Citation Nr: 20010941 Decision Date: 02/10/20 Archive Date: 02/10/20 DOCKET NO. 12-27 490 DATE: February 10, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent for gout of the left great toe is denied. Entitlement to an initial disability rating in excess of 10 percent for gout of the right great toe is denied. For the period prior to July 31, 2017, entitlement to a disability rating in excess of 10 percent for gout of the left knee is denied. For the period from September 1, 2018, entitlement to a disability rating in excess of 30 percent for gout of the left knee is denied. Entitlement to an initial disability rating in excess of 10 percent for gout of the right knee is denied. For the period from May 1, 2012 to April 30, 2013, entitlement to a disability rating of 60 percent for thoracolumbar spine disability is granted. For the period prior to May 1, 2012, and from May 1, 2013, entitlement to a disability rating in excess of 10 percent for thoracolumbar spine disability is denied. For the period from June 30, 2009 to April 30, 2013, entitlement to a disability rating of 10 percent for radiculopathy, right lower extremity, is granted. FINDINGS OF FACT 1. Gout of the left great toe is manifested by mild impairment, with symptoms consisting of pain, swelling, redness, and stiffness. 2. Gout of the right great toe is manifested by mild impairment, with symptoms consisting of pain, swelling, redness, and stiffness. 3. For the period prior to July 31, 2017, the left knee is not manifested flexion limited to 30 degrees; extension is normal and there is no instability or subluxation. 4. For the period from September 1, 2018, the left knee, status post total knee arthroplasty, is not manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity, 5. The right knee is not manifested by flexion limited to 30 degrees; extension is normal and there is no instability or subluxation. 6. From May 1, 2012 to April 30, 2013, the Veteran’s thoracolumbar spine is manifested by incapacitating episodes having a total duration of at least 6 weeks. 7. Prior to May 1, 2012, and from May 1, 2013, the thoracolumbar spine is not manifested by forward flexion of 60 degrees or less, nor ankylosis of the entire thoracolumbar spine; there is no showing of incapacitating episodes having a total duration of at least 2 weeks. 8. From June 30, 2009 to April 30, 2013, radiculopathy of the right lower extremity is manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for gout of the left great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Diagnostic Codes 5002, 5281. 2. The criteria for a disability rating in excess of 10 percent for gout of the right great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Diagnostic Codes 5002, 5281. 3. For the period prior to July 31, 2017, the criteria for a disability rating in excess of 10 percent for gout of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5002, 5260. 4. For the period from September 1, 2018, the criteria for a disability rating in excess of 30 percent for gout of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5055. 5. For the period from May 1, 2012 to April 30, 2013, the criteria for a 60 percent disability rating for degenerative disc disease of the thoracic spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 6. For the period prior to May 1, 2012, and from May 1, 2013, the criteria for a disability rating in excess of 10 percent for degenerative disc disease of the thoracic spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 7. For the period from June 30, 2009 to April 30, 2013, the criteria for a disability rating of 10 percent for radiculopathy, right lower extremity, associated with degenerative disc disease of the thoracic spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to June 1972, and from December 2001 to December 2008; in between those periods he was in the Army National Guard and had various periods of inactive and active duty for training. These matters came to the Board of Veterans’ Appeals (Board) from April and August 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a June 2015 Board hearing; the transcript is of record. These matters were remanded in November 2015 and February 2018. In a September 2017 rating decision, a temporary total 100 percent evaluation was assigned per 38 C.F.R. § 4.30 due to left total knee replacement surgery, effective July 31, 2017, and a 30 percent rating was assigned to the left knee disability, effective September 1, 2018. 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. § 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). With regard to the great toes, right knee, and left knee, as the appeal arises from the original assignment of disability evaluations following an award of service connection, the severity of the disabilities at issue are 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, 126 (1999). With regard to the thoracic spine disability, entitlement to compensation has already been established, thus the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board has reviewed all the evidence in the Virtual folders, which includes: his contentions, treatment records, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Gout of the left and right great toes Service connection is in effect for gout of the left and right great toes, separately rated 10 percent disabling, per 38 C.F.R. § 4.71a, Diagnostic Code 5002, Rheumatoid arthritis, and Diagnostic Code 5281, Hallux rigidus. The Rating Schedule provides that gout, found at Diagnostic Code 5017, is to be rated under the criteria for rheumatoid arthritis, Diagnostic Code 5002. See 38 C.F.R. § 4.71a. Rheumatoid arthritis as an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating