Citation Nr: 1802706 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-45 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for a lower back disability prior to March 15, 2016, and in excess of 20 percent thereafter. 2. Entitlement to an initial compensable rating for a left knee disability prior to March 22, 2011, and in excess of 10 percent thereafter. 3. Entitlement to an initial compensable rating for a right knee disability prior to March 22, 2011, and in excess of 10 thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1996 to June 2009. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015 and February 2017, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In February 2017, the Board remanded the issues of entitlement to a separate compensable rating for surgical scars status post left foot bunionectomy; entitlement to an initial compensable rating for a lower back disability prior to March 15, 2016, and in excess of 20 percent thereafter; entitlement to initial compensable ratings for separate left and right knee disabilities prior to March 22, 2011, and in excess of 10 thereafter; and entitlement to a total disability rating based on individual unemployability (TDIU). While in remand status, in a July 2017 rating decision, the RO granted service connection for left foot bunionectomy scar and assigned a noncompensable rating effective June 30, 2009. In that decision, the RO also granted service connection for TDIU, and assigned an effective date of June 30, 2009. The grant of service connection for left foot bunionectomy scar, and TDIU constitutes a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective dates assigned for his service-connected left foot bunionectomy scar, or TDIU. Thus, those matters are not in appellate status. FINDINGS OF FACT 1. Prior to March 15, 2016, Veteran's service-connected lower back disability has not been shown to have forward flexion 85 degrees or less or limitation of the combined range of motion of the thoracolumbar spine to 235 degrees or less, nor was his service-connected lower back disability shown to be manifested by incapacitating episodes of intervertebral disc syndrome totaling at least 2 weeks in any 12-month period. 2. Since March 15, 2016, the Veteran's service-connected lower back disability has been manifested by limitation of motion with pain and no functional loss. At no time during this period, however, has he been shown to have forward flexion 30 degrees or less, or unfavorable ankylosis of the entire thoracolumbar spine, nor was his service-connected lower back disability shown to be manifested by incapacitating episodes of intervertebral disc syndrome totaling at least 4 weeks in any 12-month period. 3. Prior to March 22, 2011, the Veteran's service-connected left knee disability was manifested by flexion no worse than 140 degrees, extension no worse than zero degrees, no pain on range of motion testing, no additional loss of motion or pain after repetitive use, complaints of pain, negative x-ray studies, no instability, and no dislocation or removal of cartilage, nor genu recurvatum. 4. Since March 22, 2011, the Veteran's service-connected left knee disability was manifested by flexion no worse than 95 degrees, extension no worse than zero degrees, with pain on range of motion testing, no additional loss of motion after repetitive use, complaints of pain, X-ray findings of arthritis, no instability, and no dislocation or removal of cartilage, nor genu recurvatum. 5. Prior to March 22, 2011, the Veteran's service-connected right knee disability was manifested by flexion no worse than 140 degrees, extension no worse than zero degrees, no pain on range of motion testing, no additional loss of motion or pain after repetitive use, complaints of pain, negative x-ray studies, no instability, and no dislocation or removal of cartilage, nor genu recurvatum. 6. Since March 22, 2011, the Veteran's service-connected right knee disability was manifested by flexion no worse than 95 degrees, extension no worse than zero degrees, with pain on range of motion testing, no additional loss of motion after repetitive use, complaints of pain, X-ray findings of arthritis, no instability, and no dislocation or removal of cartilage, nor genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a lower back disability prior to March 15, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 20 percent for a lower back disability since March 15, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 3. The criteria for an initial compensable rating prior to March 22, 2011, for a left knee disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260 (2017). 4. The criteria for rating in excess of 10 percent, since March 22, 2011, for a left knee disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260 (2017). 5. The criteria for an initial compensable rating prior to March 22, 2011, for a right knee disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260 (2017). 6. The criteria for rating in excess of 10 percent, since March 22, 2011, for a right knee disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Factual Background In pertinent part, the Veteran's service treatment records show that in March 1997, the Veteran reported bilateral knee pain for one week from running. Retropatellar pain syndrome and effusion was noted. Review of the record reveals subsequent complaints and treatment for bilateral knee pain in service. In May 2007, the Veteran was seen for back and neck pain, which resulted from a motor vehicle accident two days prior. The Veteran was diagnosed with lumbar strain. The record reflects continued complaints and treatment for back pain in service. In November 2008, the Veteran submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including lower back and bilateral knee disabilities. The Veteran was afforded a VA medical examination in December 2008. He reported spine stiffness and numbness with sharp, aching pain with a severity of 5 on a scale of 10. Examination of the thoracolumbar spine did not reveal any evidence of radiation pain on movement, muscle spasm, or tenderness. The straight leg raise test was negative on the right and left. There was no fixed position of the lumbar spine identified. The Veteran's range of motion was within normal limits. Forward flexion was to 90 degrees, extension to 30 degrees, bilateral flexion to 30 degrees, and bilateral rotation to 30 degrees, resulting in a combined range of motion of 240 degrees. Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion after repetitive use testing. Inspection of the spine revealed that the position of the head and curvature of the spine were within normal limits. There was symmetry in appearance and spinal motion. Review of the history and physical examination did not identify an intervertebral disk syndrome as evident by bowel or bladder dysfunction. The Veteran's thoracic spine x-ray was negative. The examiner determined a diagnosis of disc space narrowing of L5-S1, otherwise negative by x-ray. The Veteran reported bilateral knee symptoms of weakness, giving away, lack of endurance, locking, sharp burning and aching pain rated at 8 on a scale of 10. He stated that the pain was elicited by physical activity, and was relieved with treatment of elevation and a knee brace. He described his functional limitation was standing for long periods of time, and not being able to run. Examination of the Veteran's left and right knee indicated that they were within normal limits. There was no edema, effusion, weakness, tenderness, redness heat, or abnormal movement. There was no evidence of recurrent subluxation, locking pain, joint effusion or crepitus. No fixed position was identified. Bilateral knee range of motion was flexion to 140 degrees, and extension to zero degrees. There was no varus/valgus instability, and the Drawer and McMurray tests were negative. Pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion after repetitive exercise. The x-rays were negative for both knees. The examiner concluded that there was no current pathology identified on physical examination to render a diagnosis. In a February 2009 statement, the Veteran reported persistent lower back pain, causing limited physical activity during normal body exertion. He also stated that his knees limited his standing and sitting, without having to elevate his leg because of severe swelling. He further stated that he was currently taking pain medication and wearing knee braces, which did not alleviate his pain. See also December 2011 VA 21-4138 Statement in Support of Claim, December 2011 Correspondence. Review of VA clinical records, in pertinent part, shows that in March 2011, the Veteran reported bilateral knee pain. Tenderness to palpation with limited range of motion in the lower extremities was noted. The Veteran's rate of strength was normal. In August 2011, there was limited range of motion in bilateral knees with left greater than right. The Veteran denied weakness, swelling of joints, joint stiffness, or gout. In December 2011, bilateral knee range of motion was flexion to 120 degrees, and extension to zero degrees. There was evidence of crepitus. In February 2012 and May 2012, the Veteran reported bilateral knee pain with swelling, locking, and no giving away. Bilateral knee range of motion was flexion to 120 degrees, and extension to zero degrees. There was evidence of crepitus. There was no effusion or anterior draw. In a July 2012 VA clinical record, full range of motion of the Veteran's back was noted. A September 2013 VA clinical record indicates tenderness to palpation in the left sided lumbosacral back region with significant spasms and point tenderness at the lateral region. In May 2014, the Veteran's bilateral knees were tender to palpation with limited range of motion in flexion. In March 2016 the Veteran underwent a VA medical examination. The Veteran reported that due to his back condition, there was a decrease in his ability to bend, stoop, twist, or lift weight. The diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome were noted. Range of motion was forward flexion to 50 degrees, extension to 10 degrees, bilateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees, resulting in a combined range of motion of 165 degrees. There was pain on motion, with no functional loss. There was evidence of pain on weight bearing, and localized tenderness or pain on palpation of joints or soft tissue, not resulting in abnormal gait or abnormal spinal contour. There was no additional loss of function upon repetitive use testing. There were no flare-ups, muscle spasm, or guarding. The Veteran's rate of strength was normal. There was no evidence of ankylosis, or atrophy. There was no evidence of radiculopathy or neurological abnormalities. The examiner indicated that the Veteran had intervertebral disc syndrome (IVDS) without incapacitating episodes requiring bed rest. An x-ray revealed no acute fracture, nor significant subluxation of the lumbar spine. The Veteran reported progressively worsening knee pain with prolonged standing, crouching, squatting, or on stairs. He reported intermittent swelling with overuse, intermittent locking, and occasionally giving out. The Veteran denied any flare-ups. The Veteran described functional loss as decreased ability to stand or walk for long periods, to bend, stoop, crouch, squat, and kneel. Right knee range of motion was flexion to 100 degrees with pain, and extension to zero degrees. There was evidence of pain on weight bearing, and localized tenderness or pain on palpation of joints or soft tissue. Left knee range of motion was flexion to 95 degrees with pain, and extension to zero degrees. There was localized tenderness of medial joint line, lateral retinacula, and medial patellar facet. Repetitive use testing resulted in no additional functional loss of bilateral knees. There were no flare-ups and muscle strength rate was normal. There was no evidence of atrophy, ankylosis, recurrent subluxation, lateral instability, effusion or crepitus of bilateral knees. The joint stability tests were within normal limits for anterior, posterior, medial, and lateral ligaments. X-rays were performed and arthritis of bilateral knees was noted. The Veteran used a brace and cane regularly. In June 2017, the Veteran underwent another VA medical examination. He reported pain with standing more than 5 to 10 minutes, and from climbing steps and ladders. The Veteran denied having flare-ups. Upon examination of the Veteran's back, the examiner noted a diagnosis of degenerative arthritis of the spine. Range of motion was forward flexion to 90 degrees, extension to 20 degrees, bilateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees, resulting in a combined range of motion of 185 degrees. There was pain on motion, with no functional loss. There was no evidence of pain on weight bearing. There was localized tenderness or pain on palpation of joints or soft tissue. There was no additional loss of function upon repetitive use testing. There were no flare-ups, muscle spasm, or guarding. The Veteran's rate of strength was normal. There was no evidence of ankylosis, or atrophy. There was no evidence of radiculopathy, neurological abnormalities, or IVDS. The Veteran's bilateral knees range of motion was flexion to 130 degrees with pain, and extension to zero degrees. There was evidence of pain with weight bearing and non-weight bearing, with no functional loss. There was evidence of pain with passive range of motion, with no functional loss. There was localized tenderness or pain on palpation of joints or soft tissue. There was no additional functional loss after repetitive use testing. There was evidence of crepitus. There were no flare-ups, and muscle rate strength was normal. There was no evidence of atrophy, ankylosis, recurrent subluxation, lateral instability, or effusion of bilateral knees. The joint stability tests were within normal limits for anterior, posterior, medial, and lateral ligaments. X-rays were performed and arthritis of bilateral knees was noted. The Veteran used a brace regularly. Applicable Law Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence 'used to decide whether an [initial] rating on appeal was erroneous . . . .'" Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2017). When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Increased ratings for lower back The Veteran's lower back disability is currently rated under 38 C.F.R. §§ 4.71a, DC 5237 (lumbosacral strain), which permits rating under either 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 results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, 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; or vertebral body fracture with loss of 50 percent or more of the height. 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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or with 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. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Following the criteria, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, 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 (3) provides that 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) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that 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. The Veteran seeks a higher rating for service-connected lower back disability. He contends that the ratings currently assigned do not reflect the severity of his disability. Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of evidence is against the assignment of a compensable rating prior to March 15, 2016, and in excess of 20 percent thereafter, for the Veteran's lower back disability. As delineated in detail above, the examinations have shown that the Veteran does not exhibit the criteria to warrant a compensable rating under Diagnostic Code 5237 prior to March 15, 2016, or a rating in excess of 20 percent thereafter. Range of motion studies conducted prior to March 15, 2016, show that the Veteran exhibited forward flexion to 90 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees, bilaterally; and right and left rotation to 30 degrees, bilaterally, for a total of 240 degrees. These ranges of motion findings do not meet the criteria for a compensable rating. There is no other probative evidence during this period showing that the Veteran's range of motion was limited to the extent required to meet the criteria for a compensable rating. A compensable rating under the General Rating Formula is not warranted prior to March 15, 2016, as the Veteran was able to perform forward flexion of the thoracolumbar spine in excess of 85 degrees, the combined range of motion of the thoracolumbar spine was in excess of 235 degrees. At the December 2008 VA examination, pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion after repetitive use testing. A preponderance of the evidence shows that even considering the Veteran's reported pain, his symptoms were not shown to be so disabling to actually or effectively result in limitation of flexion to 85 degrees or less or limitation of the combined range of motion of the thoracolumbar spine to 235 degrees or less-the range of motion requirements for a compensable rating (i.e., 10 percent) for limitation of motion of the thoracolumbar spine under the General Rating Formula. This evidence outweighs any reports of pain. Moreover, the Veteran did not experience any radiation pain on movement, muscle spasm, or tenderness. In addition, there was no fixed position of the lumbar spine identified. The Board further notes that the December 2008 VA examiner specifically determined that the Veteran does not have intervertebral disc syndrome, nor were there signs or symptoms of radiculopathy or other neurologic abnormalities or findings related to the thoracolumbar spine, such as bowel or bladder problems. There is no other clinical or lay evidence to suggest that the Veteran experiences incapacitating episodes due to his thoracolumbar spine symptomatology. As such, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes would not avail the Veteran of a higher rating. Additionally, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. To this end, the evidence of record does not document neurological symptoms related to the service-connected lower back disability. In sum, the preponderance of the evidence shows that the Veteran's service-connected lower back disability does not warrant a compensable rating prior to March 15, 2016. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. For the period since March 15, 2016, a review of the evidence of record shows that the Veteran's lower back symptoms do not more nearly approximate the criteria for rating in excess of the currently assigned 20 percent evaluation. Specifically, the March 2016 VA examiner found forward flection to 50 degrees, and there was no evidence of ankylosis. At the June 2017 VA examination, the Veteran exhibited forward flexion to 90 degrees, and there was no evidence of ankylosis. These findings do not meet the criteria for a rating in excess of 20 percent. There is no other probative evidence during this period showing that the Veteran's range of motion was limited or symptomatology was to the extent required to meet the criteria for a rating in excess of 20 percent. As such, an increased rating based upon forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, is not warranted based upon the diagnostic criteria. The Board has considered whether a rating in excess of 20 percent could be assigned, pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59. The current 20 percent rating discussed immediately above, however, is based on evidence showing that the Veteran's lower back disability is manifested by symptoms of pain without functional loss. The record shows no additional factors, such as atrophy of disuse, which would restrict motion to such an extent that the criteria for a rating in excess of 20 percent would be justified. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017). In addition, higher evaluations under DeLuca are not warranted. The evidence does not support a finding that the DeLuca factors cause the orthopedic symptoms of the Veteran's lower back disability to more nearly approximate the forward flexion of the thoracolumbar spine 30 degrees or less required for a 40 percent rating under the general rating formula for the period since March 15, 2016. For example, although the Veteran reported symptoms of pain, and a decrease in his ability to bend, stoop, twist, or lift weight, multiple examinations have shown no additional loss of function, no guarding or ankylosis, and there was no evidence of disuse. Actually, the examiner expressly indicated that no muscle atrophy was present. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a higher rating on the basis of functional loss. The Board further notes that there is no clinical evidence to suggest that the Veteran experiences incapacitating episodes due to his lower back symptomatology. As such, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes would not afford the Veteran a rating in excess of 20 percent from March 15, 2016. Additionally, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. The record, however, shows that from March 15, 2016, the Veteran has exhibited no radicular pain, any other signs or symptoms due to radiculopathy, or other neurologic complications. In sum, the preponderance of the evidence shows that the Veteran's lower back disability does not warrant a rating in excess of 20 percent at any time from March 15, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Therefore, the Board finds that a noncompensable rating for a lower back disability, prior to March 15, 2016, and 20 percent thereafter, most accurately contemplates the symptomatology and resulting impairment demonstrated in the evidence of record. This is a case where the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b) (West 2017). Increased Ratings for Knees The Veteran seeks a higher rating for his service-connected knees. He contends that the ratings currently assigned do not reflect the severity of his disability. In this case, the RO has evaluated the Veteran's knees as 10 percent disabling under the rating criteria pertaining to arthritis and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5260, 5261. Under those criteria, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010 (2017). Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Evaluations for limitation of knee extension are assigned as follows: extension limited to 5 degrees is noncompensable; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of evidence is against the assignment of an initial compensable rating for a left and right knee disability prior to March 22, 2011, and in excess of 10 percent thereafter. As delineated in detail above, repeated examinations have shown that the Veteran's knees does not exhibit limitation of flexion or extension to the extent necessary to meet the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 prior to March 22, 2011, or a rating in excess of 10 percent thereafter. For example, range of motion studies conducted prior to March 22, 2011, show that the Veteran exhibited bilateral knee flexion to 140 degrees, and extension to zero degrees at his December 2008 VA examination. These ranges of motion findings do not warrant a compensable rating under the criteria based on either limitation of extension or flexion, nor is there any other evidence of record documenting compensable limitation of motion. 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. See VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004). Despite the normal motion demonstrated above, the Board has considered whether a compensable rating may be assigned based on functional impairment, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Prior to March 22, 2011, however, the record demonstrates that the Veteran did not have flare-ups that impacted the function of his bilateral knees. Specifically, the December 2008 examiner indicated that pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion after repetitive use. The evidence during this period reflects that there was no additional functional impairment due to flare-ups or otherwise that resulted in limitation of motion, particularly loss of motion that more nearly approximated limitation of flexion to 45 degrees or limitation of extension to 10 warranting the lowest compensable rating of 10 percent under Diagnostic Codes 5260 and 5261. See Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (indicating that, other than when a Veteran is seeking the minimum compensable rating of 10 percent as discussed below, pain only results in functional loss and warrants a higher rating if it limits the ability to perform the normal working movements of the body and "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system"). Moreover, the Board notes that there was no evidence of painful motion during this period to warrant a compensable rating under 38 C.F.R. § 4.59. In that regard, the Veteran's x-rays were negative, and the examination showed full range of motion of bilateral knees without pain. Since March 22, 2011, the RO has assigned a 10 percent rating based on the evidence demonstrating pain and noncompensable limitation of motion. The Board finds, however, that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. The record shows that the Veteran does not exhibit loss of left and right knee motion to the extent necessary to meet the criteria for a rating in excess of 10 percent under Diagnostic Codes 5260 and 5261. For example, December 2011, March 2012, and May 2012 VA clinical records showed the Veteran had range of motion flexion to 120 degrees, and extension to zero degrees. At the March 2016 VA examination, right knee flexion was to 100 degrees with pain, and extension to zero degrees. Left knee flexion was to 95 degrees with pain, and extension to zero degrees. The June 2017 VA examiner found bilateral knee motion was flexion to 130 degrees, and flexion to zero degrees. There is no other evidence of record establishing that the Veteran's range of bilateral knee motion has been restricted of flexion limited to 30 degrees or extension limited to 15 degrees since March 22, 2011, to warrant a 20 percent disability rating. Although compensable loss of flexion or extension has not been shown, the record contains X-ray evidence of degenerative arthritis. In light of this evidence, and considering the objective evidence of painful bilateral knee motion, the RO has assigned a 10 percent disability rating. Hicks v. Brown, 8 Vet. App. 417 (1995); see also 38 C.F.R. § 4.59. The Board has considered whether a rating in excess of 10 percent could be assigned, pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59. The current 10 percent rating discussed immediately above, however, is based on multiple examinations showing that the Veteran's left and right knee disability is manifested by symptoms of no flare-ups or additional functional loss after repetitive use testing, and normal muscle rate strength. In addition, the medical evidence of record is negative for evidence of atrophy. As a result, the criteria for a rating in excess of 10 percent would not be justified. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017). The Board has considered the Veteran's contentions to the effect that he experiences symptoms such as sharp pain and difficulty in walking or standing for prolonged periods. The Board finds that such symptoms, however, are contemplated in the currently assigned 10 percent rating. Therefore, with consideration of the Veteran's reported pain and functional loss, the Board finds that a 10 percent rating is appropriate. A rating in excess of 10 percent is not warranted, absent additional functional loss, supported by adequate pathology. The Board has also reviewed other diagnostic codes that potentially relate to impairment of the knee, but finds that application of an alternative or additional diagnostic code does not result in a rating in excess of that now assigned. Specifically, a rating for either knee is not warranted under DC 5256 because no finding of ankylosis is of record. A rating for either knee is not warranted under DC 5257, because the March 2016 and June 2017 VA examiners found no subluxation or instability. A rating for either knee is not warranted under DC 5258, because the March 2016 and June 2017 VA examiners found the Veteran had not had a meniscus (semilunar cartilage) condition. A rating for either knee is not warranted under DC 5259, because the March 2016 and June 2017 VA examiners found that the Veteran had not had a meniscectomy (removal of semilunar cartilage). Finally, a rating for either knee is not warranted under DC 5263, because there was no evidence of genu recurvatum. In summary, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the Board finds that an initial compensable rating for a left and right knee disability prior to March 22, 2011, and in excess of 10 percent thereafter, is not warranted. To that extent, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial compensable rating for a lower back disability prior to March 15, 2016, and in excess of 20 percent thereafter is denied. Entitlement to an initial compensable rating for a left knee disability prior to March 22, 2011, and in excess of 10 percent thereafter is denied. Entitlement to an initial compensable rating for a right knee disability prior to March 22, 2011, and in excess of 10 percent thereafter is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs