. The examiner noted evidence of slight recurrent patellar subluxation/dislocation. On VA examination in June 2017, range of motion testing revealed flexion to 125 degrees and extension to 0 degrees, with pain noted. The examiner noted that the range of motion itself did not contribute to functional loss. The examiner further noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, as well as crepitus. The Veteran did not exhibit muscle atrophy or ankylosis of the right knee. The examiner noted moderate recurrent subluxation, as well as joint stability. The examiner also indicated that the scar located on the Veteran's right knee measured 1.4 cm in length and 0.2 cm in width, and was stable. The Board will first address whether the Veteran is entitled to an evaluation in excess of 20 percent under Diagnostic Code 5262 at any time during the pendency of this claim for his service-connected right knee disability. As previously noted, an evaluation of 20 percent is warranted for impairment of the tibia and fibula with malunion with moderate knee or ankle disability. See 38 C.F.R. § 4.71a. A higher evaluation of 30 percent is warranted for impairment of the tibia and fibula with malunion with marked knee or ankle disability. Id. The highest available evaluation of 40 percent is warranted for impairment of the tibia and fibula with nonunion of, with loose motion, requiring brace. Id. The July 2009 VA examination report reflects symptoms of a constant sharp pain of the right knee with complaints of weakness, stiffness, swelling, heat, instability, giving way once per week, locking, fatigability, lack of endurance, loss of motion and deformity. An objective examination revealed a normal gait without crepitation, clicking, instability, patellar abnormality, meniscus abnormality or limitation of extension. Flexion was limited to 120 degrees. The Veteran's right knee pain was noted to result in no significant effects on the Veteran's usual occupation. The June 2014 VA examination report also reflects continued complaints of pain in the right knee with dislocation and popping. The Veteran's reported "dislocation" was noted to actually be subluxation. Stability testing was normal. The knee was noted to give out twice per month with locking a couple of times per week. The Veteran also reported grinding. Crepitus was noted with possible trace effusion. Examination revealed flexion to 130 degrees with normal extension. Flexion was limited to 120 degrees after repetitive motion. Functional loss was noted to be pain on movement and disturbance of locomotion. Finally, the June 2017 VA examination reflects continued complaints of locking and pain. These symptoms were worse during flare-ups with increased swelling. However, the Veteran was noted to be able to walk 2 miles with flexion to 125 degrees and full extension to 0 degrees. There was no ankylosis and objective testing did not reveal instability. This condition resulted in functional impairment due to the Veteran having to sit down and rest and get off of his feet or stretch out his legs on occasion while waiting for his pain to get more tolerable. The above evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 20 percent under Diagnostic Code 5262 at any time during the pendency of this appeal. Despite his pain and symptoms of crepitus and occasional locking, he has maintained a significant range of motion and is still capable of work. While he does have to sit or stretch at times to ease his pain, these symptoms are more appropriately characterized as a "moderate" knee disability rather than a "marked" knee disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Likewise, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent for his recurrent subluxation or lateral instability under Diagnostic Code 5257 at any time during the pendency of this claim. While there is evidence of subluxation, there is no evidence to suggest that this results in symptomatology better characterized as "severe" rather than as "moderate." See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Objective testing has found the right knee to be stable, and despite the evidence of intermittent subluxation, the Veteran has continued to be able to work and ambulate for up to 2 miles. As such, the Veteran's symptomatology is more appropriately characterized as "moderate" and an evaluation in excess of 20 percent is not warranted. Finally, the Board has considered whether the Veteran may be entitled to additional benefits under any other applicable diagnostic code. The record does not reflect that the Veteran suffers from ankylosis of the right knee, dislocated or removed semilunar cartilage or genu recurvatum. As such, separate ratings are not warranted under Diagnostic Codes 5256, 5258-59 or 5263. See 38 C.F.R. § 4.71a. The record also reflects that a separate evaluation is not warranted based on limitation of motion. Even when taking into consideration functional impairment and repetitive motion, the Veteran has maintained full extension to 0 degrees and flexion to 120 degrees. A 10 percent rating is not warranted for limitation of flexion until there is limitation to 45 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating for limitation of extension is warranted when there is limitation to at least 10 degrees. Id at Diagnostic Code 5261. The record reflects that the Veteran has maintained a range of motion far in excess of that considered for a separate evaluation based on limitation of motion, and as such, separate ratings are not warranted under these codes. It is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating. 38 C.F.R. § 4.59. This provision is applicable to any orthopedic disability. See Burton v. Shinseki, 25 Vet. App. 1 (2010); see also 38 C.F.R. § 4.59. In the present case, the Veteran's pain has been considered in the application of the current 20 percent disability rating under Diagnostic Code 5262. As such, any assignment of a separate disability rating based purely on painful motion would result in "pyramiding." Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also notes that a separate evaluation for the Veteran's scar on the right knee is not warranted, as the scar was not found to be unstable or painful. Under Diagnostic Code 7804, one or two scars that are unstable or painful are rated 10 percent disabling. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Thus, a separate evaluation under Diagnostic Code 7804 is not warranted. Finally, the Board recognizes that the Veteran believes that he is entitled to a higher evaluation for his service-connected right knee disability. However, the Veteran has not provided VA with any evidence, and the record does not contain any evidence, to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as the degree of severity of his service-connected right knee disability. The record does not contain any competent evidence to demonstrate that the Veteran meets the criteria for a higher or separate rating under any applicable code under the rating schedule. As such, the Veteran's assertions fail to demonstrate that a higher rating is warranted at any time during the pendency of this appeal. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim for a higher disability rating for a right knee disability during the period on appeal, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. ii. Left Knee Disability As previously noted, the Veteran's left knee disability is currently rated as 10 percent disabling under Diagnostic Code 5262. The Veteran filed his claim for an increased rating for a left knee disability in February 2009, which had been rated as 10 percent disabling from May 10, 1996, under Diagnostic Code 5262 as malunion of the tibia and fibula resulting in slight knee or ankle disability. As the Veteran's left knee disability has been so rated since May 1996, the 10 percent rating has protected status. See 38 C.F.R. § 3.951(b) (2014) (providing that a disability which has been continuously rated at or above any evaluation of disability for 20 or more years will not be reduced to less than that such evaluation unless there is a showing that that rating was based on fraud). On VA examination in May 2009, the Veteran reported occasional weakness, stiffness, rare swelling, heat, instability, locking once every two months, fatigability, lack of endurance, loss of motion, and deformity. He denied redness, instability, or giving way. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees. There was no additional loss of motion with repetitive testing due to pain, fatigue, weakness, or lack of endurance. The examiner noted lateral stability, and no crepitation, effusion, or meniscal signs. On VA examination in June 2014, the Veteran reported his left knee does not lock or give out, but pain is in the front and to the lateral edge of the knee cap. The Veteran exhibited full range of motion. McMurray was negative. The examiner noted no additional limitation of motion upon repetitive testing; however, the examiner noted that the Veteran exhibited pain on movement. The knee was stable. The examiner noted no evidence of recurrent patellar subluxation/dislocation. On VA examination in June 2017, range of motion testing revealed flexion to 130 degrees and extension to 0 degrees, with pain noted. The examiner noted that the range of motion itself did not contribute to functional loss. The examiner further noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, as well as crepitus. The Veteran did not exhibit muscle atrophy or ankylosis of the left knee. The examiner noted no recurrent subluxation and that the joint was stable. The examiner did not note any scars located on the left knee. The above evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 10 percent under Diagnostic Code 5262 at any time during the pendency of this appeal. Despite his pain and other reported symptoms, he has maintained a significant range of motion and is still capable of work. Also, while the Veteran has reported symptoms of instability, the record reflects that objective examination has found the left knee to be stable and the Veteran is capable of ambulation of up to 2 miles. While he does have to sit or stretch at times to ease his pain, these symptoms are more appropriately characterized as a "slight" knee disability rather than a "moderate" knee disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Board has also considered whether the Veteran may be entitled to additional benefits under any other applicable diagnostic code. The record does not reflect that the Veteran suffers from ankylosis of the right knee, dislocated or removed semilunar cartilage or genu recurvatum. As such, separate ratings are not warranted under Diagnostic Codes 5256, 5258-59 or 5263. See 38 C.F.R. § 4.71a. Also, as mentioned in the preceding paragraph, while the Veteran has reported symptoms such as instability, objective testing has found the left knee to be stable. As such, a separate evaluation under Diagnostic Code 5257 for recurrent subluxation or lateral instability is not warranted. See 38 C.F.R. § 4.71a. The record also reflects that a separate evaluation is not warranted based on limitation of motion. Even when taking into consideration functional impairment and repetitive motion, the Veteran has maintained full extension to 0 degrees and flexion to 130 degrees. A 10 percent rating is not warranted for limitation of flexion until there is limitation to 45 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating for limitation of extension is warranted when there is limitation to at least 10 degrees. Id at Diagnostic Code 5261. The record reflects that the Veteran has maintained a range of motion far in excess of that considered for a separate evaluation based on limitation of motion, and as such, separate ratings are not warranted under these codes. As discussed in the previous section, it is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating. 38 C.F.R. § 4.59. This provision is applicable to any orthopedic disability. See Burton, 25 Vet. App. at 1; see also 38 C.F.R. § 4.59. In the present case, the Veteran's pain has been considered in the application of the current 10 percent disability rating under Diagnostic Code 5262. As such, any assignment of a separate disability rating based purely on painful motion would result in "pyramiding." Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban, 6 Vet. App. at 262. Finally, the Board recognizes that the Veteran believes that he is entitled to a higher evaluation for his service-connected left knee disability. However, as previously noted, the Veteran has not provided VA with any evidence, and the record does not contain any evidence, to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as the degree of severity of his service-connected left knee disability. The record does not contain any competent evidence to demonstrate that the Veteran meets the criteria for a higher or separate rating under any applicable code under the rating schedule. As such, the Veteran's assertions fail to demonstrate that a higher rating is warranted at any time during the pendency of this appeal. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim for a higher disability rating for a left knee disability during the period on appeal, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. B. Back Disability The Veteran also contends that he is entitled to an increased rating for his back disability. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Veteran's back disability is currently rated as 40 percent disabling under Diagnostic Code 5242-5237 for degenerative arthritis of the spine and for lumbosacral strain. The General Rating Formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. For purposes of this case, the Board notes that under the General Rating Formula for diseases and injuries of the spine, ratings are assigned, in pertinent part, as follows: A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 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, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are 0 to 30 degrees. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been defined as stiffening 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). Intervertebral disc syndrome (preoperatively or postoperatively) is 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, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). In this case, the Veteran was afforded VA examinations in May 2009, June 2014, and June 2017 to assess the severity of his back disability. These examinations and accompanying medical opinions show that the Veteran does not meet the criteria for a higher rating. On VA examination in May 2009, the Veteran's history was reviewed. The examiner noted that the Veteran's posture, head position, and gait were normal. No muscle spasm, atrophy, or guarding. Range of motion testing revealed full range of motion. The examiner noted that there was no additional limited range of motion on repetitive testing due to pain, fatigue, weakness, or lack of endurance. The examiner further noted that the Veteran reported no episodes of incapacitation related to his back disability during the past two years. On VA examination in June 2014, the Veteran's history was reviewed again. Range of motion testing revealed flexion to 85 degrees, with pain at 85 degrees; extension to 25 degrees, with pain at 25 degrees; right lateral flexion to 30 degrees, with pain at 30 degrees; left lateral flexion to 30 degrees, with no pain; bilateral lateral rotation to 30 degrees, with pain at 25 degrees bilaterally. The examiner noted that there was no additional limitation in range of motion of the back following repetitive testing; however, it was noted that the Veteran exhibited pain on movement, as well as interference with sitting, standing, and/or weight-bearing. In addition, the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. No tenderness in paraspinals, and SI joints were non-tender. The Veteran did not exhibit muscle spasm or guarding. The examiner noted that there was no radicular pain or any other symptoms due to radiculopathy. He also noted that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. On VA examination in June 2017, range of motion testing revealed flexion to 90 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 20 degrees. The Veteran reported flare-ups and estimated a decline in range of motion by 50 percent to 75 percent, resulting in flexion being potentially reduced to 30 degrees or less. The Veteran did not exhibit guarding or muscle spasm. Additionally, the Veteran did not have muscle atrophy. The examiner noted that there was no radicular pain or any other symptoms due to radiculopathy. The examiner also noted that there was no ankylosis of the spine, and that the Veteran did have IVDS of the thoracolumbar spine; however, the Veteran did not have any episodes of acute signs of symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Having carefully reviewed the record, the Board has concluded that these findings do not support a 50 percent rating, as the evidence demonstrates that the Veteran does not suffer from ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating IVDS. A higher disability evaluation is not warranted under the formula for IVDS based on incapacitating episodes, as the evidence reflects that the Veteran has not had any incapacitating episodes. See id. Additionally, the Board has considered 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 also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran does not suffer from ankylosis. As such, the Board concludes that the back pain is not of such severity as to merit a higher rating for any period on appeal even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question. See 38 C.F.R. § 4.71a, Note(1). As the medical evidence does not show such impairment, the Board finds that a separate evaluation for associated neurological impairment is not warranted at this time. Therefore, additional disability ratings are not for application in the instant appeal. The Board recognizes that the Veteran believes he is entitled to a higher rating for his service-connected spine disability. However, at no time has the Veteran provided any medical or lay evidence to demonstrate that he meets the schedular criteria for a rating in excess of 40 percent - namely, there is no evidence of fixation (or ankylosis) of the entire thoracolumbar spine. As such, the Veteran's assertions fail to demonstrate that a higher schedular rating is warranted at any time during the pendency of this appeal. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Accordingly, the Veteran's request for an increased rating is denied. ORDER Entitlement to a disability rating in excess of 20 percent for a right knee disability is denied. Entitlement to an initial separate disability rating in excess of 20 percent for right knee instability, from February 5, 2009, is denied. Entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 40 percent for a back disability is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs