Citation Nr: 21069224 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-17 264 DATE: November 17, 2021 ORDER From February 2, 2010 to February 17, 2010, entitlement to a temporary total disability rating due to convalescence is granted. From September 19, 2008 to February 2, 2010, entitlement to a 20 percent rating, but no higher, for a meniscal injury with pain is granted. From August 27, 2015, entitlement to a rating in excess of 20 percent for a meniscal injury with pain is denied. From September 19, 2008 to February 2, 2010, entitlement to a 10 percent rating, but no higher, for right knee instability is granted. From August 27, 2015, entitlement to a 30 percent rating, but no higher, for right knee instability is granted. From August 27, 2015, entitlement to a 30 percent rating, but no higher, for right knee limitation of motion in flexion is granted. Prior to August 27, 2015, a rating in excess of 20 percent for a low back disability is denied. From August 27, 2015 to January 5, 2018, a rating in excess of 40 percent for a low back disability is denied. From January 5, 2018, a rating of 40 percent, but no higher, for a low back disability is granted. Prior to January 5, 2018, a rating in excess of 20 percent for right leg sciatica is denied. From January 5,2018, a 20 percent rating, but no higher, for right leg sciatica is granted. From August 27, 2015, a rating in excess of 10 percent for left leg sciatica is denied. Prior to August 27, 2015, entitlement to a total disability rating due to individual unemployability is rendered moot. FINDINGS OF FACT 1. The Veteran underwent right knee arthroscopic surgery on February 2, 2018; he used crutches after surgery; and a VA examination to provide evidence necessary for a schedular rating was provided on August 27, 2015. 2. From September 19, 2008 to February 2, 2010, and from August 27, 2015, the Veteran's right knee disability was manifested by a meniscal tear with pain. 3. From September 19, 2008 to February 2, 2010, the Veteran's right knee disability was manifested by no more than slight instability. 4. From August 27, 2015, the Veteran's right knee disability was manifested by severe instability. 5. From August 27, 2015, the Veteran's right knee disability was manifested by limitation of flexion to 20 degrees. 6. Prior to August 27, 2015, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there is no evidence of ankylosis; and there is no evidence of incapacitating episodes with physician prescribed bedrest. 7. From August 27, 2015, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; there was no evidence of ankylosis; and there was no evidence of incapacitating episodes with physician prescribed bedrest. 8. Over the entire appeal period, the Veteran experienced moderate incomplete paralysis of the right sciatic nerve, but moderately severe incomplete paralysis was not shown. 9. From August 27, 2015, the Veteran experienced mild incomplete paralysis of the left sciatic nerve, but moderate incomplete paralysis was not shown 10. Prior to August 27, 2015, the issue of entitlement to a TDIU is rendered moot by the 100 percent rating provided for the Veteran's service-connected knee disability. CONCLUSIONS OF LAW 1. Entitlement to a total disability rating for convalescence is warranted from February 2, 2010 to August 26, 2015. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.1, 4.2, 4.3, 4.30. 2. From September 19, 2008 to February 2, 2010, and from August 27, 2015, the criteria for a rating of 20 percent, but no higher, for a right knee meniscal tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, DC 5258. 3. From September 19, 2008 to February 2, 2010, the criteria for a rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, DC 5257. 4. From August 27, 2015, the criteria for a rating of 30 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, DC 5257. 5. From August 27, 2015, the criteria for a rating of 30 percent, but no higher, for right knee limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, DC 5260 6. Prior to August 27, 2015, the criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5237. 7. From August 27, 2015, the criteria for a rating of 40 percent, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a DC 5010-5237 8. Over the entire appeal period, the criteria for a rating of 20 percent, but no higher, for right lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 9. From August 27, 2015, the criteria for a rating in excess of 10 percent for left lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 10. Prior to August 27, 2015, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from February 1975 to March1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009, September 2015, January 2018, February 2020, and December 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2013.. This case was previously before the Board in April 2015, August 2017, June 2018, and August 2020 when it was remanded for development. There has been substantial compliance with the Board's August 2020 remand directives (to obtain private chiropractic records and to provide an additional right knee examination.) The case is now returned to the Board for further appellate review. The December 2020 rating decision allowed service connection for a headache disability. This represents a complete grant of the benefit sought as to that issue. Entitlement to service connection for a headache disability is no longer before the Board. The December 2020 rating decision also allowed entitlement to a TDIU from August 27, 2015. The issue of entitlement to a TDIU prior to this date remains on appeal and is discussed below. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). In both situations, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.") Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an increased rating for residual of a right knee disability, currently rated as 20 percent disabling under DC 5258 over the appeal period, excluding a temporary total disability rating from February 18, 2010 to August 26, 2015 2. Entitlement to an increased rating for residuals of a right knee disability, currently rated, under DC 5257, as 100 percent disabling from February 18, 2010 to August 26, 2015, and as 30 percent disabling thereafter 3. Entitlement to an increased rating for right knee limitation of flexion, under DC 5260, currently rated as 20 percent disabling from August 27, 2015 Diagnostic Codes for Knee Disabilities Normal range of motion (ROM) of the knee is to zero (0) degrees (full extension ROM) to 140 degrees (full flexion ROM). 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable (0 percent) rating is warranted where flexion of the knee is limited to 60 degrees, and a 10 percent disability evaluation is warranted when flexion is limited to 45 degrees. A 20 percent disability rating is warranted when flexion is limited to 30 degrees, and a 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable (0 percent) rating is warranted when extension of the knee is limited to 5 degrees, and a 10 percent disability rating is warranted when extension of the knee is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees, and a 30 percent rating is warranted when extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees, and a 50 percent disability rating is warranted when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Disability ratings under DC 5256 may be warranted where there is ankylosis of the knee. 38 C.F.R. § 4.71a, DC 5256. Under DC 5257 a disability rating may be assigned for subluxation or lateral instability of the knee. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under DC 5257, and objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under DC 5258, dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5259. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, DC 5262. Under DC 5263, a 10 percent rating is warranted for genu recurvatum. 38 C.F.R. § 4.71a, DC 5263. Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg.63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims (Court) held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259), and instability (DC 5257). During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). Diagnostic Code 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 10 percent rating is warranted 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 warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing 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 prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The amended Diagnostic Code 5257 also provides for ratings based on patellar instability. A 10 percent rating is warranted 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 warranted 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 warranted 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. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that 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. Claims pending prior to the effective date of the new rating criteria will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. Accordingly, the Board will consider the claim under both versions of the rating criteria, to extent there is any substantive difference between them. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Total Disability Rating Based on the Need for Convalescence Pursuant to 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted. The award will be effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following the hospital discharge or outpatient release. In order to attain the temporary total evaluation, the Veteran must demonstrate that his service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, the application of a body cast, a necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. 38 C.F.R. § 4.30. "Surgery necessitating at least one month of convalescence," in the context of the regulation, means surgery "that would require at least one month for the veteran to return to a healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998). Appeal Period and Current Ratings On September 19, 2008 the Veteran filed a claim seeking an increased rating for his service-connected right knee disability. VA treatment records include a May 2007 physical therapy consult which documents bilateral knee pain and continuing right knee treatment more than one year prior to the date the claim was filed. As the evidence shows the Veteran's right knee symptoms increased more than one year prior to the date the claim was filed, the Board will consider whether any increase is warranted for the right knee disability from September 19, 2008. 