Citation Nr: 21065951 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-16 798A DATE: October 28, 2021 ISSUES Entitlement to an evaluation greater than 10 percent prior to May 20, 2021, and in excess of 20 percent thereafter for service-connected lumbar strain, now with degenerative changes. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome. ORDER Entitlement to an evaluation greater than 10 percent prior to May 20, 2021, and in excess of 20 percent thereafter for service-connected lumbar strain, now with degenerative changes is denied. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome is denied. FINDINGS OF FACT 1. For the period prior to May 20, 2021, the Veteran's lumbar strain, now with degenerative changes, is manifested by forward flexion of the thoracolumbar spine more than 60 degrees but not greater than 85 degrees; there was no objective evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations not accounted for in other disabilities. 2. For the period from May 20, 2021, the Veteran's lumbar strain now with degenerative changes is manifested by forward flexion of the thoracolumbar spine more than 30 degrees but not greater than 60 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations not accounted for in other disabilities. 3. The Veteran's right knee patellofemoral syndrome was manifested by pain, painful motion, limitation of flexion at worst to 110 degrees and limitation of extension at worst to zero degrees; there was no objective evidence of ankylosis or dislocated semilunar cartilage with recurrent episodes of locking with effusion into the joint. There were subjective reports of instability of the knee, but no joint instability upon objective testing. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation greater than 10 percent for service-connected lumbar strain, now with degenerative changes prior to May 20, 2021 have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an evaluation greater than 20 percent for service-connected lumbar strain, now with degenerative changes from May 20, 2021 forward have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2001 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran was granted service connection for his lumbar strain disability in September 2013 with a 10 percent rating assigned effective December 18, 2011. The Veteran was also granted service connection for his right knee patellofemoral syndrome in September 2013 with a 10 percent rating assigned effective December 18, 2011. The Veteran testified in a videoconference Board hearing in September 2020 before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. In February 2021 the Board remanded this matter for further development and for the Veteran to be afforded new VA examinations for his lumbar spine and knee disabilities. In May 2021, before returning the matter to the Board, the RO issued a rating decision which increased the Veteran's disability rating for his service-connected lumbar strain to 20 percent, effective May 20, 2021. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's February 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As mentioned above, when a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran reported during the September 2020 Board hearing that he was currently employed, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed. Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to an evaluation greater than 10 percent prior to May 20, 2021, and in excess of 20 percent thereafter for service-connected lumbar strain, now with degenerative changes. Lumbar Spine Disability Legal Standards The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237 for lumbosacral strain. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. According to the General Formula, a 10 percent rating is warranted 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 not greater than 235 degrees, 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating 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 rating 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; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is 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. 38 C.F.R. § 4.71a, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating. The Board will briefly discuss Diagnostic Code 5003 for degenerative arthritis, given that the Veteran has been diagnosed with degenerative changes for his lumbar back. Degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Id. No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal. Lumbar Spine Disability Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected lumbar spine disability. The Veteran's lumbosacral strain, originally claimed as back pain, was granted service connection with a 10 percent rating effective from December 18, 2011, the first day after the Veteran left active service. The Veteran filed a notice of disagreement on August 7, 2015, arguing that his lumbar back disability was more severely disabling than reflected by the 10 percent rating. In a May 2021 rating decision, following a VA examination, the RO granted an increased rating to 20 percent, effective May 20, 2015 forward. In the course of the appeal, the Veteran was granted service connection for right lower extremity radiculopathy related to the service-connected lumbar strain, with a current rating for the right lower extremity of 20 percent. The Veteran has not appealed the rating for his lower extremity radiculopathy, and as such, it will not be discussed further. Turning to the evidence of record, the first VA examination pertinent to the period on appeal occurred in August 2013. The examiner diagnosed a lumbar strain and noted there was no spasm, atrophy, guarding, pain with palpation, or tenderness. The Veteran did not report flare-ups. No neurological symptoms were noted related to the back disability. Range of motion measurements for forward flexion was to 80 degrees, with pain beginning at 70 degrees. Extension was measured to 30 degrees, with no objective evidence of painful motion. Left and right lateral flexion was zero to 30 degrees each and left and right lateral rotation was zero to 30 degrees each. Pain on both active and passive motion was noted. There was no loss of range of motion after 3 repetitions. Contributing factors to functional loss after continued repetitive use included less movement than normal, pain on movement and interference with sitting, standing and weight bearing. Muscle strength and reflex testing was normal. The Veteran was not reported to be using any assistive devices. No IVDS was noted. No imaging studies were completed. The examiner did not note that the Veteran's lumbar spine disability had a functional impact on his ability to work. VA provided an MRI in February 2015 as part of the regular treatment for the Veteran's back, which revealed central disc herniation at L1-L2 with mildly diminished canal diameter, central/right central disc herniation at L4-L5 and disc building at L5-S1. The examiner diagnosed degenerative disc disease. VA provided another examination in May 2016 for the Veteran's lumbar back. The Veteran complained that his back condition had worsened and that he was having more pain with getting out of bed, and with prolonged sitting, standing and walking. A previous diagnosis of lumbosacral strain was continued, along with a new diagnosis of intervertebral disc syndrome. Physical examination revealed objective evidence of localized tenderness over the L1-L5 spine, but did not reveal guarding, or muscle spasm. Range of motion measurements revealed flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees each, and left and right lateral rotation to 30 degrees each. Pain was noted on movement and caused functional loss. There was no pain on weight bearing. There was no evidence of additional loss of range of motion after three repetitions. The Veteran reported that after repeated use over time he would experience functional loss of pain and fatigue. Functional loss during flare ups included pain. Muscle strength was five on a scale of five. No muscle atrophy or ankylosis was noted. Reflex testing was normal. No neurological symptoms were noted related to the back disability beyond right side lower radiculopathy, which is now separately rated. Although IVDS was noted, the Veteran did not have any episodes that required bed rest prescribed by a physician in the past 12 months. The Veteran was not noted to be using any assistive devices. X-rays as part of this examination did not indicate arthritis. The examiner noted that the Veteran reported that he had to quit his job installing tv satellites on homes because he was not able to climb ladders and squat and so it made those types of jobs difficult. The Veteran testified during the September 2020 Board hearing that his lumbar strain disability had worsened since his May 2016 VA examination. He testified that he experienced muscle spasms in his back daily. He also testified that he was seeing a private neurosurgeon who had provided steroid injections for his back and had discussed the possibility that the Veteran may need surgery for his lumbar back disability. VA provided another examination for the Veteran's lumbar back in May 2021. The examiner noted a diagnosis of degenerative disc disease other than IVDS as well as lumbar strain, now with degenerative changes. The Veteran complained of worsening back pain since the last compensation and pension examination and that he had on and off pain in the lower back with prolonged standing, walking and sitting. He reported that the back pain occasionally traveled to his right leg and he experienced occasional numbness and tingling in the right foot. No flareups were noted. The Veteran reported that he received epidural shots for his back disability, but did not report any other treatments, medications or surgeries. Range of motion in flexion was to 45 degrees, in extension to 15 degrees each, left and right lateral flexion to 20 degrees each, and left and right lateral rotation to 25 degrees each. Pain was noted on examination and caused functional loss. There was no objective evidence of crepitus, localized tenderness or pain on palpation. Range of motion was measured after three repetitions and no change in measurements were found. The examiner estimated that after repeated use over time as well as during flare ups range of motion in flexion would be 35 degrees, in extension to 10 degrees each, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees each. No guarding or muscle spasm was noted. Disturbance of locomotion was noted, along with interference with sitting and interference with standing. The Veteran reported pain with prolonged sitting, standing and walking. Muscle strength was 5 on a scale of 5. No muscle atrophy was noted No ankylosis and no other neurological abnormalities were noted beyond the already service-connected right lower extremity radiculopathy. No IVDS was noted. The Veteran did not require the use of any assistive devices. For the period prior to May 20, 2021 For the period prior to May 20, 2021, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 10 percent disability level. An evaluation of 10 percent may be granted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. The Board notes an evaluation of 10 percent for this period, but no higher, is based upon the lowest forward flexion of 70 degrees during this period, at the May 2016 VA examination. A higher rating of 20 percent is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees. Nor does the evidence show that the Veteran suffers from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, there has been no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Therefore, a higher, 20 percent disability rating for the relevant period is not warranted. While IVDS was noted during this period on the May 2016 VA examination, there were no incapacitating episodes or periods of bed rest prescribed by a physician due to IVDS. For the period from May 20, 2021 forward For the period from May 20, 2021 forward, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 20 percent disability level. An evaluation of 20 percent may be granted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis The Board notes an evaluation of 20 percent for this period, but no higher, is based on the lowest forward flexion of 45 degrees during this period, at the May 2021 VA examination. A higher rating of 40 percent is not warranted because such symptomatology has not been shown for the relevant time period that demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less. Nor does the evidence show that the Veteran suffers from favorable ankylosis of the entire thoracolumbar spine. In fact, ankylosis has never been diagnosed in this Veteran since service connection in 2011. Conclusion When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, the Board notes it has considered the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's statements of flare-ups were recorded as well as their impact on the Veteran's functional impact of the lumbar back disability. The Board has also noted the possibility of additional diagnostic codes, to include Diagnostic Code 5242 for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, which now also includes a reference to Diagnostic Code 5003. However, the Board here refers to Note (1) under Diagnostic Code 5003, where potential 10 percent or 20 percent ratings will not be combined with ratings based on limitation of motion. Here, the Veteran's lumbar back disability is rated both 10 percent and 20 percent under Diagnostic Code 5237 based on limitation of motion, and an alternative diagnostic code based on degenerative arthritis does not benefit the Veteran. In reaching the above conclusion, the Board has not overlooked the Veteran's statements and testimony with regard to the severity of his service-connected back disability. In this regard, the Veteran was competent to report on factual matters of which he had firsthand knowledge, e.g., muscle spasms and limited ability to engage in prolonged activity such as sitting, standing and walking. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, his Board hearing testimony, treatment records and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has afforded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for the thoracolumbar back prior to May 20, 2021, and in excess of 20 percent from May 20, 2021 thereafter. See 38C.F.R. §4.71(a), Diagnostic Code 5243; see also 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board concludes that the preponderance of the evidence is against the claim for an increased disability rating for the Veteran's service-connected lumbar strain disability, the benefit of the doubt doctrine is not for application, and an increased rating is not warranted. 38U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lumbar back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome. Knee Disabilities: Legal Standards The Veteran right knee patellofemoral syndrome is currently rated under Diagnostic Code 5260, for limitation of flexion of the right knee. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2004) (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). The rationale is that limitation of flexion and limitation of extension are two distinct impediments, i.e., the symptomatology upon which the separate ratings would be based is not duplicative or overlapping. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability. VAOPGCPREC 23-97 (July 1, 1997). VA's Office of the General Counsel (OGC) opined that it was not pyramiding to assign ratings under DC 5257 (knee instability) and DC 5260/61 based on additional disability. The opinion explained that DC 5257 addressed instability of the knee without reference to limitation of motion, and DC 5060/61 referenced limitation of motion without instability. Id. at para. 2. In other words, the two diagnostic codes addressed different manifestations or symptoms. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). However, based on the medical evidence before the Board, ankylosis, impairment of the tibia and fibula, and genu recurvatum have not been found or associated with the Veteran's knee disabilities and thus will not be considered here. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5257, other impairment of the knee, has been substantially modified and will be noted below. Also pertinent to this appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Id. No other changes pertinent to this claim are applicable for this particular appeal. Absent any Congressional intent or directive with regard to new or revised regulations, when a claim originates prior to the effective date of the new language but is decided after the effective date, VA will use the version that provides the Veteran a greater benefit. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Diagnostic Code 5257 (pre-February 7, 2021) provides ratings for recurrent subluxation and/or lateral instability of the knee. A 10 percent rating is assigned for slight recurrent subluxation and/or instability of the knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (prior to Feb. 7, 2021). The new language of Diagnostic Code 5257 that took effect on February 7, 2021 now reads for recurrent subluxation or lateral instability, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. In addition for Diagnostic Code 5257, a new section on patellar instability has been added that also took effect on February 7, 2021. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Two new notes for the new Diagnostic Code 5257 are as follows. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The remainder of the pertinent diagnostic codes are unchanged and are as follows. Under Diagnostic Code 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees, a 40 percent rating will be assigned for limitation of extension to 30 degrees, and a 50 percent rating will be assigned for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. For Diagnostic Code 5003, degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, 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. In the absence of limitation of motion, rate as follows: a 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent is assigned for X-ray evidence that shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a. The terms "slight," "marked," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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. Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected right knee patellofemoral syndrome. The Veteran currently has an evaluation of 10 percent rating assigned from December 18, 2011, the day after separation from active- duty service. The Veteran has asserted that a higher evaluation is warranted because his right knee disability is more severely disabling than contemplated by the current rating. The Veteran's first examination pertinent to the increased rating claim occurred in August 2013. Here the examiner diagnosed right knee patellofemoral syndrome. The Veteran did not report flare-ups. Right knee flexion was measured out to 130 degrees with objective evidence of pain at 90 degrees. Extension was measured to zero degrees with objective evidence of pain. The examiner noted functional loss to include less movement than normal and pain on movement. There was no change in right knee range of motion measurements after three repetitions. Patellar crepitation with motion of the right knee was noted. There was no tenderness or pain to palpation for joint line or soft tissues of the right knee. Right knee muscle strength was five on a scale of five and there was no muscle atrophy reported. Joint stability testing was accomplished and was normal. There was no history of recurrent patellar dislocation, shin splints, stress fractures, compartment syndrome, or any other tibial and/or fibular impairment. The Veteran was not using any assistive devices. The Veteran received another VA knee examination in May 2016. Right knee strain as well as right knee joint osteoarthritis was diagnosed. The Veteran reported that his disability had worsened and that his right knee occasionally locked and seemed like it would give way. No flareups were noted, and the functional impact of the right knee disability was cited as limiting the Veteran's ability to bend due to pain. Right knee flexion was measured out to 110 degrees and extension for each knee to zero degrees. There was no evidence of pain on weight bearing but pain noted on the examination caused functional loss. The examiner reported tenderness to palpation on the medial joint line of the right knee. There was no change in range of motion measurements after three repetitions. There was no crepitus or ankylosis in the right knee. Muscle strength was five on a scale of five and there was no muscle atrophy reported. Joint stability testing was accomplished and was normal. There was no history of recurrent patellar dislocation, shin splints, stress fractures, compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted no history of any meniscal condition. The Veteran was not recorded as using any assistive devices. A right knee MRI showed mild osteoarthritis of the knee with mild patellar tendinosis. The Veteran testified at the September 2020 Board hearing that he believed that the range of motion in his right knee was more limited than at the time of the May 2016 examination. He also testified that his knee had begun to lock and that he had to wear a brace. The Veteran received another VA knee examination in May 2021. The examiner diagnosed patellofemoral syndrome of the right knee, and no other condition. The Veteran reported that his condition had worsened and that he was experiencing on and off pain in the right knee. He reported that he was not taking medications, receiving any treatment or had any surgeries. No flare-ups were reported. Functional impairment was described as impacting prolonged standing, walking and sitting. The Veteran did not report a history of instability or frequent effusion of the right knee. Right knee flexion was measured out to 130 degrees and extension to zero degrees. Objective evidence of localized tenderness or pain on palpation of the patella of the right knee was noted and described as moderate. There was no change in range of motion measurements of the right knee after three repetitions. With repeated use over time, the examiner estimated decreased range of motion of the right knee on flexion and extension of 130 degrees to zero. Disturbance of locomotion was noted, along with interference with sitting and interference with standing. No muscle atrophy or ankylosis of the right knee was noted. There was no history of recurrent subluxation or lateral instability of the right knee. The Veteran was not prescribed and was not currently using any assistive devices related to his right knee disability. The examiner noted no history of any meniscal condition. In consideration of the above, for the Veteran's right knee patellofemoral syndrome under Diagnostic Code 5260, during the entire period on appeal, the Board finds that the Veteran's symptoms most closely approximate the 10 percent rating. While the flexion measurements in this period would not warrant a compensable rating for the right knee, a rating of 10 percent is appropriate here due to painful motion of the right knee, where the minimum compensable evaluation is 10 percent because 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, which for the right knee, is 10 percent. 38 C.F.R. § 4.59; see Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); Petitti v. McDonald, 27 Vet. App. 415 (2015). A higher evaluation of 20 percent under Diagnostic Code 5260 is not warranted because such symptomatology has not been shown during the period on appeal that demonstrates limitation of flexion of 16-30 degrees. This has never been shown at any point during the period on appeal. The Board notes that the Veteran has reported symptoms of instability of the knees, which warrants consideration of Diagnostic Code 5257. See 38 C.F.R. § 4.71a. However, none of the VA examinations found clinical evidence of instability. The Board must weigh the evidentiary value to assign to his allegations of instability to decide whether a separate rating is warranted. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of knee instability the Veteran has experienced during the appellate period. See English v. Wilkie, 17-2083 (2018). While the Veteran is competent to report subjective feelings of instability, the Board finds in this case, his statements describing knee instability are contradicted by the evidence, discussed above, and are therefore not credible. This is not an instance where the Board is negating the probative value of the Veteran's lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record is inconsistent with and contradict the allegations of the presence of knee instability. The Veteran has reported that over the period on appeal that he has experienced symptoms of right knee instability. Specifically, at the September 2020 Board hearing he testified that he had to wear a knee brace. However, he did not report wearing a brace at any of his VA examinations, particularly at the subsequent May 2021 examination. Additionally, the VA examination reports not only expressly note testing for lateral instability was normal, but also testing for all other types of instability. While the Veteran may be competent to report subjective feelings of instability in his right knee, he does not have the medical competence to diagnose lateral instability, which is demonstrated by specific testing. Therefore, in this case, his lay statements are outweighed by the very clear medical findings, and a separate rating is not warranted. The Board has considered other diagnostic codes for the Veteran's right knee disability, to include ankylosis (Diagnostic Code 5256), disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258), removal of the semilunar cartilage (Diagnostic Code 5259), extension (Diagnostic Code 5261), malunion/nonunion of the tibia and fibula (Diagnostic Code 5262), and genu recurvatum (Diagnostic Code 5263), and found them to not apply to the Veteran's right knee disability picture in this period. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, 5263. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for the entire period on appeal for the Veteran's right knee patellofemoral syndrome. See 38C.F.R. §4.71(a), Diagnostic Code 5243; see also 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board concludes that the preponderance of the evidence is against the claim for an increased disability rating for the Veteran's service-connected patellofemoral syndrome, the benefit of the doubt doctrine is not for application, and an increased rating is not warranted. 38U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's right knee disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted as the Veteran has had a stable level of symptomatology throughout the appeal period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.