Citation Nr: 1803177 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-31 442A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to the service-connected low back disability. 2. Entitlement to a rating in excess of 10 percent prior to November 24, 2014, for cervical strain, and a rating in excess of 20 percent thereafter. 3. Entitlement to a rating in excess of 10 percent for a right knee disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard from March 1979 to June 1979, from February 2003 to January 2004, and from February 2007 to April 2008. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of radiculopathy of the bilateral lower extremities. 2. Prior to November 24, 2014, the Veteran demonstrated forward flexion of the cervical spine to no less than 45 degrees; a combined range of motion of the cervical spine of no less than 295 degrees; and no evidence of muscle spasms or guarding severe enough to result in abnormal gait or spinal contour. 3. Since November 24, 2014, the Veteran has demonstrated forward flexion of the cervical spine to no less than 30 degrees and there has been no evidence of ankylosis of the cervical spine. 4. Throughout the period on appeal, the Veteran has demonstrated flexion of the right knee to no less than 130 degrees. 5. Throughout the period on appeal, the Veteran has demonstrated flexion of the left knee to no less than 130 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for a rating in excess of 10 percent prior to November 24, 2014, and in excess of 20 percent from November 24, 2014, for the service-connected cervical strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 3. Throughout the appeal period, the criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C. §1155, 5107 (2012); 38 C.F.R. §3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5260 (2017). 4. Throughout the appeal period, the criteria for a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §1155, 5107 (2012); 38 C.F.R. §3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to incorporate the analysis by the Court in Allen. The revised 38 C.F.R. § 3.310 provides, in essence, that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records and post-service treatment records do not document any complaints or treatment related to radiculopathy of the bilateral lower extremities. In October 2010, the RO afforded the Veteran a VA examination for his cervical spine. At that time, he reported experiencing paresthesias, numbness, and leg/foot weakness. He also stated that pain radiated from his lower back to his legs. However, the examiner found no clinical evidence of bilateral lower extremity radiculopathy. Additionally, at the March 2015 VA examination for the lumbar and cervical spine disabilities, the examiner found there to be no evidence of radicular pain or any signs or symptoms related to radiculopathy. The evidence shows no current diagnosis of radiculopathy of the bilateral lower extremities. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection requires a current disability). A current disability is one shown at some time during the period beginning proximate to the date of claim. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). In this case there is no evidence of symptomatology related to radiculopathy since separation from service. Notably, there is no documentation of any complaints, treatment, or diagnoses related to radiculopathy of the bilateral lower extremities. Furthermore, the October 2010 and March 2015 VA examiners found that the Veteran did not have any radicular pain, or any signs or symptoms related to radiculopathy of the bilateral lower extremities. The Veteran has not reported any pertinent symptomatology or treatment during the current appeal. There is no evidence of any post-service treatment, there is no other evidence to show a current underlying disability, and there is no indication of any change since the March 2015 examination. Although the Veteran is competent to report observable complaints and symptoms, such as radiating pain, numbness, and weakness, he is not competent to provide a diagnosis to account for such complaints. Rather this question requires medical expertise due to the complex nature of the nervous system. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the preponderance of the evidence is against service connection for radiculopathy of the bilateral lower extremities. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. III. Increased Ratings 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 should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 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 a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion without functional limitation, however, cannot serve as the basis for a rating in excess of the minimum. Mitchell, supra. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. A. Cervical Spine Service connection for the Veteran's cervical strain was granted in an August 2008 rating decision, at which time a 10 percent rating was assigned effective April 15, 2008. The Veteran submitted his claim for an increased rating in August 2010, after which a November 2010 rating decision continued the 10 percent rating. The Veteran filed a notice of disagreement in March 2011 and the RO issued a rating decision in March 2015 granting a 20 percent disability rating, effective November 24, 2014. The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following ratings are assigned: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a). 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 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. See 38 C.F.R. § 4.71a, DC 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome (IVDS) may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when IVDS is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2) following 38 C.F.R. § 4.71a, DC 5243 provides that if an IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever results in a higher evaluation of that segment. The evidence of record does not show that the Veteran has experienced IVDS requiring bed rest during any period on appeal. As required bed rest is a fundamental element for an evaluation under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating under these criteria. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine. In October 2010, the Veteran was afforded a VA examination to evaluate the severity of his service-connected cervical strain. He described his cervical pain as a "heavy sensation" and similar to cramping. He denied any symptoms related to bowel or bladder impairment. The Veteran reported symptoms including fatigue, decreased motion, stiffness, weakness, spasms, and pain. The examiner noted that there had been no incapacitating episodes of spine disease. The Veteran's posture, head position, and gait were normal and symmetrical. There was no evidence of abnormal spinal curvatures, specifically kyphosis, reverse lordosis, scoliosis, or cervical ankylosis. The examiner further noted objective evidence of spasms, tenderness and pain with motion of the cervical spine, but no evidence of guarding, atrophy, or weakness. The noted tenderness and spasms were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Although the Veteran reported the use of a back brace, he denied experiencing any limitation in terms of his ability to walk. Flexion was to 45 degrees and extension was to 30 degrees. Left and right lateral flexion was to 30 degrees, while left and right lateral rotation was to 80 degrees. There was objective evidence of pain on active motion, as well as following repetitive motion. However, there was no additional limitation of range of motion after three repetitions of motion. Reflex and sensory testing were normal, as was motor testing. Muscle tone was normal and there was no sign of muscle atrophy. In March 2015, the Veteran underwent a second VA examination for his cervical spine. He did not report experiencing flare-ups or having any functional loss or functional impairment of the cervical spine. The examiner noted that there was objective evidence of pain at the cervical paravertebral muscle. Although localized tenderness was noted, it did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, and there was no evidence of muscle atrophy. Additionally, reflex and sensory testing were normal. There was no evidence of ankylosis of the cervical spine. The Veteran did not have IVDS or any bowel or bladder problems due to the cervical strain. He did not use an assistive device for locomotion. Flexion was to 30 degrees, with objective evidence of pain, while extension was to 25 degrees. Right and left lateral flexion was to 20 degrees, with objective evidence of pain, while right and left lateral rotation was to 60 degrees. However, the abnormal ranges of motion, and the associated pain, did not contribute to functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, with at least three repetitions, without additional loss of function or range of motion, and denied experiencing flare-ups. Although he was not examined immediately after repetitive use over time or during a flare-up, the examiner indicated that the examination neither supported nor contradicted his statements describing functional loss with repetitive use over time or during a flare-up. Additionally, the examiner was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up. He explained that all musculoskeletal disorders could potentially cause functional limitation in such situations, but that any determination of severity and significance based upon a potential future event would be mere speculation. Prior to November 24, 2014, the evidence of record indicates that the Veteran demonstrated forward flexion of the cervical spine to 45 degrees, with a combined range of motion of 295 degrees. There is no indication that his forward flexion was less than 30 degrees, or that his combined range of motion was less than 170 degrees for this period of time. Although there was objective evidence of pain on active motion and following repetitive motion, there was no additional limitation of range of motion after three repetitions of motion. Additionally, the October 2010 VA examiner noted that the observed tenderness and muscle spasms were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Specifically, the Veteran did not demonstrate any sign of abnormal kyphosis, reverse lordosis, or scoliosis during this period of time. Since November 24, 2014, the Veteran has demonstrated forward flexion of the cervical spine to 30 degrees. There is no indication that his forward flexion has been less than 15 degrees since that time. The March 2015 examiner indicated that the decreased ranges of motion, and the associated pain, did not contribute to functional loss. Additionally, repetitive use testing did not result in additional loss of range of motion. As the Veteran was not observed after repetitive use over time or during a flare-up, at the time of the March 2015 VA examination, the examiner was unable to assess any additional functional loss in terms of range of motion loss, and, thus, it was infeasible to anticipate or predict limitation in function or motion, in specific degrees, during flare-ups or after repetitive use over time. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time or flare-ups. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 15 degrees of the cervical spine. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. 32. The General Rating Formula provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1). No bowel or bladder impairment has been documented during the periods on appeal. Based upon the evidence of record, there has been no evidence of ankylosis of the cervical spine during the periods on appeal. See October 2010 and January 2015 VA examination reports. With respect to the period prior to November 24, 2014, the preponderance of the evidence is against a rating in excess of 10 percent as cervical spine flexion was greater than 30 degrees, the combined range of motion of the cervical spine was greater than 170 degrees, and there was no evidence of abnormal gait or spinal contour throughout that period of time. 38 C.F.R. § 4.71a, DC 5237. Additionally, the preponderance of the evidence is against a rating in excess of 20 percent after November 24, 2014, as there is no indication that cervical spine flexion has been limited to 15 degrees or less, or that there has been cervical spine ankylosis since that time. 38 C.F.R. § 4.71a, DC 5237. B. Right and Left Knee Disabilities Historically, an August 2008 rating decision granted service connection for the Veteran's bilateral knee disability, and assigned a 10 percent rating for each knee, effective April 15, 2008. A November 2011 decision denied the Veteran's claim for an increased rating as it pertains to both knees. He has appealed the ratings assigned. The Veteran contends that his symptomatology related to his bilateral knee disability is more severe than currently rated. He has been assigned 10 percent disability ratings for each knee pursuant to 38 C.F.R. §4.71a, DC 5260. These 10 percent ratings for each knee have remained in effect since April 15, 2008, to the present. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, DC 5257 (2017). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 (2017). Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2017). As the Veteran has not had a knee replacement, or impairment of the tibia and fibula, these codes are inapplicable. (i) Right Knee Disability In October 2010, the Veteran underwent a VA examination for his bilateral knee disability. He reported occasional right knee pain, which worsened with the use of stairs. He described the pain as "getting out of place," referring to potential dislocation. There was no history of surgery related to the right knee. The Veteran reported symptoms including pain, stiffness, and daily episodes of dislocation or subluxation. There was no evidence of deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, locking, effusion, inflammation, flare-ups of joint disease, or effects on the motion of the tee joint. He did not use assistive devices and reported no limitations on standing or walking. There were no constitutional symptoms or incapacitating episodes of arthritis. There was no evidence of abnormal gait or abnormal weight bearing. There was no loss of bone or inflammatory arthritis. The examiner noted crepitus and grinding, but no evidence of instability, patellar or meniscus abnormality, clicking or snapping, or mass behind the right knee. Flexion was to 140 degrees and extension was to 0 degrees, with no objective evidence of pain. Although there was objective evidence of pain following repetitive motion, such did not result in additional limitation of range of motion. There was no ankylosis of the right knee. Most recently, in March 2015, the Veteran was afforded another VA examination to assess the severity of his bilateral knee disability. He reported that he was unable to walk long distances. There was no objective evidence of crepitus. Muscle strength testing was normal, with no evidence of muscle atrophy. There was no ankylosis of the right knee. Additionally, joint stability testing was normal, with no evidence of recurrent effusion. There was no history of recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. Furthermore, there was no history of a semilunar cartilage condition. The examiner noted that the bilateral patellar grinding test was positive. No assistive devices were used to assist with locomotion. Flexion was to 130 degrees and extension was to 0 degrees, neither of which contributed to additional functional loss. However, the examiner did note objective evidence of pain for both ranges of motion, which did contribute to additional functional loss. There was evidence of pain with weight bearing, as well as localized tenderness or pain on palpation to the peripatellar area. The Veteran was able to perform repetitive use testing, with at least three repetitions, without additional loss of function or range of motion, and denied experiencing flare-ups. Although he was not examined immediately after repetitive use over time, the examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Additionally, the examiner was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. He explained that all musculoskeletal disorders could potentially cause functional limitation in such a situation, but that any determination of severity and significance based upon a potential future event would be mere speculation. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right knee flexion for the entire period on appeal. During the period on appeal, there is no indication of any such limitation of motion that would warrant a disability rating in excess of 10 percent for the Veteran's right knee disability for limitation of flexion. Specifically, he has not demonstrated flexion limited to less than 130 degrees. A normal range of motion for the knee joint is flexion at 140 degrees. Based on limitation of motion, an increased evaluation to the next highest rating (20 percent) would be warranted if his knee was limited on flexion to 30 degrees. 38 C.F.R. §4.71a, DC 5260. As the Veteran was not observed after repetitive use over time, at the time of the March 2015 VA examination, the examiner was unable to assess any additional functional loss in terms of range of motion loss, and, thus, it was infeasible to anticipate or predict limitation in function or motion, in specific degrees, after repetitive use over time. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran, nor the Board, can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time. The Board finds that such a potential factor does not result in functional loss more nearly approximating flexion limited to 30 degrees of the right knee. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. 32. Thus, a rating in excess of 10 percent for the right knee disability is not warranted. (ii) Left Knee Disability At the October 2010 examination, the Veteran reported constant left knee pain, which worsened with the use of stairs. There was no history of surgery related to the left knee. The Veteran reported symptoms including pain, stiffness, weakness, and giving way. There was no objective evidence of deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, locking, effusion, inflammation, flare-ups of joint disease, episodes of dislocation or subluxation, or effects on the motion of the tee joint. He did not use assistive devices and reported no limitations on standing or walking. There were no constitutional symptoms or incapacitating episodes of arthritis. There was no evidence of abnormal gait or abnormal weight bearing. There was no loss of bone or inflammatory arthritis. The examiner noted crepitus, grinding, and clicking/snapping, but no evidence of instability, patellar abnormality, or mass behind the left knee. Although a left meniscus abnormality (tear) was identified, it was not accompanied by locking, effusion, or dislocation. Furthermore, it had not been surgically removed. Flexion was to 140 degrees and extension was to 0 degrees, with no objective evidence of pain. Although there was objective evidence of pain following repetitive motion, such did not result in additional limitation of range of motion. There was no ankylosis of the left knee. As noted above, during the March 2015 examination, the Veteran reported that he was unable to walk long distances. There was no objective evidence of crepitus. Muscle strength testing was normal, with no evidence of muscle atrophy. There was no ankylosis of the left knee. Additionally, joint stability testing was normal, with no evidence of recurrent effusion. There was no history of recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment of the left knee. Furthermore, there was no history of a semilunar cartilage condition. The examiner noted that the bilateral patellar grinding test was positive. No assistive devices were used to assist with locomotion. Flexion was to 130 degrees and extension was to 0 degrees, neither of which contributed to additional functional loss. However, the examiner did note objective evidence of pain for both ranges of motion, which did contribute to additional functional loss. There was evidence of pain with weight bearing, as well as localized tenderness or pain on palpation to the peripatellar area. The Veteran was able to perform repetitive use testing, with at least three repetitions, without additional loss of function or range of motion, and denied experiencing flare-ups. Although he was not examined immediately after repetitive use over time, the examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Additionally, the examiner was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. He explained that all musculoskeletal disorders could potentially cause functional limitation in such a situation, but that any determination of severity and significance based upon a potential future event would be mere speculation. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left knee flexion for the entire period on appeal. During this period on appeal, there is no indication of any such limitation of motion that would warrant a disability rating in excess of 10 percent for the Veteran's left knee disability. Upon examination, the Veteran's flexion of his left knee was limited to 130 degrees, in comparison to the normal range of motion for the knee joint is flexion at 140 degrees. Based on limitation of motion, an increased evaluation to the next highest rating (20 percent) would be warranted if his left knee was limited on flexion to 30 degrees. 38 C.F.R. §4.71a, DC 5260. As the Veteran was not observed after repetitive use over time, at the time of the March 2015 VA examination, the examiner was unable to assess any additional functional loss in terms of range of motion loss, and, thus, it was infeasible to anticipate or predict limitation in function or motion, in specific degrees, after repetitive use over time. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran, nor the Board, can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time. The Board finds that such a potential factor does not result in functional loss more nearly approximating flexion limited to 30 degrees of the left knee. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. 32. Thus, a rating in excess of 10 percent for the left knee disability is not warranted. With regards to both the right and left knees, the Board has also considered the possibility of separate ratings for limitation of extension under DC 5261. Such ratings are not warranted during the appeal period. VA examination reports have consistently reported degrees of extension that are within normal limits, and in this regard, the Board understands this to mean there was no degree of motion that was limited to a compensable degree. Thus, the Board finds that the preponderance of the evidence is against a finding that a separate rating for left or right knee limitation of extension is warranted at any time during the period on appeal. The evidence shows additional right knee symptoms including subjective complaints of feelings of dislocation, as stated by the Veteran at the October 2010 VA examination. However, physical examinations of the Veteran revealed no instability during the pendency of the claim, as joint stability testing was within normal limits during both knee examinations. Therefore, these symptoms are contemplated in the Veteran's disability rating under DC 5260. Thus, the Board finds that a separate rating is not warranted under DC 5257 for recurrent subluxation or lateral instability at any point during the appeal. Additionally, although the October 2010 examiner noted a left meniscal tear, he did not find evidence of locking, effusion, or dislocation, nor had the meniscus been surgically removed. Throughout the appeal period, there is no indication of dislocated semilunar cartilage accompanied by frequent episodes of locking, pain, and effusion for either knee. Thus, a separate compensable rating under DC 5258 is not warranted. With regards to a rating under diagnostic code 5259, the record does not contain evidence of any meniscus removal, which was confirmed by the October 2010 examiner. Thus, such diagnostic code does not provide for a greater rating. The medical evidence is also negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under diagnostic codes 5256 and 5263 for both the right and left knees. As indicated above, record is also silent for any complaints, treatments or diagnoses of an impairment of the tibia or fibula. Thus, ratings under diagnostic code 5262 are not warranted. IV. Additional Considerations 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, 28 Vet. App. 366 (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). ORDER Entitlement to service connection for radiculopathy of the bilateral lower extremities is denied. Entitlement to a rating in excess of 10 percent prior to February 24, 2014, for cervical strain, and a rating in excess of 20 percent thereafter, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs