Citation Nr: 21001204 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-35 611A DATE: January 7, 2021 ORDER An initial rating of 20 percent for thoracolumbar strain/sprain with scoliosis is granted for the entire appeal period. An initial rating of 20 percent for chondromalacia patella, status post right knee ACL surgery with shin splints is granted from July 1, 2013 through August 1, 2018. A rating in excess of 10 percent for chondromalacia patella, status post right knee ACL surgery with shin splints from August 2, 2018 and thereafter is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, throughout the period on appeal, the Veteran’s lumbar spine disability was manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s knee disability was manifested by frequent episodes of locking, pain, and effusion from July 1, 2013 through August 1, 2018. 3. The Veteran had symptomatic removal of semilunar cartilage; but there is no evidence that he had dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint from August 2, 2018 and thereafter. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 20 percent for service-connected low back strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. From July 1, 2013 to August 1, 2018, the criteria for a rating of 20 percent for, chondromalacia patella, status post right knee ACL surgery, with shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 3. From August 2, 2018, the criteria for a rating in excess of 10 percent for, chondromalacia patella, status post right knee ACL surgery, with shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262-5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1989 to June 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. By way of background, in January 2019, the Board determined that additional development was required prior to making a final decision regarding the above issues. In its January 2019 decision, the Board found that with respect to the Veteran’s thoracolumbar strain disability, the August 2018 examination report did not indicate whether the examiner attempted to elicit information and/or any estimate by the Veteran as to the extent of factors that may affect his functional impairment or report the limited functional ability in terms of range of motion and therefore, this claim was remanded. With respect to the Veteran’s right knee chondromalacia patella disability, in its January 2019 decision, the Board remanded this claim because the findings did not meet the specifications of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Through this case, the Court recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” The Board found that the August 2018 VA examiner noted the Veteran’s reports of flare-ups, but did not obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The examiner noted that the functional loss caused by the Veteran’s flare-ups could not be described in terms of ranges of motion without resorting to mere speculation and no rationale was provided for this opinion and the issue was therefore remanded for additional development. In March 2019, the AOJ sent the veteran a subsequent development letter requesting the veteran complete and return a VA Form 21-4142(a) for all VA and non-VA healthcare records for his thoracolumbar strain/sprain with scoliosis condition and chondromalacia patella, status post right knee ACL condition. The veteran submitted the VA Form 21-4142 on March 31, 2019 for Brooke Army Medical Center. The AOJ received the Brook Army Medical Center treatment records on April 12, 2019. On May 5, 2019 the Veteran was given a compensation and pension (C&P) exam for his back and knee condition. The AOJ issued the Supplemental Statement of the Case in June 2020 and determined there would no change in any prior decisions. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. An initial rating in excess of 20 percent for thoracolumbar strain/sprain with scoliosis (back disability) is granted. The Veteran asserts that he is entitled to a rating in excess of 10 percent for his back disability. Specifically, the Veteran asserts that his medical records indicate that he had several physical therapy and chiropractor visits for lower back pain with little relief. The Veteran also asserted that he experienced and continues to experience muscle spasms, which result in an abnormal gait. Moreover, the Veteran stated that his doctor referred him to the pain clinic where he receives injections in his lower back every four to six months for pain relief. The Veteran through his representative also asserts that the Veteran’s back condition includes scoliosis. See Statement in Support of Claim dated October 2015; Appellant’s Brief dated December 2018. 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2016). Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion. Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. Service connection for the Veteran’s thoracolumbar back disability has been established effective July 2013. Throughout the pendency of the appeal, the disability has been assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5237. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. In this regard, ratings under the General Rating Formula are made 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. A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; 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 assigned where there is 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurologic abnormalities are to be rated separately. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The normal combined normal range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). In this regard, the IVDS Rating Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) 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. Medical treatment records reflect continuous complaints of back pain and the Veteran’s assertions of limitation of motion, but do not reflect any range of motion measurements. Shortly before his separation from active duty, a May 2013 treatment note in the Veteran’s service treatment records indicates the Veteran reported sharp pain and a “locked up” right knee and the treating physical therapist noted antalgic gait and a diagnosis of right knee pain and suspected meniscal tear. A private medical treatment report dated July 2013 from Dr. BB states that X-rays of the Veteran’s thoracic spine showed no acute fracture, dislocation or lytic destruction lesion. The X-ray revealed bony mineralization appropriate for patient age and mild dextroconvex curvature mid/lower thoracic spine. The Veteran was afforded a Disability Benefits Questionnaire (DBQ) examination for his back (thoracolumbar spine) in July 2013. The examiner diagnosed the Veteran with thoracolumbar strain/sprain and mild thoracolumbar scoliosis. The Veteran reported that he had flare-ups that impact the function of the thoracolumbar spine and reported that the flare ups cause pain in the lower back during intercourse. Forward flexion was noted to end at 90 degrees or greater with evidence of painful motion beginning at 70 degrees. Extension was noted to end at 30 degrees or greater with objective evidence of painful motion beginning at 20 degrees. Right lateral function, left lateral function, right lateral rotation, and left lateral rotation all had end points of 30 degrees or greater with no objective evidence of painful motion. The examiner noted that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing, but did have functional loss and/or functional impairment of the thoracolumbar spine. The contributing factor of the Veteran’s disability was noted to be pain on movement. It was noted that the Veteran did not experience localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The examiner indicated that the Veteran did not have guarding, muscle atrophy, neurologic abnormalities, IVDS, or muscle spasm of the thoracolumbar spine and displayed normal muscle strength. It was noted that an X-ray of the Veteran’s spine showed mild dextroconvex curvature of the mid to lower thoracic spine, but otherwise, no other radiographic findings involving the lumbar spine. Additionally, the examiner stated that the Veteran’s posture and gait were within normal limits and further noted that the contributing factors including pain, weakness, fatigability, and/or incoordination with additional limitation during flare ups or repeated use over time which result in a 10 degree loss for flexion and extension. In an August 2018 Compensation & Pension (C & P) Examination it was noted that the Veteran has a diagnosis of thoracolumbar spine. The Veteran reported that since his last examination his back was stiff and if he sits too long his back gets stiff and once he starts walking it loosens up. It was also noted that the Veteran reported having functional loss or functional impairment of the thoracolumbar spine and noted that the Veteran reported that he avoids lifting more than 20 pounds. The examiner noted that he was unable to test the Veteran’s initial range of motion because the Veteran exerted insufficient effort for valid range of motion measures. It was noted that there was no pain upon examination. Moreover, the examiner noted that there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. Additionally, it was noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. With respect to the inquiry of whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner stated that he was unable to say without mere speculation. It was noted that since the range of motion examination is not performed after repetitive use over time or after a flare up, the examiner stated he was unable to address functional ability without resorting to mere speculation. It was further noted that the Veteran does not have guarding or muscle spasm of the thoracolumbar spine. It was stated that the Veteran did not have radicular pain, ankylosis of the spine, neurological abnormalities, or IVDS. The Board notes that the probative value of this examination is limited because there are no measurements of flexion but provides some information on the general condition of the Veteran’s back disability. The Veteran was afforded another examination in May 2019. The examiner stated that the Veteran reported that since his last C & P examination his back continues to hurt. It was further noted that in December 2018, the Veteran presented to the SAMMC ED after his back went out and he was treated with Toradol injection. The examiner also noted that the Veteran stated that he has done pain management, water aerobics, and physical therapy. The Veteran reported that his back goes out on average every four to six months. The examiner stated that the Veteran does not report flare-ups of the thoracolumbar spine, but did report having functional loss or functional impairment of the thoracolumbar spine. The Veteran described the functional loss by stating that he cannot run, jog, cycle, or do outside activities and that standing or sitting for longer than 30 minutes produces increased pain. The examiner noted that the Veteran’s range of motion is abnormal. Forward flexion was 0 to 90 degrees and extension was 0 to 20 degrees. The examiner stated that range of motion itself does not contribute to functional loss. It was further stated that there was pain noted upon examination, but that it does not result in/cause functional loss. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. Additionally, the examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions and it was also stated that there was no additional loss of function or range of motion after three repetitions. It was noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that Veteran did not have guarding, ankylosis, muscle atrophy, neurologic abnormalities or muscle spasm of the thoracolumbar spine. The Veteran was noted to have radicular pain. It was further noted that the Veteran did have IVDS of the thoracolumbar spine, but has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Moreover, it was noted that the Veteran uses assistive devices to include braces occasionally as a mode of locomotion. Additionally, it was noted that there is no functional impairment of an extremity such that no effective function remains other than that which would be equally served by amputation with prosthesis due to the Veteran’s thoracolumbar spine condition. Imaging studies of the thoracolumbar spine were performed and arthritis was documented. The impression revealed mild progression of arthritis with new moderate degenerative changes at L3-4 and mild degenerative changes as L5-S1. It was noted that there were stable L4-5 degenerative changes. It was also noted that this results in moderate foraminal narrowing bilateral at L3-4 and L4-5. Based on review of the record, the Board finds that a 20 percent rating, but no higher, for the Veteran’s thoracolumbar strain/sprain disability is warranted. The Board notes that the Veteran has a lengthy history of treatment for his back, which includes chronic pain and the use of assistive devices. The Board recognizes that the evidence does not indicate that the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees during the appeal period. Further, there is no evidence of ankylosis, either favorable or unfavorable, of the lumbar spine. Moreover, the July 2013, August 2018 and May 2019 examiners each noted that the Veteran did not experience guarding, ankylosis, muscle atrophy, neurologic abnormalities or muscle spasm of the thoracolumbar spine. The Board finds the opinions of the July 2013 and May 2019 VA examiners highly credible, probative, and persuasive against higher ratings because the opinions were based on the Veteran’s pertinent medical history as well as the results of a physical examination, and they give a thorough, well-explained rationale for all opinions; the reports provide an adequate basis for the diagnosis and opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that although the numerical measurements of the Veteran’s flexion do not meet the 20 percent criteria, the Board places significant probative value on the Veteran’s assertions that he consistently experiences muscle spasms, which result in an abnormal gait, pain, and scoliosis. This is bolstered by the May 2013 service treatment record that indicated the Veteran’s antalgic gait shortly before his separation from service. The Veteran is competent to report certain obvious symptoms of his spine disability but not to identify a specific level of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board resolves reasonable doubt in the Veteran’s favor, and finds that a 20 percent rating is warranted for the entire period on appeal. Effective May 1, 2019, the Veteran is now service-connected for radiculopathy of the bilateral lower extremities (sciatic) due to his back condition based upon the findings of the May 2019 VA examination. The Board has considered whether a separate evaluation is warranted for neurological symptoms associated with the Veteran’s service-connected lumbar spine disability prior to May 2019. The Board finds that the preponderance of the medical evidence of record prior to that time reveals no neurological abnormalities due to his service-connected spine disability. Specifically, the July 2013 and August 2018 VA examiners noted that the Veteran did not have any neurological abnormalities. Thus, additional or earlier ratings for neurological abnormalities prior to May 1, 2019, are not warranted. See 38 C.F.R. § 4.71, General Rating Formula, Note (1). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a higher evaluation for the Veteran’s lumbar spine strain is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the newly assigned 20 percent rating. In this regard, the Board observes that during the August 2018 examination, it was noted that there was no pain upon examination. With respect to the May 2019 examination, the Board acknowledges that the Veteran reported undergoing pain management and during the course of the examination, it was noted that the Veteran experienced pain, however, there was no evidence of pain with weight bearing noted upon examination. The May 2019 examiner specifically noted that the Veteran’s pain does not result in or cause functional loss and further noted that there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. Thus, the Board finds that the effect of the pain and limited motion in the Veteran’s back is contemplated in the currently assigned 20 percent disability evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In addition, there is no indication that the Veteran has had any incapacitating episodes. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Though the May 2019 VA examination report reflects the Veteran has IVDS the medical evidence of record including the examination itself shows that the Veteran has not been prescribed bed rest by a physician at any point during the appeal. As such, to the extent these criteria are for application, the Veteran has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under DC 5003 degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, 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 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. Here, as noted above, the May 2019 imaging studies revealed that the Veteran had arthritis of the thoracolumbar spine. In this case, however, even with a current diagnosis of degenerative arthritis, a separate rating under DC 5003 would not be warranted. The Veteran’s 20 percent rating under DC 5237, as discussed above, was based on pain on movement including muscle spasms and guarding which likely resulted in scoliosis and a separate rating under DC 5003 would be for the same symptomatology. As separate ratings may not be assigned for the same symptomatology, a separate 10 percent rating under DC 5003 for the Veteran’s painful motion is not warranted. Thus, the Board concludes that the Veteran’s thoracolumbar strain/sprain with scoliosis (back disability) is more closely approximated by the criteria for a rating of 20 percent. A disability rating of 20 percent and no higher is warranted for the Veteran’s back disability. 2. An initial rating of 20 percent for chondromalacia patella, status post right knee ACL surgery with shin splints is granted from July 1, 2013 through August 1, 2018. 3. A rating in excess of 10 percent for chondromalacia patella, status post right knee ACL surgery with shin splints from August 2, 2018 and thereafter is denied. The Veteran asserts that he is entitled to a rating in excess of 10 percent for his right knee disability for the entire appeal period. Specifically, the Veteran asserts that his medical records indicate that he has experienced frequent episodes of locking, pain, and joint effusion. The Veteran further asserts that his MRI notes that there is irregularity of the posterior horn of the lateral meniscus, consistent with tear versus postoperative appearance. The Veteran asserts that he experiences severe pain several times daily and at times he is unable to put any weight on his leg. See Statement in Support of Claim dated October 2015. The Veteran is currently assigned a 10 percent evaluation for his diagnosed right knee chondromalacia patella injury and evaluated under Diagnostic Code 5262-5259. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Under DC 5262, a 10 percent disability rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Id. Malunion is "union of the fragments of a fractured bone in a faulty position." Dorland’s Illustrated Medical Dictionary 1115 (31st ed. 2007). Nonunion is the “failure of the ends of a fractured bone to unite.” Id. at 1309. Disability from malunion of the tibia shaft is produced mainly by rotational deformity, lateral and posterior bowing, and usually some degree of shortening. See Canale & Beaty, Campbell's Operative Orthopedics 2931 (12th ed. 2012). Symptoms may include ankle, knee, or back pain, gait disturbances, and a cosmetically unacceptable deformity. Id. A malunited fracture may also impair function by blocking the movements of the neighboring joints. Id. Looking to the plain meaning of the terms used in the rating criteria, "disability" means "incapacity or lack of ability to function normally" that may be either physical, mental, or both, including anything that causes such incapacity. Dorland’s Illustrated Medical Dictionary at 533. The U.S. Court of Appeals for Veterans Claims has held that the regulatory definition of “disability” is the “impairment of earning capacity resulting from such diseases or injuries and their residual conditions.” Further “impairment” is “any abnormality of, partial or complete loss of, or the loss of the function of, a body part, organ, or system” that is “due directly or secondarily to pathology or injury and may be either temporary or permanent.” Dorland’s Illustrated Medical Dictionary at 936. Thus, the requirement of knee or ankle “disability” under DC 5262 is broad enough to encompass all symptoms, including pain, limitation of motion, stiffness, and instability. The other requirement for a compensable rating under DC 5262 is that there be malunion or nonunion of the tibia and fibula. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The terms “slight,” “moderate,” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. For limitation of motion, there are three potentially applicable DCs. DC 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension is rated under Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, DC 5261. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, DC 5003, for degenerative arthritis, provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, as discussed above. The criteria, discussed in detail above, apply to the knee as a major joint. 38 C.F.R. § 4.45(f). A private medical treatment report dated July 2013 by Dr. BB reveals that X-ray results of the Veteran’s right knee show no acute fracture, dislocation or lytic destruction lesion. It was also noted that bony mineralization was appropriate for the patient’s age. Additionally, it was noted that heterogenous bone density was seen at the distal femur and proximal tibia with orthopedic screws in place consistent with prior ligament surgery. The Veteran’s post service treatment notes include X-ray impressions regarding the Veteran’s right knee condition. A February 2017 X-ray report revealed no evidence of acute fracture, dislocation or destructive lesion in the right knee. The report noted that there is no suprapatellar joint effusion and that the Veteran is status post anterior cruciate ligamentous repair. Additionally, the report stated that there was mild to moderate 3 compartment joint space narrowing with mild hypertrophic degenerative changes. An MRI from January 2013 included impressions of the Veteran’s right knee which showed (1) irregularity of the posterior horn of the lateral meniscus consistent with tear versus postoperative appearance; (2) status post ACL repair with intact ACL graft; and (3) chondromalacia and osteoarthritis. A May 2013 X-ray of the right knee revealed that anterior cruciate ligament reconstruction had been performed and that there was mild joint space narrowing. Additionally, it was noted that there was moderate subchondral irregularity of the articular surfaces, with prominent osteophytes and small joint effusion. It was further noted that there was mild thickening of the patellar tendon which may reflect tendinosis or prior graft site for the ACL surgery. An ossification was noted to be present within Hoffa’s fat pad, however, no fracture, erosion, or periosteal elevation was identified. The Veteran was afforded a DBQ examination for his right knee in July 2013. The examiner diagnosed the Veteran with chondromalacia patella s/p right knee ACL surgery and patellofemoral syndrome. It was noted that the Veteran reported that he had flare ups in the right knee and cannot stand or sit for longer than 20 minutes and that his legs become stiff; when walking, running, or cycling, his leg locks up. The Veteran’s right knee flexion measurement was recorded as 140 degrees or greater with no objective evidence of painful motion and right extension was recorded as 0 degrees with no objective evidence of painful motion. The examiner noted that the right knee caused disturbance of locomotion and there was positive apprehension sign and painful crepitus with manipulation in addition to tenderness or pain to palpation. The examiner noted that the right knee history of meniscal tear, locking, pain, and effusion. It was noted that the Veteran had a meniscectomy January 1994. Additionally, it was noted that the Veteran had residuals of numbness in the right calf, stiffness, inability to extend knee fully, mild pain. It was also noted that the Veteran reported shin splints with no current symptoms. The Veteran’s knee was examined in August 2018. The examiner diagnosed the Veteran with chondromalacia patella, s/p right knee ACL surgery and right shin splint. It was noted that the Veteran reported flare-ups of the knee and/ or lower leg and the Veteran’s description of the flare-ups in his own words was that if he sits too long, his knee gets stiff and if he keeps it straight he had to physically lift it up so that he can bend it. The Veteran’s flexion of the right knee was 10 to 130 degrees and extension of the right knee was recorded as 130 to 10 degrees. It was noted that flexion range of motion exhibited pain, but there was no evidence of pain with weight bearing. Additionally, it was noted that there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Specifically, there was mild tenderness along the medial joint line. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. The examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Additionally, the examiner noted that he/she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. With respect to flare ups of the right knee the examiner also noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare ups. With respect to the matters of repetitive use and flare ups, the probative value is limited since the examiner was unable to make an opinion without resorting to speculation on these specific matters. It was noted that the examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination limited functional ability with flare ups since the range of motion examination is not performed after repetitive use over time or after a flare up. The right knee strength for flexion and extension was 5/5, normal strength. The examiner noted that the right knee history of meniscal tear and frequent episodes of joint locking, although none was seen on examination. The examination stated that there was no ankylosis, recurrent subluxation, or recurrent effusion in the right knee. It was noted that the Veteran used the assistive device of braces on a regular basis. Additionally, imaging studies documented degenerative or traumatic arthritis in the right knee. The examiner noted that there was no evidence of pain on passive range of motion testing. The Board notes that although the August 2018 examination provided useful information about the Veteran’s knee disability, it does not meet the specifications of Sharp and therefore has limited probative value. Specifically, the VA examiner noted the Veteran’s reports of flare-ups, but did not obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flareups. Further the examiner found that the functional loss caused by the Veteran’s flare-ups could not be described in terms of range of motion without resorting to speculation and neglected to provide any rationale. A May 2019 examination states that the Veteran has a diagnosis of chondromalacia patella, status post right knee ACL surgery, with shin splints. It was noted that the Veteran stated that since his last C & P examination, his right knee continues to hurt. Additionally, the Veteran reported that his knee locks up and that his primary care doctor treats this condition. The examiner noted that the Veteran did not report flare-ups of the knee or lower leg. It was noted that the Veteran reported having functional loss or functional impairment of the joint or extremity, including but not limited to repeated use over time. The flexion of the Veteran’s knee measured 0 to 130 degrees. The Veteran’s extension measured 130 to 0 degrees. It was noted that the range of motion itself did not contribute to functional loss. Further, the examiner noted that the flexion range of motion exhibited pain, but there was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue which included mild tenderness to the lateral patella. It was also noted that there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. It was noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use of time with respect to the right knee. The Veteran’s muscle strength of the right knee for both flexion and extension was rated 5/5 as normal muscle strength. Moreover, there was no ankylosis of the right side, no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion. It was also noted that the Veteran had shin splints that affected his right side, but this condition does not affect range of motion of the knee or ankle. The current symptoms were noted to be “none; no pain response with palpation of medial tibia,” as documented by the examiner. Additionally, it was noted that the Veteran did have surgery for an ACL repair and uses the assistive device of a brace on a constant basis. It was noted that imaging studies were conducted that revealed degenerative or traumatic arthritis of the right knee. The examiner noted that there is evidence of pain on passive range of motion testing and the opposing joint is noted to be undamaged. The examiner found no evidence of pain when the joint is used in non-weight bearing. In this case, the Board finds that the current symptomatology associated with the Veteran’s service-connected right knee do not warrant a compensable rating under Diagnostic Code 5262 because there is no evidence of malunion of the tibia and fibula which resulted in a slight knee or ankle disability. With respect to Diagnostic codes 5260 and 5261, the Veteran’s flexion and extension range of motion measurements of the right knee do not render him eligible for a compensable rating based on limitation of motion during the appeal period under either diagnostic code. See 38 C.F.R. § 4.71a, DC 5260 and 5261. As stated above, DC 5259 assigns a 10 percent rating when the joint remains “symptomatic” following removal of the meniscus. 38 C.F.R. § 4.71a. The record reflects that the Veteran had a meniscectomy in January 1994 and suffers irregularity of the posterior horn of the lateral meniscus consistent with a tear. Therefore, a 10 percent rating under diagnostic code 5259 for the right knee is appropriate. As 10 percent is the maximum rating for this disability under this diagnostic code, the Veteran is not eligible for a rating higher than 10 percent in this regard. The Board has also assessed the Veteran’s right knee disability under diagnostic code 5258 which provides that a 20 percent rating is assigned for dislocation of the semilunar or meniscal cartilage of the knee, with frequent episodes of “locking,” pain, and effusion into the joint. The Board finds that a rating of 20 percent is appropriate here from July 1, 2013 to August 1, 2018 as the Veteran has experienced significant locking and pain in the right knee during this timeframe. The Board specifically acknowledges the Veteran’s statements that he has frequent episodes of locking, pain, and joint effusion and finds the Veteran competent and credible to report these symptoms. Lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)). Furthermore, the Board acknowledges that the July 2013 DBQ examination states that the Veteran had right knee history of meniscal tear, locking, pain, and effusion, which supports the Veteran’s assertions. This is further supported by the service treatment record from May 2013 that indicated a “locked out” right knee shortly before the Veteran’s separation from active service. Based on the foregoing the Board grants the Veteran a 20 percent rating for chondromalacia patella, status post right knee ACL surgery with shin splints from July 1, 2013 through August 1, 2018 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5258. From August 2, 2018 and thereafter however, the record does not support a disability rating for the Veteran’s right knee disability pursuant to Diagnostic Code 5258. Both the Veteran’s August 2018 and May 2019 examinations specifically state that the Veteran had no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion during that timeframe. Therefore, the Board finds that from August 2, 2018 and thereafter, the provisions of DC 5259 better reflect the overall disability picture, and warrant assignment of the current 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262-5259. The Board has also considered whether separate ratings under DCs 5003 and 5259 may be assigned. VA recognizes that separate ratings may be assigned for knee disability under some DCs where the symptomatology supporting the evaluations does not overlap; limitation of motion (5003/5260/5261) and stability (5257) are distinct from each other, for example. 38 C.F.R. § 4.41; see generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Further, VAOPGCPREC 9-04 provides that where a claimant has both limitation of flexion and limitation of extension of the same leg separate ratings under diagnostic codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg. By extension, evaluations under DC 5257 and either or both DC 5260 and DC 5261 are permissible, as each of the three codes measures different criteria. By contrast, an evaluation under DC 5003 may not be combined with one under DC 5260 or DC 5261; DC 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion DCs forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.41. In the case of DCs 5003 and 5259, however, the symptomatology underlying the assignable ratings cannot be distinguished. DC 5003 is based on limitation of motion. DC 5259 is based on unspecified “symptoms,” which include the Veteran’s pain and resulting limitations of function, including movement. To assign evaluations under both simultaneously would constitute prohibited pyramiding, or compensating a Veteran twice for the same manifestations of disability. 38 C.F.R. § 4.14. Accordingly, VA has properly elected application of only one DC, 5259, in rating the right knee disability. No higher rating is possible under that DC, nor does the disability picture presented indicate application of DC 5258 from August 2, 2018 is appropriate, as is noted above. No evaluation in excess of the current 10 percent rating, or assignment of additional compensable ratings, for the right knee disability, is warranted from August 2, 2018 and thereafter. The Board has considered the Veteran’s statements concerning the symptomology of his right knee disorder and his assertion that the pain and other claimed symptoms warrant an increased rating above 10 percent from August 2, 2018 and thereafter. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he can observe, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the objective evidence provided by the VA examiners to be more persuasive than the Veteran’s contentions that an increase rating in excess of 10 percent is warranted from August 2, 2018 and thereafter. Although the Veteran alleges that he experienced locking, pain, and effusion in the right knee throughout the entire appeal period, the objective medical evidence does not support that the Veteran endured these symptoms from August 2, 2018 and thereafter. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A rating in excess of 10 percent for chondromalacia patella, status post right knee ACL surgery with shin splints from August 2, 2018 and thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262-5259 is not warranted. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, Associate 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.