warrants a 100 percent disability rating; with less symptomatology than the criteria for a 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods a 60 percent evaluation is assigned; with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year a 40 percent evaluation is assigned; and one or two exacerbations a year in a well-established diagnosis warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5002. For chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, the disability is rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. It is noted that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion and that the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation should be assigned. See 38 C.F.R. § 4.71, Diagnostic Code 5002. Per Diagnostic Code 5281, hallux rigidus is rated as severe hallux valgus. Under the rating criteria for hallux valgus, Diagnostic Code 5280 provides for a 10 percent rating for unilateral hallux valgus with operated with resection of metatarsal head, and severe, if equivalent to amputation of great toe. Diagnostic Code 5284 provides a 10 percent rating for moderate impairment, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Service connection is also in effect for plantar fasciitis, left foot heel spur, and plantar fasciitis, right foot heel spur, separately rated 10 percent disabling, effective December 26, 2008 to May 3, 2018, per 38 C.F.R. § 4.71a, Diagnostic Code 5020 (synovitis) and bilateral plantar fasciitis, rated 30 percent disabling, effective May 3, 2018, per 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flatfoot, acquired). Such ratings are not in appellate status. A July 2009 private treatment record reflects a diagnosis of gout. 08/14/2009 Medical Treatment Record-Non-Government Facility at 3. A July 2010 VA examination reflects the Veteran’s complaints of bilateral great toe pain since 2007. He reported being diagnosed with gout in January 2009, and reported symptoms of pain, redness, and stiffness in the great toes. He experiences pain, swelling, heat, and redness while standing, walking, and at rest, and stiffness. During flare-ups, he loses motion (approximately 50 percent) and pain affects his gait resulting in him walking slower. There was evidence of painful motion and tenderness. There was pain with range of motion of the MTP and IP joints of the great toe. Motion at the MTP joint of the left great toe was 10 degrees plantar flexion, and 30 degrees dorsiflexion. Motion of the MTP joint of the right great toe was 15 degrees plantar flexion, and 35 degrees dorsiflexion. There was tenderness to palpation over the MTP joint of the great toe. On x-ray examination of the right foot, there was no evidence of fracture or dislocation. There were mild degenerative changes at the first MTP joint as well as mild diffuse tarsal degenerative changes and plantar heel enthesophyte. On x-ray examination of the left foot, there was no evidence of fracture or dislocation. Large plantar and Achilles calcaneal were noted as were slight tarsal degenerative changes. The examiner diagnosed gout of the bilateral feet, great toes. A March 2016 VA examination reflects the Veteran’s report of gout in his big toes. He would take Endocin for two days to resolve the pain. During flare-ups, he has to rest with his feet up. The examiner commented that the Veteran has painful big toes. A May 2018 VA examination reflects diagnoses of plantar fasciitis, degenerative arthritis, and bilateral heel spur. The examiner reported a history of gout to his bilateral great toes with osteoarthritis, bilateral plantar fasciitis, and heel spurs. The examiner noted that his first diagnosis of gout in the feet was in March 2009. The examiner noted that the diagnosis of gout was in the assessment, but the physical examination was normal and there was no other diagnostic or clinical criteria during the visit. The examiner stated that medical records are silent for gout or treatment after this. The examiner stated that it appears the diagnosis was made based on a reported history only as no objective evidence was noted in the available record. The mention of gout on his separation physical examination in 2008 and x-ray did not reveal radiologic evidence of gouty arthritis of the feet at that time. The examiner was unable to locate a gout diagnosis based on clinical features or diagnostic criteria. The examiner stated that diagnosis of gout arthritis in the feet was erroneous as there is no objective evidence in available records to support this claim. The examiner characterized the Veteran’s bilateral toes as mild. Per the most recent VA examination, the medical examiner opined that the Veteran does not have signs or symptoms of gout. Despite the lack of objective findings of gout, the evidence of record clearly establishes that the Veteran has symptomatology associated with his big toes in the form of pain, swelling, redness, and stiffness, which affects his gait at times. Ratings in excess of 10 percent are not warranted for the Veteran’s great toe disabilities. The 10 percent ratings in effect contemplate his chronic residuals of limitation of motion and other symptomatology associated with the great toes per Diagnostic Code 5002. The highest assignable ratings for hammer toe and amputation of the great toe is 10 percent, and in this case the examiner has not opined that the symptomatology associated with the toes is equivalent to amputation. The Board has given consideration to other rating criteria, such as Diagnostic Code 5284; however, a 10 percent rating is warranted for moderate symptomatology and the most recent examiner described his great toe symptomatology as mild in nature. Even considering lay statements as to flare-ups, the