Citation Nr: 1802896 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 09-48 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a higher initial rating for lumbar spine degenerative joint disease (DDD), and lumbar discectomy, rated as 10 percent disabling. 2. Entitlement to higher initial ratings for right knee subluxation associated with degenerative joint disease, right patella, rated as 20 percent disabling prior to May 16, 2017, and rated as 30 percent disabling therefrom. 3. Entitlement to a higher initial rating for left knee subluxation associated with degenerative joint disease of the left knee status post medial patellofemoral ligament reconstruction, rated as 20 percent disabling. 4. Entitlement to a higher rating for degenerative joint disease of the left knee, rated as 10 percent disabling. 5. Entitlement to a higher rating for degenerative joint disease of the right knee, rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from January 1995 to January 1999; January 2002 to November 2002; and March 2006 to December 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2009 and May 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in August 2014 and April 2017 for further development. The Veteran presented testimony at a Board hearing in June 2014. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative joint disease and lumbar discectomy is not manifested by: forward flexion of the thoracolumbar spine between 30 and 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome resulting in incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. 2. Prior to May 16, 2017, the Veteran's right knee subluxation associated with degenerative joint disease, right patella, was manifested by no more than moderate recurrent patellar dislocation. Effective May 16, 2017, it is manifested by severe recurrent patellar dislocation. 3. Throughout the rating period on appeal, the Veteran's left knee subluxation associated with degenerative joint disease of the left knee status post medial patellofemoral ligament reconstruction, is manifested by no more than moderate recurrent patellar dislocation. 4. Throughout the rating period on appeal, the Veteran's degenerative joint disease of the left knee has not been manifested by leg flexion limited to 30 degrees, or leg extension limited to 15 degrees. 5. Throughout the rating period on appeal, the Veteran's degenerative joint disease of the right knee has not been manifested by leg flexion limited to 30 degrees, or leg extension limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected lumbar spine degenerative joint disease and lumbar discectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2016). 2. Prior to May 16, 2017, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's right knee subluxation associated with degenerative joint disease, right patella have not been met. Effective May 16, 2017, the Veteran is in receipt of a 30 percent rating, which is the maximum allowable rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Code 5257 (2016). 3. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's left knee subluxation associated with degenerative joint disease of the left knee status post medial patellofemoral ligament reconstruction, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Code 5257 (2016). 4. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5256, 5258-5262 (2016). 5. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5256, 5258-5262 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In a July 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2016). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2016). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in November 2008, April 4009, December 2012, August 2015, and May 2017. Collectively, these examination reports are fully adequate. The examiners reviewed the claims or were otherwise made aware of the Veteran's medical history in conjunction with the examinations. The duties to notify and to assist have been met. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where, as in the case of the Veteran's low back disability, right knee instability, and left knee instability, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). Spine The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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 (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Intervertebral disc syndrome is rated under Diagnostic Code 5243. Pursuant to that code, a 60 percent disability rating is the highest available rating and is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran underwent a VA examination in November 2008. He reported chronic low back pain with right lower extremity radiculopathy down the back of his leg to his big toe. He reported constant low back pain which he rated 4/10. He stated that it could increase to 10. He stated that the pain would radiate down to the right big toe down the back of his leg. He stated that he has been fatigued since his back problem. He did not participate in any recreational activities because of his back pain. He could walk and ride a bicycle and most recently the pain was a 6-7 on a 1-10 scale, increasing to a 10 intermittently. He reported that he had been incapacitated with low back pain 4 times in the past year. He stated that he had been in the emergency room twice for back pain in 2007. Upon examination, there was mild tenderness over the paralumbar spinal muscles with mild increase in muscular tone. There was positive straight leg raising on the right at 75 degrees and on the left at 80 degrees. He achieved flexion from 0-75 (with pain beginning at 60 degrees); extension from 0-30 degrees (with pain at 30 degrees); right and left lateral flexion from 0-30 degrees (with end range of motion pain); and rotation from 0-30 degrees bilaterally. There was increased fatigability and decreased endurance (but no additional limitation of motion) with repetitive movements. He was able to walk on heels and toes. There was no muscular atrophy of the lower extremities. X-rays revealed a normal lumbar spine. At the Veteran's December 2012 VA examination, he stated that he was not able to walk long distances due to severe pain. He stated that he had a lumbar discectomy with disc implants in the L5-S1 area in August 2010. The Board notes that the Veteran has been granted a 100 percent rating effective August 26, 2010 to November 1, 2010. The Veteran denied any post-surgical complications. He reported that he could walk 2-3 miles without severe pain. However, he did have to take medication every day. He reported decreased range of motion. He denied any radiation of pain from the lumbar area. He denied any lost time from employment in last 12 months. He reported flare-ups of pain precipitated by bike riding, hiking, and prolonged sitting (over 3 hours) Upon examination, the Veteran achieved forward flexion to 90 degrees or greater (with objective evidence of painful motion at 90 degrees or greater); extension to 20 degrees (with pain at 20 degrees); right lateral flexion to 15 degrees (with pain at 15 degrees); left lateral flexion to 20 degrees (with pain at 20 degrees); and right and left rotation to 30 degrees or greater (with pain at 30 degrees or greater). There was no additional limitation of motion following three repetitions of motion. There was no muscle spasm or guarding. There was no muscle atrophy. There was no radiculopathy. Straight leg raising was negative bilaterally. The Veteran had intervertebral disc syndrome; but he had not had any incapacitating episodes in the past 12 months. He did not use any assistive devices. The Veteran was noted to have functional limitation in that he had limited ability to lift more than 50 pounds and twist and bend at waist. At the Veteran's August 2015 VA examination, he stated that prior to his August 2010 surgery, he had chronic low back pain with sciatic pain radiating down both legs, as well as numbness in the bottom of both feet. Following surgery, the numbness in his feet resolved; and the back and leg pain improved; but they did not fully resolve. At the time of the examination, he reported constant pain in his low back, which was aggravated by prolonged immobility. He stated that after he has been sleeping (lying down) for 6 hours, he must get up and move about to help decrease the pain in his low back. He stated that with his current job (working in recruiting for Marine Corps officers) he sits for most of the time. He stated that he would normally get up and move about every 30 minutes. He reported that in December 2014, he had surgery on his left knee. While he was doing the post-operative rehabilitation, he would have increases in low back pain, as he was using his back for stability to rehab his left knee. At the time of the examination, he denied any numbness, tingling or weakness in his legs related to his low back condition. He reported flare-ups in which his back pain is worse after sitting or lying down for prolonged periods of time. He stated that he is limited with bending and he is restricted to no lifting over 50 pounds. Upon examination, the Veteran achieved forward flexion from 0 to 65 degrees; extension from 0 to 30 degrees; right lateral flexion from 0 to 15 degrees; left lateral flexion from 0 to 10 degrees; right lateral rotation from 0 to 25 degrees; and left lateral rotation from 0 to 25 degrees. He experienced pain with forward flexion, right lateral flexion, and left lateral flexion. There was no evidence of pain with weight bearing. There was no additional limitation of function or range of motion after three repetitions of motion. There was tenderness to palpation over the paraspinal soft tissues at the L4-S1 levels. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time, or with flare-ups. There was no guarding or muscle spasm. Muscle strength testing, deep tendon reflexes, and sensory examination all yielded normal findings. Straight leg raising was negative. There was no evidence of radiculopathy. There was no intervertebral disc syndrome. The Veteran did not use any assistive devices. The examiner opined that the disability would impact the Veteran's ability to work in that he has increased low back pain with prolonged immobility (sitting). In an April 2016 addendum, the August 2015 VA examiner restated the Veteran's range of motion and noted that the Veteran reported constant pain in his low back, which became more intense with prolonged immobility. The examiner stated that there were no objective findings of weakened movement, excess fatigability, incoordination, or swelling. He stated that flare-ups of pain did not significantly alter the lumbar range of motion. There were no areas of ankyloses of the thoracolumbar spine. The examiner stated that "based on a review of the available medical records, in the last 12 months, there have been no 'incapacitating episodes' that would be defined as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that required bed rest prescribed by a physician and treatment by a physician." He also stated that based on a review of the medical records, it was impossible to determine how many periods of incapacitating episodes due to intervertebral disc syndrome have occurred since October 2008 without resorting to mere speculation, "as the available records do not include adequate detailed documentation." The examiner noted that regarding radiculopathy, based on the review of the available medical records, the Veteran began having radicular symptoms that were due to a lumbar spine condition in April 2006. The radiculopathy involved the S1 nerve root, primarily on the left side but also involved the right S1 nerve root intermittently. The examiner considered the severity to be mild to moderate. After the L5-S1 disc surgery, the radicular symptoms improved significantly. At his May 2017 VA examination, the Veteran stated that his pain had remained the same since the August 2015 examination. He reported bilateral buttock pain that he described as a sciatic pain that was intermittent. He further described it as a deep hard, ache that occurs 2-3 times a month, lasting 2-3 days, and rated at 5-6/10. He continued to report that the disability affects employment in that he has a decreased capacity for sitting for prolonged periods of time. He also reported constant low back pain described as sharp, deep, hard/ache rated at 5-6/10, with flares of sharp stabbing pain, 2-3 times a month, lasting 2-3 days, and rated at 7-8/10. It affected employment in that he had decreased capacity to bend, twist, lift, stand or sit for prolonged periods. Upon examination, the Veteran achieved forward flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion (bilaterally) and rotation (bilaterally) from 0 to 30 degrees. The examiner noted that the Veteran experienced pain with forward flexion and right lateral flexion. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no additional limitation of motion after three repetitions of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time, or with flare-ups. There was no guarding or muscle spasm. There was no muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal. Straight leg raising was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had intervertebral disc syndrome. He did not have any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Gait was normal, steady, and stable. The functional impact was that the Veteran had decreased capacity to sit, stand, or bend for prolonged periods. The examiner noted that range of motion and reports of pain were consistent with both active and passive range of motion measurements and with both weightbearing and nonweightbearing measurements, with pain noted in forward flexion at 105 degrees, and in right lateral flexion at 45 deg. There was no pain elicited to bilateral buttocks during this exam. There was no decrease in sensation from the waist down, bilaterally. Analysis In order to warrant a rating in excess of 10 percent, the Veteran's disability must be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome resulting in incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. The Veteran underwent VA examinations in November 2008, December 2012, August 2015, and May 2017. He achieved forward flexion to 75 degrees, 90+ degrees, 65 degrees, and 90 degrees, respectively. His combined range of motion of the thoracolumbar spine was 225 degrees, 205 degrees, 170 degrees, and 240 degrees, respectively. The examiners consistently noted that the Veteran's range of motion was not additionally limited by pain, flare-ups, or repetitive motion. The VA examination reports fail to reflect limitation of motion severe enough to warrant a rating in excess of 10 percent. Moreover, the Board notes that the outpatient treatment also fail to reflect limitation of motion sufficient to warrant a rating in excess of 10 percent. In regard to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. With respect to incapacitating episodes, the Board notes that at the November 2008 VA examination, the Veteran stated that he had been incapacitated with low back pain 4 times in the past year; and that he was in the emergency room twice for back pain in 2007. However, there was no indication in the treatment records that these incidents resulted in at least two weeks of acute signs and symptoms that that required bed rest prescribed by a physician and treatment by a physician. At the December 2012 examination, the Veteran acknowledged that he had not lost any time from employment in the past 12 months. The August 2015 noted (in his April 2016 addendum) that "based on a review of the available medical records, in the last 12 months, there have been no 'incapacitating episodes' that would be defined as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that required bed rest prescribed by a physician and treatment by a physician." The May 2017 VA examiner likewise found no incapacitating episodes in the past 12 months. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 10 percent for lumbar spine degenerative joint disease and lumbar discectomy, must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Knees Pursuant to Diagnostic Code 5260, a 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. Pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent rating is warranted for leg extension limited to 15 degrees. A 30 percent rating is warranted for leg extension limited to 20 degrees. A 40 percent rating is warranted for leg extension limited to 30 degrees. A 50 percent rating is warranted for leg extension limited to 45 degrees. Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. §4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Pursuant to Diagnostic Code 5259, a 10 percent rating is warranted for the symptomatic removal of semilunar for cartilage. In addition, the Board notes that ankylosis of the knee will be rated as 60 percent disabling if at an extremely unfavorable angle, in flexion at an angle of 45 degrees or more. A 50 percent rating will be assigned if the knee is in flexion between 20 degrees and 45 degrees. The disability will be rated at 40 percent if it is in flexion between 10 degrees and 20 degrees. A 30 percent rating will be assigned if there is ankylosis at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Impairment of the tibia and fibula will be rated as 40 percent disabling where there is a nonunion, with loose motion, requiring brace. A malunion of the tibia and fibula will be rated as 30 percent disabling if there is marked knee or ankle disability, 20 percent disabling if there is moderate knee or ankle disability, and 10 percent disabling if there is slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Likewise, the VA General Counsel has also held that, when x-ray findings of arthritis are present and a Veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98 (Aug. 14, 1998). Pursuant to 38 C.F.R. § 4.71a (Diagnostic Code 5257), a rating of 10 percent is warranted when the Veteran experiences slight subluxation or lateral instability. A rating of 20 percent is warranted when the Veteran experiences moderate subluxation or lateral instability. A rating of 30 percent is warranted when the Veteran experiences severe subluxation or lateral instability. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Veteran underwent a VA examination in November 2008. He reported a history of clicking in his right knee with extension and with walking. He reported pain when he wakes up in the morning; when he first gets up; and when he goes up stairs. He reported that his physical activity is limited due to back pain but not due to his knee disability. He denied instability of the knee, buckling, and locking. On examination of the knees, there was mild tenderness over the right medial joint line. There were negative Lachman and McMurray signs. There was no joint instability. The Veteran achieved range of motion from 0-140 bilaterally. There was clicking with extension, and grinding with extension over the right knee anteriorly. There was no further decreased range of motion, lack of endurance, or increased fatigability with repetitive movement. X-rays reflected that the patella appeared somewhat laterally subluxed. In April 2009, the Veteran underwent a VA examination of the left knee only. He reported that the left knee continued to be weak. He also reported pain and stiffness at times. He reported giving way at times, but no falls. He stated that the biggest problem is walking up stairs. He denied heat, redness or swelling. He reported limited endurance. He denied locking. He stated that the symptoms are a daily nuisance without flares. He used no brace and has had no surgery. He was still able to workout and exercise but with some difficulty due to his knee. Upon examination, the Veteran was able to ambulate without complaints. His gait was normal. He did not use any braces or other support devices. There was no obvious deformity. There was no evidence of muscle atrophy, swelling, joint effusion, or edema. There was no joint line or peripatellar tenderness. There was no anterior or posterior translocation. There was no medial or lateral opening. The Veteran achieved flexion from 0-140 degrees without pain when non weight bearing. He achieved flexion from 0-90 degrees with weight bearing. Range of motion with weight bearing was limited by 5/10 pain. February 2009 x-rays revealed mild degenerative changes, particularly in the left patella. At the Veteran's December 2012 VA examination, he stated that he continued to have painful motion, constant knee pain, and a right knee that feels weaker than the left knee (especially when going up stairs). He denied any locking up or giving up. He reported that the right knee will swell up approximately 3-4 times per month. He denied flare-ups. Upon examination, the Veteran achieved flexion in each knee from 0-120 degrees (with pain at 115 degrees). He achieved full extension in each knee with no evidence of pain. There was no additional limitation of motion following repetitive use testing. There was tenderness or pain to palpation for joint line or soft tissues in both knees. Muscle strength testing and joint instability tests revealed normal findings (no instability). There was no history of recurrent patellar subluxation/dislocation. The examiner opined that the knee disabilities did not impact the Veteran's ability to work. At the Veteran's August 2015 VA examination he reported that his right knee felt unstable and that the knee cap moved to the side easily. He reported pain in his right knee that comes and goes. With movement, he had popping and grinding in the right knee. He denied any swelling in the right knee. He used a patellar locating brace to maintain stability. He stated that his last right patellar dislocation was more than one year ago. He reported flare-ups in that he stated that "my knee goes out easily." Upon examination, the Veteran achieved forward flexion from 0-140 degrees bilaterally. There was no pain noted on examination of either knee, except that there was pain with weight bearing in the right knee only. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was crepitus bilaterally. There was no additional limitation of motion following repetitive use testing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time, or with flare-ups. There was no muscle atrophy or ankylosis. The examiner noted moderate recurrent subluxation is both knees. There was no lateral instability in either knee. In an April 2016 addendum, the August 2015 VA examiner stated that the right knee showed no objective signs of weakened movement, excess fatigability, incoordination, or swelling. There was no history of significant flare-ups. There was no ankylosis. He noted that the left knee had a surgical repair in December 2014. The same procedure was scheduled for the right knee; but there was no record reflecting that the right knee surgery had been done. The examiner stated that no significant abnormality of the bilateral tibia or fibula or genu recurvatum was noted during this examination. At his May 2017 VA examination, the Veteran stated that his left knee had improved and is now a little stronger than during his last examination. He denied constant left knee pain. He did report intermittent pressure/ache that occurs monthly, lasting 24 hours, and rated at 4-5/10. He reported a decreased capacity to run, walk, kneel, or negotiate stairs and ladders. With regard to the right knee, the Veteran reported that pain has increased by at least 50 percent. He had been told by an orthopedic surgeon at Cheyenne VAMC that he needed the same procedure that was performed on his left knee. He had been reluctant to pursue this surgery for fears of being immobilized. However, he stated that the pain has increased to the point where he now felt it was time for this suggested surgery. He reported a constant hard, deep ache to the right knee, rated at 7/10. He also reported flare-ups of pain, with a throbbing ache, every 1-2 months, lasting 2 days, and rated an 8/10. He reported a decreased capacity to run, walk, kneel, or negotiate stairs and ladders. Upon examination, the Veteran achieved forward flexion from 0-145 degrees bilaterally. There was no pain noted on examination of either knee, including with weight bearing. There was moderate tenderness to palpation noted to medial right knee. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the left knee. There was crepitus bilaterally. There was no additional limitation of motion following repetitive use testing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. There was no muscle atrophy or ankylosis. The examiner found no history of recurrent subluxation or lateral instability in either knee. However, he then stated that the Veteran has recurrent patellar dislocation that is severe in the right knee and slight in the left knee. Analysis Both the Veteran's knees have been rated as 10 percent disabling due to pain and reduced range of motion. In order to warrant a rating in excess of 10 percent, the Veteran's disability has to be manifested by leg flexion limited to 30 degrees, or leg extension limited to 15 degrees. At the November 2008, December 2012, August 2015, and May 2017 VA examinations, the Veteran was able to achieve flexion bilaterally to 140 degrees, 120 degrees, 140 degrees, and 145 degrees, respectively. He was able to achieve full extension bilaterally at each examination. There was no additional limitation of motion following repetitive use testing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time, or with flare-ups. There was no muscle atrophy or ankylosis. In regard to DeLuca criteria, the Board notes that although the Veteran was able to achieve flexion to 120 degrees at his December 2012 VA examination, he experienced pain at 115 degrees. The Board also notes that the Veteran underwent an April 2009 VA examination of the left knee in which the Veteran's 140 degrees of flexion was reduced to 90 degrees of flexion with weightbearing. This additional limitation of motion was due to 5/10 pain. Nonetheless, even the reduction to 90 degrees of flexion is insufficient to meet the criteria for a rating in excess of 10 percent. The Board notes that neither the VA examinations nor the outpatient treatment records contain sufficient evidence to show that there is any additional loss of motion due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for initial or staged rating in excess of 10 percent for degenerative joint disease of the right and left knees must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). With regard to the Veteran's right and left knee subluxation, both knees were originally rated as 20 percent disabling. By way of a July 2017 rating decision, the rating for the right knee was increased to 30 percent (the maximum allowable rating under Diagnostic Code 5256) effective May 2016, 2017. The Board notes that in order to receive a rating in excess of 20 percent, the Veteran's knee disability would have to be manifested by severe subluxation or lateral instability. The Board notes that at the Veteran's November 2008, he denied instability of the knee, buckling, and locking. He stated that his physical activity was limited by back pain; and that it was not limited by a knee disability. Physical examination confirmed that there was no instability. Nonetheless, x-rays reflected that the patella appeared somewhat laterally subluxed. At his April 2009 examination of the left knee only, the Veteran reported that the left knee gives way at times, but he denied any falls. He denied locking. There were no objective findings of instability or subluxation. At his December 2012 VA examination, the Veteran denied any locking up or giving up. Upon examination, joint instability tests revealed normal findings (no instability). There was no history of recurrent patellar subluxation/dislocation. At the Veteran's August 2015 VA examination, he reported that his right knee felt unstable and that the knee cap moved to the side easily. He used a patellar locating brace to maintain stability. He reported flare-ups in that he stated that "my knee goes out easily." Upon examination, the examiner found moderate recurrent subluxation is both knees. There was no lateral instability in either knee. The Board finds that prior to May 16, 2017, the subluxation in both of the Veteran's knees is properly characterized as no more than moderate. Consequently, a rating in excess of 20 percent is not warranted. As noted above, the RO increased the Veteran's rating for right knee subluxation effective May 16, 2017 (the date of his most recent VA examination). At that examination, the examiner found that the Veteran's recurrent patellar dislocation is severe in the right knee and slight in the left knee. Consequently, the characterization of the Veteran's left knee recurrent patellar dislocation remains no more than moderate; and a rating in excess of 20 percent is not warranted. With regard to the Veteran's right knee, the Board notes that the 30 percent rating that has been assigned is the maximum allowable rating under Diagnostic Code 5257. Consequently, a rating in excess of 30 percent is not warranted. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 20 percent or the Veteran's right and left knee subluxation must be denied; and a rating in excess of 30 percent effective May 16, 2017 must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to a higher initial rating for lumbar spine degenerative joint disease and lumbar discectomy is denied. Entitlement to higher initial ratings for right knee subluxation associated with degenerative joint disease, right patella, is denied. Entitlement to a higher initial rating for left knee subluxation associated with degenerative joint disease of the left knee status post medial patellofemoral ligament reconstruction, is denied. Entitlement to a higher rating for degenerative joint disease of the left knee is denied. Entitlement to a higher rating for degenerative joint disease of the right knee is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs