Citation Nr: 21005004 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-41 885 DATE: January 28, 2021 ORDER Entitlement to an initial rating for urinary disability in excess of 40 percent prior to March 29, 2018 is denied. Entitlement to an initial rating of 60 percent for a urinary disability from March 29, 2018 to April 30, 2019 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. Entitlement to an initial rating for urinary disability in excess of 60 percent starting April 30, 2019 is denied. Entitlement to a rating for gout in excess of 20 percent before April 30, 2019 is denied. Entitlement to a rating for gout in excess of 60 percent beginning April 30, 2019 is denied. Entitlement to a 40 percent rating for a right knee disability from May 1, 2018 to May 14, 2018 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. Entitlement to a rating for a right knee disability in excess of 10 percent prior to May 1, 2018 is denied. Entitlement to a rating for a right knee disability in excess of 60 percent starting July 1, 2019 is denied. Entitlement to a rating for left lower extremity peripheral neuropathy in excess of 10 percent prior to February 15, 2019 is denied. Entitlement to a 40 percent rating for left lower extremity peripheral neuropathy starting February 15, 2019 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. Entitlement to a rating for right lower extremity peripheral neuropathy in excess of 10 percent prior to February 15, 2019 is denied. Entitlement to a 40 percent rating for right lower extremity peripheral neuropathy starting February 15, 2019 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to ratings for a low back disability in excess of 10 percent prior to February 12, 2020 and in excess of 40 percent starting on this date is remanded. FINDINGS OF FACT 1. Prior to March 29, 2018, the Veteran’s urinary disability was manifested by urinary frequency of voiding in intervals less than one hour or awaking to void five or more times per night; he did not have voiding dysfunction that required the use of absorbent materials that required changing more than four times per day, or renal dysfunction. 2. From March 29, 2018, the Veteran’s urinary disability was manifested by voiding dysfunction that required the use of absorbent materials that required changing more than four times per day; at no time during this period was there evidence of renal dysfunction with peristent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 3. Prior to April 30, 2019, the Veteran’s gout more nearly approximated one or two exacerbations a year; symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating episodes occurring three or more times a year was not shown. 4. Beginning April 30, 2019, the Veteran’s gout was manifested by four or more incapacitating episodes a year; constitutional manifestations associated with active joint involvement, total incapacitation was not shown. 5. Prior to May 1, 2018, the Veteran’s right knee disability was manifested by full extension and flexion limited to no worse than 90 degrees. 6. From May 1, 2018 to May 14, 2018, the Veteran’s right knee disability was manifested by limitation of extension to 25 degrees. 7. Beginning July 1, 2019, the right knee disability was manifested by chronic residuals following total knee replacement surgery consisting of severe painful motion or weakness in the affected extremity. 8. Prior to February 15, 2019 the Veteran’s right lower extremity peripheral neuropathy was predominantly manifested by no worse than intermittent tingling and numbness of short duration, full strength, and decreased reflexes productive of no worse than mild incomplete paralysis; moderate incomplete paralysis was not shown. 9. Beginning February 15, 2019, the Veteran’s right lower extremity peripheral neuropathy was predominantly manifested by marked weakness, an inability to walk more than a few steps without an assistive device, deep tendon reflexes 0 to 1/4, and diminished sensation productive of moderately severe incomplete paralysis; severe incomplete paralysis with marked muscular atrophy is not shown. 10. Prior to February 15, 2019 the Veteran’s left lower extremity peripheral neuropathy was predominantly manifested by no worse than intermittent tingling and numbness of short duration, full strength, and decreased reflexes productive of no worse than mild incomplete paralysis; moderate incomplete paralysis was not shown. 11. Beginning February 15, 2019, the Veteran’s left lower extremity peripheral neuropathy was predominantly manifested by marked weakness, an inability to walk more than a few steps without an assistive device, deep tendon reflexes 0 to 1/4, and diminished sensation productive of moderately severe incomplete paralysis; severe incomplete paralysis with marked muscular atrophy is not shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to initial ratings for urinary frequency in excess of 40 percent prior to March 29, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. 2. Entitlement to an initial rating of 60 percent, but no higher, for urinary frequency from March 29, 2018 to April 30, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. 3. The criteria for entitlement to initial ratings for urinary frequency in excess of 60 starting on April 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7517. 4. The criteria for entitlement to ratings for gout in excess of 20 percent before April 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5002, 5017. 5. The criteria for entitlement to ratings for gout in excess of 60 percent beginning April 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5002, 5017. 6. The criteria for entitlement to ratings for a right knee disability in excess of 10 percent prior to May 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5260, 5261. 7. The criteria for entitlement to a 40 percent rating, but no higher, for a right knee disability from May 1, 2018 to May 14, 2018 have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. 8. The criteria for entitlement to ratings for a right knee disability in excess of 60 percent starting July 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5260, 5261. 9. The criteria for entitlement to a rating for left lower extremity peripheral neuropathy in excess of 10 percent prior to February 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 10. The criteria for entitlement to a 40 percent rating, but no higher, starting on February 15, 2019 for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 11. The criteria for entitlement to a rating for right lower extremity peripheral neuropathy in excess of 10 percent prior to February 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 12. The criteria for entitlement to a 40 percent rating, but no higher, starting on February 15, 2019 for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to May 1990. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified before the undersigned during a Travel Board hearing, a transcript of the hearing is of record. It was agreed at the hearing that the record would remain open for 30 days to allow time for the Veteran and his representative to submit private treatment records. The Board remanded these issues in October 2018. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to initial ratings for urinary frequency in excess of 40 percent prior to April 30, 2019 and in excess of 60 starting on that date. The Veteran contends that his disability should be assigned a higher rating. The only criteria that allow for higher ratings are based on renal or voiding dysfunction. Voiding dysfunction is assigned a 40 percent rating when the wearing of absorbent materials must be changed two to four times per day. A maximum rating of 60 percent is assigned when use of an appliance is required or wearing of absorbent materials must be changed more than four times per day. See 38 C.F.R. § 4.115a. For renal dysfunction, a 60 percent rating is assigned if there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is assigned for persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. See 38 C.F.R. § 4.115a. Records prior to March 29, 2018 show the Veteran’s disability did not meet or approximate the criteria for a rating greater than 40 percent. In August 2012 and on the March 2012 VA examination, he reported having only occasional urinary incontinence and he did not request absorbent materials until April 2013. Records in June 2013, December 2013, June 2014, and January 2015 show he used no more than three absorbent pads a day; therefore, at most, he only changed them twice a day. See March 2012 VA Examination and June 2019 and July 2020 CAPRI records. The evidence during this period, therefore, is consistent with the current 40 percent rating. The earliest evidence showing when his disability met the criteria for a higher rating was on March 29, 2018 when the Veteran testified that he changed his absorbent pads at least eight times a day. See March 2018 Hearing Transcript. The Veteran is competent to report his symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). The Board finds his testimony to be credible and probative. Although there is some inconsistency in the reporting of his symptoms with records November 2017 and June 2018 indicating he was continent and a February 2019 treatment stating his baseline urge incontinence was unchanged for years, such evidence is in equipoise; therefore, the Veteran is afforded the benefit of the doubt regarding frequent incontinence. See June 2019 CAPRI records. The April 2019 VA examination showed a history of an increased urinary frequency of 15 a day and 10 times at night. His voiding dysfunction caused leakage requiring absorbent material to be changed four times a day. The frequency of daytime voiding intervals was less than one hour and nighttime awakening five or more times. See June 2019 C&P Exam. In light of the Veteran’s testimony and the medical evidence, his disability is most consistent with a 60 recent rating from March 29, 2018 to April 30, 2019. As noted, a 60 percent rating was already in effect beginning April 30, 2019. At no time during the appeal has the disability warranted assignment of a rating of 60 percent or greater based on renal dysfunction. Persistent edema and albuminuria; or, definite decrease in kidney function; or hypertension that was at least 40 percent disabling has not been shown and lab work has not shown his BUN or creatinine levels have been consistent with a higher rating. Furthermore, he was not shown to have generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to renal dysfunction. See March 2012 VA Examination, June 2019 C&P Exam, and July 2020 CAPRI records. Records in November 2013, June 2015, and December 2015 indicate he had a history of intermittent renal insufficiency, but they also suggest it had been normal since an ultrasound in 2004. See July 2020 CAPRI records. Consequently, this along with the VA examinations indicate there has been no decreased function during the appeal. In light of the above, the Board finds that a preponderance of the evidence is against a rating greater than 40 percent prior to March 29, 2018 and against a rating greater than 60 percent beginning March 29, 2018. However, his disability at least as likely as not met the criteria for a 60 percent rating from March 29, 2018 to April 30, 2019. 2. Entitlement to ratings for gout in excess of 20 percent before April 30, 2019 and in excess of 60 percent beginning on this date. The Veteran contends that his gout should be assigned a higher rating. Gout is rated under Diagnostic Code 5017. According to the Rating Schedule, diseases rated under Diagnostic Codes 5013 through 5024 are to be rated based on limitation of motion of the affected parts as degenerative arthritis, except for gout, which is rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a. Diagnostic Code 5002 assigns various ratings based on whether disability is an active process or is manifested by chronic residuals. Moreover, the ratings for the active process are not to be combined with the residual ratings, and the higher evaluation is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5002. When rating gout as an active process under Diagnostic Code 5002, a minimum 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent rating is assigned for less than the criteria for 100 percent, 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. Finally, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Although Diagnostic Code 5002 does not define an “incapacitating exacerbation,” the term is defined elsewhere in the Rating Schedule, both within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome, and in the rating schedule regarding the digestive system. As used therein, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note (2). Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be 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. 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, Diagnostic Code 5002. There is no indication that the Veteran’s gout met or more nearly approximated the criteria for a rating greater than 20 percent prior to the April 30, 2019 VA examination. On his March 2012 VA examination, the Veteran reported only one flare-up in the previous year that required medical attention and a couple of other episodes that did not. He had three non-incapacitating episodes and no incapacitating episodes in the past year. His gout affected his great toes, elbows, and ankles and it did not result in weight loss or anemia. See March 2012 VA Examination. Treatment records in November 2012 and April 2014 note subsequent gout attacks and in November 2015, he reported having three or more episodes a year. See March 2012 and October 2015 CAPRI records and November 2015 Form 9. In March 2018, he testified that he had gout attacks twice a month and that they were not as severe as in the past. His big toe or ankle would swell and get hot and he was hospitalized at least twice for gout. Even laying a sheet over his toe during an attack would hurt a lot. See March 2018 Hearing Transcript. In January and February 2019, he reported recent flare-ups and stated these occurred every two to three months. See June 2019 and July 2020 CAPRI records. None of these flare-ups were reported as or shown to be incapacitating. Treatment records in April 2014, December 2014, June 2015, and July 2016 note anemia, but also showed his gout was adequately controlled. See July 2020 CAPRI records. Although anemia is contemplated in a higher rating, anemia without weight loss and severe impairment of health is not sufficient to assign a higher rating. Treatment records do show weight loss with a weight of 259 pounds in February 2014 and a weight of 235 in August 2017; however, he was noted to be obese in February 2014 and advised to lose weight. Furthermore, there is no evidence that the anemia and weight loss produced severe impairment of health. In the absence of severe impairment of health produced by weight loss and anemia, or the requisite incapacitating episodes associated with his gout, a preponderance of the evidence is against a rating greater than 20 percent for gout at any time prior to April 30, 2019. A 60 percent rating was assigned effective April 30, 2019 based on the findings of the VA examination on that date. The Veteran’s current symptoms were pain, heat, and swelling during flare-ups. He was impacted by being very limited to perform ordinary activities. He could not walk without assistance. Related symptoms included pain in the ankles, feet, and toes with movement, and limited range of motion. The Veteran had one non-incapacitating episode per year and four or more incapacitating exacerbations per year; the total duration over the past 12 months was from one week to less than two weeks. The most recent exacerbation lasted one week, and the Veteran could not walk, stand, or put anything on his feet. There were no constitutional manifestations associated with active joint involvement that are totally incapacitating. The Veteran did not have weight loss or anemia and his symptoms were not productive of definite impairment of health. See June 2019 C&P Exam. In November 2019 and March 2020, he continued to report having flare-ups every two to three months. See January and July 2020 CAPRI records. During this period, the only higher rating is 100 percent and since the record shows he did not have constitutional manifestations associated with active joint involvement and that he was not totally incapacitated due to his gout, the criteria for a rating greater that 60 percent are not met. For these reasons, a preponderance of the evidence is against a higher rating for gout at any time during the appeal. 3. Entitlement to ratings for a right knee disability in excess of 10 percent prior to May 14, 2018 and in excess of 60 percent starting July 1, 2019. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, knee flexion limited to 45 degrees is assigned a 10 percent rating. Limitation to 30 degrees is assigned a 20 percent rating and limitation to 15 degrees is assigned a 30 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, knee extension limited to 10 degrees is assigned a 10 percent rating. Limitation to 15 degrees is assigned a 20 percent rating, and limitation to 20 degrees is assigned a 30 percent rating. Limitation to 30 degrees is assigned a 40 percent rating. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides 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. The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. 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. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. Diagnostic Code 5055 is used to rate knee replacements. A 100 percent rating is assigned for one year following the implantation of the prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity a 60 percent rating is assigned. The assignment of separate ratings for manifestations of the knee, not contemplated by Diagnostic Code 5055, are precluded by the amputation rule. The amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the extremity. 38 C.F.R. § 4.6. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Veteran contends his right knee disability should be assigned a higher rating. On March 2012 VA examination, the Veteran reported that he wore a brace every three months for a week when his knee became bad. During flare-ups he had limited range of motion. On examination, flexion was to 90 degrees with pain at end. Extension was full and without painful motion. There was no change after repetitive testing. Contributing factors for functional loss/impairment were less movement than normal, pain on movement, disturbances of locomotion, and interference with sitting, standing, and weight-bearing. Muscle strength and stability testing was normal. There was no history of subluxation or meniscal condition. The Veteran regularly used a cane and occasionally used a brace or walker. See March 2012 VA Examination. In November 2015, the Veteran reported having knee instability. See November 2015 Form 9. In January 2018, the Veteran reported that he continued to trip and fall due to right knee weakness. See March 2018 CAPRI. During the March 2018 hearing, the Veteran testified that he usually wore a brace on his right knee. He was not sure if his peripheral neuropathy or his knee was causing his leg to give out. See March 2018 Hearing Transcript. A May 1, 2018 treatment record shows that the Veteran reported his knee had been giving out and causing him to fall at least once a week. There was occasional swelling for four years and he had some painful popping and was unable to rise from a kneeling position. He walked with a limp and had an antalgic gait. He ambulated with the assistance of a walker. On examination, there was no erythema, swelling or genu varum deformity. The active range of right knee motion was flexion to 120 degrees and extension to 25 degrees. There was pain at the extreme limits of range of motion. His passive range of motion was also limited. There was no ligamentous instability and the anterior drawer sign was negative. The McMurray’s test was also negative. There was no evidence of instability and knee strength was 5/5. See May 2019 Medical Treatment Record – Non-Government Facility. The Veteran had total right knee replacement surgery on May 14, 2018 and a 100 percent rating is in effect from the date of the surgery to July 1, 2019. Since the disability was assigned a total rating during this period, it is not necessary to discuss the evidence from May 14, 2018 to July 1, 2019. The February 2020 VA examination noted that the Veteran never regained normal gait after his knee replacement surgery and used a walker for both his knee and back disabilities. He had chronic knee pain and stiffness. Flare-ups were manifested by swelling and increased pain; he could hardly move his knee. Functional loss/impairment resulted in using a walker and he was only able to take two to three steps without it and with holding onto walls. On examination, the range of right knee flexion was from 10 to 90 and extension was from 90 to 10 degrees. His range of motion precluded a normal stance or gait. The Veteran had pain in flexion and extension that was moderately severe. He could not perform repetitive testing. Pain, weakness, and lack of endurance could significantly limit functional ability with repeated use over time or flare-ups. The estimated range of motion was extension to 20 degrees and flexion to 70 degrees. Contributing factors to the right knee disability were swelling, instability of station, disturbance of locomotion, and interference with standing. Due to knee replacement he could not fully extend or walk without assistance and he had frequent swelling. Muscle strength was 4/5 and peripheral neuropathy and radiculopathy contributed to weakness. There was no ankylosis and stability testing could not be performed due to knee and back pain. There was recurrent effusion that was mostly present. There was no functional impairment such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. See February 2020 C&P Exam. The Board finds the earliest evidence that the Veteran’s right knee disability may be assigned a higher rating is on May 1, 2018. The VA treatment record on that date shows right knee extension was limited to 25 degrees. See May 2019 Medical Treatment Record – Non-Government Facility. Since 25 degrees of extension falls between the criteria for 30 percent and 40 percent ratings, the higher rating of 40 percent will be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5261. Thus, a 40 percent rating is assigned for the right knee disability from May 1, 2018 to May 14, 2018, when the 100 percent rating went into effect. Prior to May 1, 2018, the only range of motion limitation reported in degrees is on the March 2012 VA examination, which showed extension was full and flexion was greater than 90 degrees. Thus, flexion and extension were greater than what is needed to assign a higher rating based on limitation of motion. The Veteran had flare-ups with no identified precipitating factors and no indication of the degree to which it caused limitation of motion. Even considering his flare-ups and reports of weakness, there is insufficient evidence to establish by a preponderance of the evidence that these additional factors produce additional limitation of motion to assign a higher rating. As for the Veteran’s reports of instability, even though there was no evidence of this found on the March 2012 VA examination, he did not report having this symptom until November 2015. The Veteran is competent to report his symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board does not find it to be as probative as the objective evidence of record. There is very little evidence related to the right knee from the time the Veteran reported instability in November 2015 until he had his knee replacement surgery in May 2018; however, just prior to his surgery a May 2018 private treatment record shows there was no instability found. The examination included tests, such as the McMurray and the drawer sign, which are specifically designed to determine instability and the results were negative. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. The Board would expect that if the Veteran had instability in 2015 that at some point it would have been noted or that it at least would have been objectively identified almost three years later by specialized testing. While objective evidence shows the Veteran’s perception of instability was not actually instability, the Board notes that he has also reported giving way, which he attributed to weakness. As weakness and giving way may overlaps with or be interpreted by the Veteran as instability, his lower extremity weakness is already compensated under his service-connected lower extremity peripheral neuropathy. A common disability picture characterized by similar symptomatology do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding under 38 C.F.R. § 4.14. As for a rating in excess of 60 percent beginning July 1, 2019, the Veteran’s knee disability has been assigned the highest schedular rating following completion of the total rating assigned after total knee replacement surgery. Furthermore, the February 2020 VA examiner stated that there was no functional impairment such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. For the reasons stated, a preponderance of the evidence is against higher ratings for the right knee disability, except for the period from May 1, 2018 to May 14, 2018 when the disability at least as likely as not met the criteria for a 40 percent rating. 4. Entitlement to ratings for left lower extremity peripheral neuropathy in excess of 10 percent before December 18, 2019 and in excess of 20 percent starting on this date. 5. Entitlement to ratings for right lower extremity peripheral neuropathy in excess of 10 percent before December 18, 2019 and in excess of 20 percent starting on this date. The Veteran contends that higher evaluations should be assigned for his bilateral lower extremity peripheral neuropathy. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 10 percent evaluation is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis, and a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A higher evaluation of 60 percent is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Under this code, a maximum evaluation of 80 percent is assigned for complete paralysis of the sciatic nerve, which is defined as manifested by foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Neuritis, cranial, or peripheral characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. “Neuritis is defined as inflammation of a nerve, a condition attended by pain and tenderness over the nerves, anesthesia and paresthesias, paralysis, wasting, and disappearance of the reflexes.” Barclay v. Brown, 4 Vet. App. 161, 163 (1993). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. “Neuralgia is acute paroxysmal pain radiating along the course of one or more nerves usu[ally] without demonstrable changes in the nerve structure.” Horowitz v. Brown, 5 Vet. App. 217, 224 (1993). In applying the schedular criteria for rating peripheral nerve disabilities, including Diagnostic Code 8520, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type for complete paralysis given with each nerve, whether due to varied level of the level lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. On March 2012 VA examination, the Veteran reported having intermittent numbness and tingling in his feet. These symptoms occurred every other day and lasted for 15 minutes until he moved them around a bit. Symptoms attributed to his peripheral neuropathy were mild numbness and paresthesias and/or dysesthesias in both lower extremities; strength, deep tendon reflexes, and sensory testing were normal. There was no evidence of atrophy or trophic changes. See March 2012 VA Examination. A February 2014 treatment record shows the Veteran reported two recent incidents of falling in November and December 2013 and he indicated that it felt like his left leg gave way. He denied having any weakness or numbness. The neurological examination revealed deep tendon reflexes were 0 to 1+ throughout, sensation was equal bilaterally and strength was 5/5. See June 2019 and 2020 CAPRI records. Another February 2014 treatment record notes a fall, but the clinician sated there was no evidence of a medical cause. See July 2020 CAPRI records. In November 2015, the Veteran reported having increased numbness and loss of strength in his lower extremities and it affected his ability to walk short distances. He also had difficulty getting in and out of cars, walking upstairs, and getting in and out of the bathtub. See November 2015 Form 9. In December 2015, he denied having weakness or numbness in his body and reported having no falls in the past 12 months. In March 2016, the Veteran’s gait was steady, and he was able to ambulate with the assistance of a cane. See July 2020 CAPRI records. An October 2016 treatment record shows the Veteran denied having muscle weakness or numbness and sensation was normal from L1-L4. In January 2017, the Veteran reported having numbness in his feet. His sensation was normal bilaterally. See May 2019 Medical Treatment Record – Government Facility and July 2020 CAPRI records. In March 2018, he testified that the he loses strength in his legs and had tingling. He also had numbness that went to his feet. See March 2018 Hearing Transcript. A July 2018 treatment record shows the Veteran had full range of motion in his lower extremities and his gait was normal without a limp. In January 2019, he indicated that his legs were weak, and that he was unable to get up after falling. He denied numbness and tingling, but he did have pain that radiated to his legs with ongoing ambulation and that worsened while upright. See June 2019 CAPRI records. Treatment records on February 15, 2019 show he was seen due to increased bilateral leg weakness. He reported that his legs were so weak he could barely lift them off the bed. He ambulated with a walker and reported having a three month history of burning pain in his lower extremities. He had increased falls and weakness in the lower extremities over the past few weeks; he denied any numbness or tingling. On examination, deep tendon reflexes were 1/4 in the lower extremities and strength was 5/5. Plantar flexion and dorsiflexion were intact bilaterally and he could move both great toes. The clinician noted that the Veteran had a very unstable gait even with walker and marked weakness when supporting himself that was not present on his last evaluation. Treatment records in February and March 2019 show he was observed to have difficulty standing from a seating position. Additional records show he was very limited in his mobility. He used a cane but was unsteady. He had diminished sensation in both lower extremities. On examination, the straight leg test was essentially negative in the sitting position and he was unable to stand on tiptoes or heels. In April 2019, he continued to have frequent leg spasms and progressed weakness and he was almost completely wheelchair bound. On examination, strength testing caused spasms in his lower extremities. See June 2019 CAPRI records. On April 2019 VA examination, the Veteran’s current symptoms included an inability to walk, numbness, and no strength in his legs. He was wheelchair bound and unable move without assistance or perform ordinary activities. Activities of daily living required constant help. Symptoms attributed to his bilateral lower extremity peripheral neuropathy were severe intermittent pain; moderate paresthesias and/or dysesthesias, and severe numbness. Muscle strength was 1/5 in the lower extremities, reflexes were absent, and there was decreased sensation in thigh/knee regions and absent lower leg/ankle and feet/toes. The clinician indicated that the severity of the Veteran’s lower extremity peripheral neuropathy was moderate incomplete paralysis in the sciatic, external popliteal (common peroneal), internal saphenous, and obturator nerves. He constantly used a wheelchair and cane and occasionally used a walker due to his peripheral neuropathy. See June 2019 C&P Exam. A July 2019 treatment records notes he was wheelchair bound with pain and weakness in his legs, and he was able to stand for approximately one minute, but he could not walk. He was dependent for most activities of daily living. Strength was 4/5 in most major muscle groups in the legs and sensation was intact to light touch in his legs. Deep tendon reflexes were from 0 to 1/4 in the knees and Achilles. An August 2019 treatment record shows that the Veteran had previously experienced loss of feeling in his legs and became paralyzed. He currently had bilateral lower extremity weakness that was greater on the left the Veteran reported he could stand and take some steps without assistance. He was seated in a wheelchair and was able to move both legs and sets of toes with greater movement on the right. In November 2019, he had greater strength in his legs but was also having problems with muscle spasms and uncontrolled leg jerks that seemed to have improved. On examination, sensation was intact except in his toes, which was decreased, and he had movement in his toes. See January 2020 CAPRI records. A December 2019 VA examination noted his symptoms included constant moderate pain in both lower extremities; and mild paresthesias and/or dysesthesias; and moderate numbness. Muscle strength was 4/5 in the lower extremities; reflexes were normal in the knees but 1+ in ankles; and there was decreased sensation in the lower extremities. He also had smooth skinny lower extremities due to peripheral neuropathy. He used a wheelchair because he was unable to walk for short periods of time. He had moderate incomplete paralysis in the sciatic nerves. There is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. He had difficulty walking or standing for long periods of time due to peripheral neuropathy in the lower extremities bilaterally. See December 2019 C&P Exam. On September 2020 VA examination, the Veteran’s bilateral lower extremity peripheral neuropathy was manifested by severe intermittent pain, and moderate numbness and paresthesias and/or dysesthesias. Strength was 3/5 at the knee level and left ankle, and4/5 in the right ankle. Atrophy was present in first dorsal web space with the left web worse than the right. Reflexes were 1+ bilaterally, indicating hypoactivity. Sensory testing was normal and there were trophic changes in the lower extremity evidenced by smooth, shiny skin. The Veteran had an antalgic gait and used a walker. The VA examiner indicated that the Veteran’s disability affected the sciatic nerves and produced moderate incomplete paralysis. She stated that he had difficulty walking or standing for long periods of time due to his peripheral neuropathy and also indicated his regular use of a brace, cane, and walker, was due to his back disability. See September 2020 C&P Exam. Prior to February 15, 2019, the Veteran’s bilateral lower extremity peripheral neuropathy was manifested by mild incomplete paralysis. The evidence shows he predominantly had a normal gait, infrequent falls, and normal strength, sensation, and deep tendon reflexes. There were some complaints of weakness and bilateral foot numbness and the March 2012 VA examination only noted intermittent tingling and numbness of short duration. Although he reported in May 2018 that he was falling at least once a week due to his right leg giving out, his reported history has been inconsistent since there are also records two months later in July 2018 that show he reported having only one fall in the past 12 months. Furthermore, a January 2019 treatment record shows he denied having any falls in the past 12 months. See June 2019 and July 2020 CAPRI records. Thus, the Board does not find his reports regarding the frequency of his falls to be reliable. For these reasons, moderate incomplete paralysis in either lower extremity is not shown, and a preponderance of the evidence is against a rating greater than 10 percent prior to February 15, 2019. However, beginning February 15, 2019, the record reflects a notable decline in the Veteran’s bilateral lower extremity function manifested by marked weakness and diminished reflexes that made getting up from a seated position and lifting his legs off a table difficult, and resulted in an unsteady gait even with the assistance of a walker. Treatment records shortly thereafter also show he became wheelchair bound for a period of time due to his peripheral neuropathy. Severe incomplete paralysis has not been shown because there has been no evidence of marked muscular atrophy. See June 2019 and December 2019. See C&P Exams. Although the September 2020 VA examination revealed atrophy present of the first dorsal web space with the left web worse than the right web, this is not shown to represent marked atrophy. See September 2020. In the absence of symptoms and findings consistent with severe incomplete paralysis, a preponderance of the evidence is against a rating greater than 40 percent beginning February 15, 2019. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy is remanded. 2. Entitlement to a rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. In addition to service-connected bilateral upper extremity peripheral neuropathy associated with diabetes mellitus, type II, the Veteran has nonservice-connected bilateral carpal tunnel syndrome and a cervical spine disability that has also affected the upper extremities. It is unclear from the record which symptoms are associated with the service-connected disability or even if such a distinction may be made, therefore, these matters must be remanded for an opinion. 3. Entitlement to ratings for a low back disability in excess of 10 percent prior to February 12, 2020 and in excess of 40 percent starting on this date is remanded. The September 2020 VA examination indicates the Veteran had low back surgery in June 2020; therefore, the issue must be remanded to obtain those records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records since July 1, 2020, to include all records associated with the Veteran’s low back surgery in June 2020. If the surgery was performed by a private physician, then give the Veteran the appropriate release to complete that will allow VA to obtain those records. 2. Thereafter, make the Veteran’s claims file available to an appropriate clinician for an opinion regarding the Veteran’s service-connected bilateral upper extremity peripheral neuropathy. Based on a review of the record, the clinician must, to the extent possible, identify which symptoms dating back to May 2010 are associated with the Veteran’s service-connected bilateral upper extremity peripheral neuropathy and are distinguishable from those symptoms associated with his nonservice-connected bilateral carpal tunnel syndrome and cervical spine disorders. The clinician should also identify any symptoms that cannot be distinguished between service-connected and nonservice-connected disabilities. 3. Thereafter, readjudicate the claims for increased ratings for the lumbar spine disability and the bilateral upper extremity neuropathy. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.