weight of the evidence is against finding a disability picture of the great toes that equates to moderately severe foot injury, as would be required to attain a 20 percent evaluation under Diagnostic Code 5284. There are no other diagnostic criteria which could provide the basis for ratings in excess of 10 percent. The Board acknowledges the Veteran’s belief that his great toe disabilities warrant ratings higher than 10 percent. The Veteran is competent to report his symptoms, but he is not competent to determine whether his service-connected disabilities warrant higher ratings under the applicable rating criteria. The VA examinations of record outweigh the Veteran’s contentions. Based on consideration of the totality of the Veteran’s symptoms, there is no probative evidence that his left and right great toe symptoms are moderately severe in nature per Diagnostic Code 5284, and there is no basis for the assignment of disability ratings in excess of 10 percent at any time during the appeal period. Left and right knees For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, a 100 percent rating is warranted for 1 year following implantation of prosthesis in the case of prosthetic replacement of knee joint. Note (1) states that the 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Note (2) states that special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Following a total rating for 1 year, a 30 percent rating is the minimum rating for knee replacement (prosthesis) and a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: 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. Evaluations for limitation of extension of the knee are assigned as follows: 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. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 2004). The Veteran’s right knee is rated 10 percent disabling per 38 C.F.R. § 4.71a, Diagnostic Code 5260. As will be detailed below, there is no basis for the assignment of a rating in excess of 10 percent. No compensable limitation of flexion nor compensable limitation of extension has been shown at any point during the course of this appeal. For the period prior to July 31, 2017, the Veteran’s left knee is rated 10 percent disabling per Diagnostic Code 5260, and from September 1, 2018 his left knee is rated 30 percent disabling per Diagnostic Code 5055. As will be detailed below, there is no basis for the assignment of a rating in excess of 10 percent for the period from July 10, 2009 to July 30, 2017, nor a rating in excess of 30 percent from September 1, 2018. With regard to the right knee for the entire appeal period, and the left knee for the period prior to July 31, 2017, based on review of the evidence of record, to include the Veteran’s subjective complaints, there is no basis for the assignment of higher ratings in contemplation of the schedular criteria. The initial 10 percent ratings were assigned in contemplation of his osteoarthritis with limitation of motion with pain. Such limitation of motion, however, is noncompensable per Diagnostic Codes 5260 and 5261. The most severe limitation of flexion shown on any of the medical reports of record was to 110 degrees with regard to both the left and right knees, with normal extension in both knees. 05/09/2018 C&P Exam at 16-17; 03/23/2016 C&P Exam; 07/17/2010 VA Examination at 12. The Veteran did not demonstrate a limitation of flexion to 30 degrees or less at any time during the pendency of this appeal, nor compensable extension. Thus, a higher evaluation based on limitation of flexion and extension under the above cited rating code is not warranted. Flare-ups were reported, and the examiners in 2016 and 2018 could not estimate their functional impact without resort to speculation. To the extent this response is deficient, it is noted that no challenges were raised as to the examination reports. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Moreover, it is noted that it would take an additional 75 degrees of limitation to reach a compensable loss of flexion under Diagnostic Code 5260 and an additional 10 degrees of limited extension to reach compensable levels under Diagnostic Code 5261. Nothing of record suggests that flare-ups would have that extreme of an impact here. Following the assignment of the temporary total rating pursuant to 38 C.F.R. § 4.30 in effect from July 31, 2017, as a result of his left knee surgery, a 30 percent disability rating was assigned to status post total knee arthroplasty, left knee, effective September 1, 2018, pursuant to Diagnostic Code 5055. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board finds that the 30 percent disability rating assigned contemplates any total knee replacement residuals such as pain, limitation of motion, or stiffness. A 60 percent rating is not warranted as chronic residuals consisting of severe painful motion or weakness in the affected extremity have not been shown. There is no support for the assignment of a rating in excess of 30 percent based on any other diagnostic criteria. Specifically, a disability rating in excess of 30 percent is not warranted pursuant to Diagnostic Codes 5260 and 5261. The May 2018 VA examination conducted subsequent to the Veteran’s surgery reflects flexion to 120 degrees with pain limiting flexion. Pain was noted on examination but this did not result in or cause functional loss. There was no change on repetitive motion. As such, range of motion findings amount to noncompensable flexion or extension. A higher rating is not warranted per Diagnostic Code 5260 or 5261, the limitation of motion criteria, even considering factors such as pain. Such limitation of motion with pain cannot also be said to be tantamount to severe painful motion, thus a higher rating is not warranted per Diagnostic Code 5055. Pursuant to a VA General Counsel opinion, separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). There, however, is no evidence of limitation of extension; thus, separate ratings are not warranted in the right or left knee for any period contemplated by this appeal. With regard to Diagnostic Code 5257, there is no objective evidence of instability or subluxation to warrant separate compensable ratings under this diagnostic criteria. Testing in July 2010, March 2016, and May 2018 reflect normal findings on testing for joint instability and subluxation. Such examinations were conducted by competent medical professionals who performed objective testing designed to measure any instability, subluxation, and locking, and such testing was negative. Separate 20 percent ratings are also not warranted pursuant to Diagnostic Code 5258 contemplating dislocated, semilunar cartilage, as locking and effusion have not been shown. With regard to the other potentially applicable rating codes, DC 5256 provides a higher rating for ankylosis of the knee; however, ankylosis of the right and left knee joints have not been shown. DC 5262 allows for evaluations ranging from 10 to 40 percent for tibia and fibular impairment when there is nonunion with loose motion requiring a brace or malunion with knee or ankle disability; however, tibia and fibular impairment has not been shown. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). In finding that a higher evaluation is not warranted for any period, the Board has considered the Veteran’s subjective complaints, as well as whether there is additional functional loss due to lack of endurance, weakness, fatigue, and pain per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the respective 10 percent ratings pursuant to Diagnostic Codes 5003-5260, and the 30 percent rating assigned to the left knee, effective September 1, 2018. The examinations and treatment records on file reflect the Veteran’s complaints of pain and stiffness, which cause functional limitations. The Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id; 38 C.F.R. § 4.40. The findings reflected in the VA examination reports do not support a rating in excess of the respective ratings already in effect. In consideration of the DeLuca factors, while it is clear that the Veteran experiences pain and limitations due to his right and left knee disabilities, the disability ratings in effect take into consideration the Veteran’s functional limitations and loss associated with his disabilities. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for higher rating. Applying all of the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran’s impairment of the left and right knees does not suggest that he has sufficient symptoms at any time during the pendency of this appeal, so as to warrant the assignment of evaluations in excess of 10 percent for the right and left knees, and in excess of 30 percent for the period from September 1, 2018. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thoracic spine A 10 percent rating is in effect for degenerative disc disease of the thoracic spine, effective June 30, 2009, per 38 C.F.R. § 4.71a, Diagnostic Code 5243 (intervertebral disc syndrome)-5237 (lumbosacral strain). Under the General Rating Formula for Diseases and Injuries of the Spine, 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 not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Initially, based on review of the evidence of record, the Board has determined that a 60 percent rating is warranted for the period from May 1, 2012 to April 30, 2012, per Diagnostic Code 5243, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Per a March 29, 2013 treatment record, the Veteran’s private physician stated that the Veteran had incapacitating episodes of more than 6 weeks over the past 10 month period due to a free fragment disc rupture just below the disc space at L4-5 on the right effacing the right L5 nerve root, and right radiculopathy secondary to a disc rupture at L4-5 on the right. To give him pain relief, he underwent a lumbar epidural steroid, and he underwent surgery on November 15, 2012. He was prescribed antibiotics, muscle relaxers, as well as pain medications. In December 2012, the Veteran reported that he discontinued the use of narcotic pain medication, and range of motion limitations and lifting limitations were discussed. The physician stated that the Veteran would qualify for a rating of 8 to 10 percent impairment rating based on the AMA guidelines for a disc rupture with resolved radiculopathy. 04/04/2013 Medical Treatment Record-Non-Government Facility at 1. Such 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the period prior to May 1, 2012, and from May 1, 2013, the evidence of record does not support a rating in excess of 10 percent. The medical evidence of record does not reflect any further incapacitating episodes nor prescribed bedrest due to his thoracolumbar spine disability, thus there is no basis for the assignment of a rating per Diagnostic Code 5243 for the period prior to May 1, 2012, and from May 1, 2013. For the period prior to May 1, 2012, and from May 1, 2013, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the thoracolumbar disability. The Board acknowledges the Veteran’s lay reports of symptoms such as pain, fatigue, decreased motion, and weakness, and interference with sitting, standing, and walking. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 60 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A July 2010 VA examination reflects the Veteran’s subjective complaints of fatigue, decreased motion, weakness, and pain. There were objective findings of guarding, without spasm, atrophy, pain with motion, tenderness, or weakness. Flexion was to 90 degrees with no pain on motion, without any changes on repetitive motion. The examiner commented that the Veteran has decreased mobility, problems with lifting and carrying, and pain. A March 2016 VA examination reflects the Veteran’s report that when he sits up his back seizes up, and when sitting he is unable to move to stand without great difficulty. Flexion was to 90 degrees with pain, but it did not result in or cause functional loss. There was no change on repetitive motion testing. Pain, lack of endurance, and incoordination were noted to cause functional loss but there was no evidence that it would affect range of motion. There was no muscle spasm, and localized tenderness and guarding did not result in abnormal gait or abnormal spinal contour. The May 2018 VA examination report reflects flexion to 90 degrees with pain that did not result in or cause functional loss. There was no change on repetitive motion testing. The Veteran complained of pain, stiffness, and limited range of motion. The examiner commented that the Veteran may have limited range of motion and increased pain with prolonged walking or standing which may impact his pain level and/or decrease his ability to perform tasks that require lifting and stooping. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent rating for his thoracolumbar spine disability, as even with consideration of his functional limitations forward flexion of 60 degrees or less is not shown, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In consideration of the DeLuca factors, there have been objective findings of pain, lack of endurance, and incoordination. However, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for a higher rating even with consideration of pain and repetitive motion. The 10 percent in effect for limitation of motion symptomatology for the period prior to May 1, 2012 and from May 1, 2013, compensates him for limited and painful motion, and assigning the next higher rating for painful motion would not accurately assess the resulting function loss, even when considering the pain. The 10 percent rating takes into consideration the Veteran’s functional loss associated with his lumbar spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for the period prior to May 1, 2012, and from May 1, 2013. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher 20 percent evaluation. For the period from May 1, 2012 to April 30, 2013, the 60 percent rating is the maximum assignable rating for incapacitating episodes, and there is no basis for the assignment of a higher rating as the rating takes into consideration the Veteran’s functional loss and limitations during this period. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine which is not shown. Regarding neurological impairment, the July 2010 VA examination reflects the Veteran’s complaints of numbness of the right leg and foot. On neurological testing, there was decreased vibratory sense in the right lateral thigh and lateral aspect of the lower leg, and absent vibratory sense on the lateral foot. There were decreased symptoms with pain or pinprick and light touch. A May 2012 MRI of the lumbar spine reflects lumbar radiculopathy. 09/26/2012 Medical Treatment Record-Non-Government Facility. A June 2012 private treatment record reflects an assessment of right leg radiculopathy in the L5 distribution. 04/04/2013 Medical Treatment Record-Non-Government Facility at 4. A March 2013 private treatment record reflects right radiculopathy secondary to a disc rupture at L4-5 on the right but that subsequent to the November 2012 surgery his radiculopathy was resolved. Id. at 1. On examination in March 2016 and May 2018 lumbar radiculopathy was not shown. Thus, based on the above, the Board finds that a 10 percent rating is warranted for radiculopathy of the right lower extremity for the period from June 30, 2009 to April 30, 2012 per 38 C.F.R. § 4.124a, Diagnostic Code 8520. Such rating is assigned based on the objective findings of mild incomplete paralysis of the sciatic nerve. As indicated, the July 2010 VA examination reflects the Veteran’s subjective complaints of numbness in the right leg and foot, and objective findings of absent/decreased vibration, decreased pain/pinprick, and decreased light touch in the right lower extremity. The June 2012 private treatment record reflects that the Veteran had been experiencing right leg radiculopathy, but examination on that date reflected that the right lower extremity was unremarkable with no wasting of muscles with normal strength and intact sensation with no radiculopathy. A November 2012 private treatment record reflects unremarkable inspection of the right lower extremity with normal strength in all muscle groups except 4/5 dorsiflexors. The examiner characterized the Veteran’s radiculopathy as persistent numbness and pain. 04/04/2013 Medical Treatment Record-Non-Government Facility at 2. Based on the subjective complaints and objective findings contained within the record, such supports a characterization of mild incomplete paralysis, rather than moderate incomplete paralysis. From May 1, 2012, radiculopathy of the lower extremities is not shown on objective examination. Bladder and bowel symptomatology are not shown. Thus, there is no basis for assignment of further ratings for neurological symptomatology. In sum, a 60 percent rating for the spine applies from May 1, 2012 to April 30, 2013; outside of this period an increase rating is denied. A separate 10 percent rating for right leg radiculopathy is warranted. The benefit of the doubt has been applied as appropriate. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.