38 C.F.R. § 3.400(o). The Veteran's right knee disability is currently rated under several diagnostic codes over the appeal period. Currently, a 100 percent rating under 5257, for convalescence following surgery, is applied from February 18, 2010 through August 26, 2015. Prior to February 18, 2010 and from August 27, 2015, a 20 percent rating under DC 5258 is applied. From August 27, 2015, a 20 percent rating, under DC 5260, and a 30 percent rating, under DC 5257, are applied. Review of Evidence In January 2009,, a VA knee examination was provided to evaluate the claim. The Veteran reported pain and right knee swelling. In the months before the examination, he received a cortisone injection, participated in physical therapy treatment, and used a knee brace and cane. At the time of the examination, he was no longer using the cane. The examiner noted right knee stiffness with sitting, instability with stepping off a curb, locking, lack of endurance, limitations on standing and walking, and pain interfering with sleep. Pain increased with walking, jogging, jumping, bending, and climbing stairs. Pain improved with rest and pain medications. The Veteran was employed as a salesperson. His knee condition did not prevent him from working. He walked with a limp. The Veteran had full right knee range of motion, from zero degrees to 140 degrees, after three repetitions. The examiner noted painful motion with evidence of weakness and decreased strength. January 2009 X-rays revealed unusually mild degenerative changes. The examiner observed lateral joint line pain was consistent with a lateral meniscus tear. In February 2009, a VA orthopedist noted the Veteran reported difficulty with stairs and squatting and stiffness after sitting. He observed no effusion, intact ligament stability, and full range of motion. In November 2009, a VA orthopedist observed essentially full range of motion, but the Veteran was "uncomfortable" with full flexion. He noted the Veteran was employed as a salesman and his job required walking and driving. A November 2009 MRI revealed a tear of the posterior horn of the medial meniscus. A December 2009 VA orthopedic surgery evaluation noted range of motion from three degrees to 130 degrees. The orthopedist stated some right leg symptoms, including pain radiating from the buttocks and right foot numbness could be related to a back condition. VA treatment records show the Veteran underwent right knee arthroscopic surgery, including a partial medial meniscectomy on February 2, 2010. Two weeks after surgery, his VA orthopedic surgeon observed the Veteran continued to experience residual lateral knee pain and knee stiffness. The Veteran was directed to wean himself off crutches and to use a cane as needed. In March 2010, post-surgery knee aspiration was performed due to effusion. In April 2010, the Veteran's pain had not improved following surgery. In June 2010, a VA orthopedist observed the Veteran continued to experience post-surgical knee pain, but the right knee felt "stable and well balanced." January 2011 and June 2011 orthopedic surgery notes document the Veteran's right knee symptoms continued after surgery without much improvement. July 2012 and October 2012 VA pain medicine notes document continuing right knee pain. A November 2013 VA mental health note includes the Veteran's report of falling and his continued use of a cane. In December 2013, the Veteran testified that his knee locked up when he walked on hills. This had resulted in four falls. July 2014 VA emergency room records document the Veteran fell after his right leg gave way. A March 2015 VA orthopedic surgery note confirmed post-surgical knee pain, looseness and popping. The orthopedist observed reduced range of motion from zero to 85 degrees. VA records from July 2015 include reports of two falls after the Veteran's right knee gave way. A VA knee conditions examination was provided on August 27, 2015. The examiner diagnosed right knee injury residuals. The Veteran reported daily flare ups with difficulty standing, walking, using stairs, squatting, kneeling, and lifting. He also reported right side numbness. On initial testing, full range of motion (to zero) was observed in extension. Flexion was limited to 20 degrees. Pain was observed with weight bearing. Range of motion and functional ability were not reduced after three repetitive motions. During flares, the examiner estimated range of motion would continue from zero to 20 degrees, but functional ability would be additionally impaired by pain, weakness, and lack of endurance. No estimate was provided for limitations following use over time. Muscle strength was reduced (4/5) in flexion and extension. No ankylosis was observed. The examiner noted slight recurrent subluxation, severe lateral instability, and no history of recurrent effusion. Joint stability tests were not performed due to pain and guarding. The examiner noted the February 2010 medial meniscectomy. He stated a May 2015 right knee MRI revealed a possible undersurface tear of the medial meniscus. The Veteran constantly used a cane due to right knee, back and hip conditions. VA treatment records from March 2016 include the Veteran's report that his right knee buckled. A July 2016 VA orthopedic surgery note documented recurrent knee pain, range of motion from zero to 90 degrees, MRI evidence of a degenerative medial meniscus tear, and additional pain related to spinal disease. The Veteran received a right knee therapeutic injection. In September 2016, the Veteran's VA primary care physician observed continuing knee symptoms following the February 2010 arthroscopic surgery. In December 2017, the Veteran reported continuing right knee pain and requested a referral to the orthopedic clinic. In January 2018, a VA orthopedist noted continuing persistent knee pain, looseness, and popping. The Veteran's gait was antalgic. The Veteran had used a cane for the past five years. Range of motion was observed, with pain, from zero to 90 degrees. A third VA knee conditions examination was provided in January 2018. The examiner noted the Veteran walked with a limp and reported flares with prolonged standing and sitting. During flares he had difficulty standing, walking, using stairs, squatting, kneeling, and lifting. Initial range of motion testing showed movement from zero degrees to 75 degrees. Pain was observed with flexion and with extension. Strength was reduced to 4/5 in flexion and in extension. The examiner noted recurrent subluxation, lateral instability, and joint stability testing showed instability. There was no ankylosis. The Veteran used a cane for his right knee and low back conditions. Due to his right knee disability, he was limited to performing light physical and sedentary tasks. A fourth VA knee conditions examination was provided in May 2019.. The Veteran reported he was unable to kneel or squat and he could not walk or stand for long periods. Range of motion was observed from zero degrees to 80 degrees. Right knee pain was present at rest. With repeated use over time, the examiner estimated flexion would be further limited to 60 degrees, but extension would remain full (to zero degrees.) The examiner noted painful and limited range of motion contributed to the disability. Reduced (4/5) muscle strength in flexion and in extension was noted. Ankylosis was not observed. The examiner found no recurrent subluxation, no history of lateral instability and she reported joint stability tests yielded normal results. Prior meniscal surgery was noted. The Veteran used a cane constantly due to his right knee, left foot, and back conditions. A fifth VA knee conditions examination was provided in July 2019. The examiner noted current symptoms of right knee discomfort with going up or down the stairs. The Veteran did not report flares ups. Flexion was limited to 70 degrees and extension was not limited. Range of motion was unchanged after three repetitive motions. The examiner estimated it would remain unchanged following repeated use over time. Full muscle strength and no ankylosis were observed. The examiner found no history of recurrent subluxation or lateral instability. Joint stability testing did not indicate any joint instability. Prior meniscal surgery was noted. The examiner stated the Veteran did not use any assistive devices. He stated the right knee disability would not impact the Veteran's ability to perform occupational and employment activities. As noted in the Board's August 2020 remand, the symptomatology described in the July 2019 examination report was inconsistent with other VA examinations and with VA treatment records. In October 2019, the Veteran was admitted to a VA hospital and reported that he had fallen at home due to his weak knees giving out and his back condition. A December 2019 VA primary care note documents persistent knee pain, looseness, and popping. The Veteran was referred to orthopedics to determine whether an additional therapeutic injection was warranted. A January 2020 orthopedic surgery note records the Veteran's report of increased right knee pain. The pain was worse with activity, prolonged sitting, and using stairs. There was no locking or giving way noted. The Veteran was issued a knee brace and topical medications. He was advised to perform low impact activities. In June 2020, a VA primary care phone note indicates the Veteran's knee condition remained stable. A sixth VA knee conditions examination was provided in November 2020. The Veteran reported right knee pain. He walked with a cane for balance. He experienced flare ups after prolonged walking or standing for longer than 10 minutes. During flares, the Veteran was unable to stand for more than 15 minutes. Range of motion in flexion was limited to 50 degrees. Extension was not limited. Pain was observed in flexion and in extension. The Veteran was examined immediately after repetitive use, but there was no additional loss of range of motion or additional limitation of functional ability. During flare ups, the examiner estimated flexion would be further reduced to 40 degrees. Full muscle strength was observed. No ankylosis was noted. The examiner found no history of recurrent subluxation or lateral instability. Join stability tests did not indicate any joint instability. Prior meniscal surgery was noted. The examiner observed the Veteran constantly used a knee brace and a cane. The Veteran's ability to perform occupational tasks was limited because the Veteran was unable to stand for more than 15 minutes due to pain in his knees. Total Disability Rating for Convalescence Currently, a total disability rating for convalescence is applied from February 18, 2010 to August 26, 2015. Medical records associated with the claims file show the Veteran underwent right knee arthroscopic surgery on February 2, 2010. Following the surgery, he used crutches. Thereafter, medical evidence documents continuing right knee symptoms. A VA knee conditions examination, to obtain adequate evidence to provide a schedular rating, was conducted on August 27, 2015. Accordingly, a total disability rating for convalescence is warranted from February 2, 2010 until August 26, 2015. 38 C.F.R. § 4.30. This is the maximum permissible schedular rating of 100 percent and, consequently, no higher right knee rating is possible as a matter of law during this period. Thus, the remaining questions as to the Veteran's right knee is whether a higher rating is warranted prior to February 2, 2010 or from August 27, 2015. Meniscal Conditions A November 2009 MRI confirmed a medial meniscus tear. Although the February 2010 arthroscopic surgery included a partial meniscectomy, a May 2015 MRI indicated an undersurface medial meniscus tear was present. Prior to the February 2010 arthroscopic surgery, and after the August 17, 2015 VA knee conditions examination, the Veteran consistently reported right knee pain. In January 2009 he reported locking symptoms. However, there is no evidence of frequent locking prior to the February 2010 surgery. Accordingly, a meniscal injury with frequent episodes of pain and some locking is documented. A 20 percent rating under DC 5258 is warranted from September 19, 2008 to February 2, 2010 and from August 27, 2015. This is the highest rating available for a meniscal injury. See 38 C.F.R. § 4.71a, DC 5258. Instability Prior to the February 2010 right knee arthroscopic surgery, the Veteran used a knee brace and reported right knee instability when stepping off a curb. There is no indication the Veteran fell or lost his balance due to knee instability over this time period. A slight instability is demonstrated. As the record does not document falls or the use of additional assistive devices (cane, crutches, walker), other than a knee brace, a moderate or severe instability is not shown. A 10 percent rating, but no higher is warranted from September 19, 2008 to February 2, 2010. 38 C.F.R. § 4.71a, DC 5257. The August 27, 2015 VA knee conditions examination confirmed joint instability through joint stability testing. After the August 2015 examination, the Veteran reported falls when his right knee gave way. In January 2018, a VA examiner also found right knee instability on joint stability testing. VA examiners of May 2019, July 2019, and November 2020 did not document any right knee instability. However, VA treatment records and examination reports confirm the Veteran's continued use of a knee brace and a cane. VA treatment records from March 2016 and October 2019 show the Veteran's right knee disability was associated with buckling and falls. Resolving reasonable doubt in favor of the Veteran, from August 27, 2015, severe level of right knee instability is shown. A 30 percent rating, under DC 5257, is warranted from this date. No higher rating for joint instability is available. Id. A rating in excess of 30 percent is not provided under the amended criteria for DC 5257. Consideration of a rating under these amended criteria, after February 7, 2021, is not indicated. See Kuzma, supra. Limitation of Motion Prior to the February 2010 right knee arthroscopic surgery, right knee flexion was not limited to 60 degrees or less and extension was not limited to 5 degrees of less. A rating under DC 5260 (limitation of flexion) or DC 5261 (limitation of extension) is not indicated. X-rays confirmed the presence of arthritis and VA medical personnel noted painful motion. However, the Board has attributed right knee pain to a meniscal condition. An additional rating based on arthritis and painful motion is not permitted as this would violate the rule against pyramiding. See 38 C.F.R. § 4.14, 4.71a, DC 5260, DC 5261. Providing a 20 percent due to a meniscal condition is more favorable to the Veteran. On August 27, 2015, a VA examiner observed flexion was limited to 20 degrees. VA examinations of January 2018 (to 75 degrees), May 2019 (to 60 degrees after repetitive use), July 2019 (to 70 degrees), and November 2020 (to 50 degrees) indicted the Veteran's range of motion in flexion had improved. However, there is variation in the range of motion reported, the examiners did not fully evaluate the Veteran's limitations during flares and with use over time, and it is not clear that any improvement after August 27, 2015 was permanent. Resolving reasonable doubt in favor of the Veteran, a rating of 30 percent, under DC 5260 is warranted from August 27, 2015. No higher rating is available under DC 5260. 38 C.F.R. § 4.71a, DC 5260. Over the entire appeal period, there is no evidence of limitation of extension to 5 degrees or more. A rating under DC 5261 is not indicated at any time. There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Ratings under DC 5256, DC 5262, or DC 5263 are not indicated. 38 C.F.R. § 4.71a, DC 5261, DC 5256, DC 5262, DC 5263. 4. Entitlement to an initial evaluation in excess of 20 percent prior to August 27, 2015, in excess of 40 percent from August 27, 2015 to January 5, 2018, and in excess of 20 percent thereafter for a low back disability 5. Entitlement to an initial evaluation in excess of 20 percent prior to January 5, 2018, and in excess of 10 percent thereafter, for sciatica manifesting in the right leg 6. Entitlement to an initial evaluation in excess of 10 percent for sciatica manifesting in the left leg from August 27, 2015 The Veteran's lumbar spine disability, identified as low back strain with degenerative arthritis of the spine is currently rated under 38 C.F.R. § 4.71a, DC 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The diagnostic code applied here indicates the Veteran's low back arthritis is rated under the criteria for lumbosacral strain. Lumbosacral strain is rated on the basis of limitation of motion using the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Veteran's right and left lower extremity radiculopathy disabilities are evaluated under DC 8520, which relates to paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is reserved for complete paralysis. Diagnostic Code 5243 provides that IVDS (intervertebral disc syndrome) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, 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. Id. at Note 1. The Veteran filed a claim seeking entitlement to service connection for a spine disability in January 2010. In May 2010 a VA physical medicine rehabilitation note documented forward flexion to 50 degrees with pain. A limited nerve conduction study right sural and peroneal nerves showed normal results. A March 2010 lumbar spine MRI did not reveal any spinal abnormalities. A VA back examination was provided in June 2011. The examiner diagnosed low back strain. The Veteran reported lower back pain with numbness and tingling in his right leg. He did not experience incapacitating episodes. His back pain flared with prolonged sitting, standing, or walking. The Veteran was employed as an estimator for a solar and roofing company. The examiner observed forward flexion to 75 degrees, extension to 15 degrees, bilateral lateral bending to 15 degrees, and bilateral rotation to 15 degrees. Range of motion was unchanged after three repetitive motions. An August 2011 VA pain medicine note documents limited spine mobility in flexion and extension due to pain. A June 2012 VA pain medicine note reports right thigh pain and numbness (more numbness than pain) over many years. Recent left thigh pain was attributed to meralgia paresthetica rather than radiculopathy (as noted in the Board's August 2020 decision which denied entitlement to an effective date earlier than August 27, 2015 for left leg radiculopathy.) A June 2012 physical medicine rehab procedure note describes an incomplete motor nerve conduction study of the right peroneal and tibial nerves. Right lower extremity radiculopathy was not ruled out. A June 2012 lumbar spine MRI diagnosed very mild asymmetric facet arthropathy. A June 2012 hip and pelvis x-rays documented mild degenerative changes of the right L4-L5 facet joint. A November 2012 VA pain medicine note indicates spine flexion was limited to less than 45degrees and extension was limited to less than 10 degrees. Right and left lower extremities showed full strength and normal sensitivity to light touch. An August 2013 VA pain medicine note shows right lower extremity strength was reduced to 4/5. Lumbar spine mobility was limited by severe back pain. A June 2014 lumbar spine MRI revealed a mild disc bulge and minimal foraminal narrowing at L3-L4. A February 2015 VA pain medicine note confirms the Veteran's report of low back pain, without radiation. The pain was described as severe and worsening. Flexion was measured to 45 degrees with pain and extension was measured to 10 degrees with pain. March 2015, June 2015 and August 2015 reports from Dr. K. P. H., a private chiropractor, document reduced truncal range of motion, thoracolumbar spine pain, and pain radiating to the right lower extremity. A second VA back conditions examination was provided on August 27, 2015. The Veteran reported constant back pain without flares. He also reported right and left side radiculopathy. The examiner observed forward flexion was limited to 10 degrees. Right lower extremity muscle strength was reduced, but there was no muscle atrophy. Right foot and toe sensation to light touch was decreased. Right lower extremity radicular symptoms of mild constant pain, moderate paresthesias or dysesthesias, and severe numbness were noted. A left lower extremity radicular symptom of mild numbness was observed. The examiner indicated right sciatic nerve involvement and diagnosed moderate right-side radiculopathy. Although a left lower extremity radicular symptom of numbness was confirmed, the examiner indicated this leg was not affected by radiculopathy. A third VA back conditions examination was provided in January 2018. The examiner diagnosed lumbosacral strain, degenerative arthritis of the spine and lower extremity radiculopathy. The Veteran reported pain, tingling, and numbness in both legs. His back pain flared with prolonged sitting, standing, and walking. He was unable to drive for more than two hours or lift more than 10 pounds. Forward flexion was measured to 50 degrees. The Veteran was unable to repeat three movements. No estimate was provided for limitations following use over time or during flares. Lower extremity evaluation did not show muscle atrophy, abnormal reflexes, or decreased sensation to light touch. Straight leg raising tests were negative. The examiner noted bilateral radicular symptoms of moderate intermittent pain, mild paresthesias, and mild numbness. He described the right and left radiculopathy as mild. IVDS was not diagnosed. The Veteran constantly used a cane. In 2018, the Veteran received chiropractic treatment at Hayes Chiropractic Offices. These treatment records confirm decreased lumbar flexion with pain. A fourth VA back conditions examination was provided in December 2019. The Veteran reported constant pain. His symptoms did not flare. Forward flexion was measured to 45 degrees. The examiner estimated flexion remained the same with use over time. As the Veteran reported constant symptoms, no estimate for flares was provided. Right and left positive straight leg tests showed bilateral radiculopathy. The examiner noted left and right leg mild intermittent pain, paresthesias, and numbness. He evaluated the left and right lower extremity sciatic radiculopathy as mild. IVDS was not diagnosed. Additional 2020 treatment records from Hayes Chiropractic Offices document continued decreased lumbar flexion with pain. Back Disability Rating Prior to August 27, 2015, there is no evidence that the Veteran's forward flexion of the lumbar spine was limited to 30 degrees or less. There is no evidence of ankylosis of the spine or any portion of the spine and there is no evidence of physician prescribed bedrest. The benefit of the doubt doctrine is not applicable. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, prior to August 27, 2015, is not warranted. 38 C.F.R. § 4.71a, DC 5010-5237. On August 27, 2015 a VA examiner found the forward flexion in the Veteran's lumbar spine was limited to 10 degrees. Although the January 2018 VA examiner found forward flexion was not limited to less than 30 degrees, the Veteran was unable to complete three repetitive motions and the examiner did not provide any estimate of limitations with use over time or during flares. It is not clear from this examination that forward flexion was returned to more than 30 degrees under normal circumstances. The December 2019 VA examiner observed forward flexion to 45 degrees and estimated there would be no additional limitation during flares or with repeated use over time. However, there is no indication any improvement in forward flexion will be maintained. Moreover, private chiropractic records document continued decreased lumbar flexion without indicating the point of limitation. Resolving reasonable doubt in favor of the Veteran, forward flexion of the lumbar spine was limited to less than 30 degrees from August 27, 2015. A rating of 40 percent is warranted from that time. 38 C.F.R. § 4.71a, DC 5010-5237. There is no evidence of ankylosis, or the functional equivalent of ankylosis, and there is no evidence of physician prescribed bedrest for IVDS. A rating in excess of 40 percent is not warranted at any time. Id.; see also 38 C.F.R. § 4.71a, DC 5243. Right Lower Extremity Radiculopathy The evidence reflects the Veteran's report of right leg radicular symptoms over the entire appeal period. The June 2011 VA examiner noted symptoms of tingling and numbness in the right leg. In August 2013, right leg strength was reduced. Chiropractic records from March 2015 through August 2015 confirmed radiating pain in the right leg. An August 27, 2015 VA examination documented right leg symptoms of mild constant pain, moderate paresthesias, and severe numbness. The January 2018 VA examiner noted moderate intermittent right leg pain. The December 2019 examiner noted mild right leg intermittent pain, paresthesias, and numbness. Resolving inconsistencies in the evidence and reasonable doubt in favor of the Veteran, the evidence reflects moderate incomplete paralysis of the right sciatic nerve over the appeal period. There is no evidence of moderately severe symptoms at any time. Prior to January 5, 2018, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, DC 8520. From January 5, 2018, it is at least as likely as not that moderate right sciatic symptoms continued. A 20 percent rating is indicated. Id. Left Lower Extremity Radiculopathy The August 27, 2015 VA back conditions examination diagnosed left leg radiculopathy with mild left leg numbness. The January 2018 examiner observed mild left leg paresthesias and numbness and moderate intermittent pain. The December 2019 examiner observed mild left leg paresthesias, numbness and intermittent pain. Both examiners described mild left leg radiculopathy. Resolving inconsistencies in the evidence and reasonable doubt in favor of the Veteran, the evidence reflects mild incomplete paralysis of the left sciatic nerve from August 27, 2015. From August 27, 2015, there is no evidence of moderate left leg radiculopathy symptoms. A rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, DC 8520. 7. Entitlement to a total disability rating based on individual unemployability prior to August 2015 Criteria for TDIU TDIU may be an element of a claim for an increased disability rating when unemployability is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A combined disability rating of 100 percent does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). In this case, however, the Veteran is in receipt of a 100 percent schedular rating for the service-connected knee disability. This 100 percent schedular rating for a single disability during this time period renders moot the issue of entitlement to a TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.