Citation Nr: 21072335 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-28 538 DATE: December 2, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability, limitation of flexion is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability, impairment of knee due to instability is denied. Entitlement to an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 20 percent from February 5, 2020 and thereafter for a left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a left knee disability, impairment of knee due to instability is denied. Entitlement to an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 0 percent from February 5, 2020 and thereafter for a right hip disability, limitation of flexion is denied. Entitlement to an initial rating in excess of 10 percent for a right hip disability, thigh impairment is denied. Entitlement to an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 40 percent from February 5, 2020 and thereafter for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The preponderance of evidence weighs against a finding of a chronic respiratory condition that is due to or the result of the Veteran's period of service. 2. The evidence indicates that the Veteran's right knee disability manifests, at worst, as flexion limited to 120 degrees and extension of 0 degrees, and degenerative arthritis. 3. The evidence indicates that the Veteran's right knee impairment manifests as slight instability with no use of a prescribed assistive device due to surgical repair of the knee. 4. The evidence indicates that, prior to February 5, 2020, the Veteran's left knee disability manifested, at worst, in flexion limited to 130 degrees and extension at 0 degrees, and from February 5, 2020 and thereafter, the Veteran's left knee disability manifests in flexion limited to 20 degrees and extension at 0 degrees during flare-ups. 5. The evidence indicates that the Veteran's left knee impairment manifests as slight instability with no use of a prescribed assistive device due to surgical repair of the knee. 6. The evidence indicates that prior to February 5, 2020, the Veteran's right hip disability manifested in normal range of motion with no objective evidence of pain on motion, and from February 5, 2020 and thereafter, the Veteran's right hip disability manifests in, at worst, limitation of flexion to 110 degrees. 7. The evidence indicates that from February 5, 2020 and thereafter, the Veteran's right hip disability manifested in painful motion of the thigh upon internal rotation. 8. The evidence indicates that, prior to February 5, 2020, the Veteran's lumbar spine disability manifested in, at worst, forward flexion at 80 degrees with pain on motion, and from February 5, 2020 and thereafter, the Veteran's lumbar spine disability manifests in forward flexion of 10 degrees during flare-ups. 9. The evidence indicates that from August 8, 2016 and thereafter, the Veteran's lumbar spine disability manifests in mild radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for an initial rating in excess of 10 percent for a right knee disability, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). 3. The criteria for an initial rating in excess of 10 percent for a right knee disability, impairment of knee due to instability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). 4. The criteria for an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 20 percent from February 5, 2020 and thereafter for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). 5. The criteria for an initial rating in excess of 10 percent for a left knee disability, impairment of knee due to instability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). 6. The criteria for an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 0 percent from February 5, 2020 and thereafter for a right hip disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251-5253. 7. 6. The criteria for an initial rating in excess of 10 percent for a right hip disability, thigh impairment, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251-5253. 8. The criteria for an initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 40 percent from February 5, 2020 and thereafter for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.155, 3.816, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Codes 5010, 5243. 9. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not bee met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.155, 3.400, 3.816, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from May 2005 to June 2011. In June 2019, the Board remanded the appeal for further development. 1. Service connection for a respiratory disability The Veteran contends that his respiratory disability is due to his period of service. Specifically, the Veteran asserts that he has recurrent bronchitis that is due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that the preponderance of the evidence is against finding that the Veteran's respiratory disability began during active service, or is otherwise related to an in-service injury, event, or disease. At the outset, the Board notes that in a June 2019 Board decision, the Board found the August 2013 VA medical opinion regarding the Veteran's claimed respiratory condition to be inadequate for the purposes of adjudicating the claim. Therefore, no further analysis of this opinion is necessary. Turning to the evidence, in the April 2011 separation examination, the Veteran reported a history of bronchitis. The examiner noted that the Veteran reported having bronchitis a couple of times but did not currently have symptoms. In an August 2013 VA medical record, an examiner stated that the Veteran reported to the emergency room for acute bronchitis. Likewise, in a May 2015 VA medical record, an examiner stated that the Veteran reported to the emergency department with complaint of cough with sputum. The examiner noted that the Veteran was a smoker. The examiner gave a diagnosis of bronchitis. In a February 2020 VA examination, the Veteran reported that he last had bronchitis about six months prior to the examination. He stated that most of his breathing issues have been sinus-related. The Veteran denied chronic cough and shortness of breath. The Veteran reported that he smoked for twenty-two years, and he quit smoking two years ago in October 2017. The examiner reported that the Veteran did not have a current diagnosis of a respiratory or pulmonary condition. The examiner noted an unremarkable chest x-ray. The examiner reiterated that there are no pulmonary or respiratory disorders associated with the examination, and the Veteran concurred with this conclusion. After review of the record, the Board finds that the evidence weighs against service connection for a respiratory disorder. Although there is evidence of acute bronchitis during the appeal period, the medical evidence indicates that the Veteran does not have a chronic respiratory disorder. As such, service connection for a respiratory disorder is not warranted. The Board has considered the Veteran's contention that his period of service resulted in a respiratory disorder. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, determining the etiology of his claimed respiratory disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran has a respiratory disorder that is related to his service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that he has a respiratory disability that is related to his military service. INCREASED RATING 1. An initial rating in excess of 10 percent for a right knee disability, limitation of flexion 2. An initial rating in excess of 10 percent for a right knee disability, impairment of knee due to instability 3. An initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 20 percent from February 5, 2020 and thereafter for a left knee disability, limitation of flexion 4. An initial rating in excess of 10 percent for left knee disability, impairment of knee due to instability The Veteran contends that his left and right knee disabilities are such that higher ratings are warranted. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 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). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. Removal of symptomatic semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Under the regulations in effect prior to 2021, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 was substantially revised in 2021. Under the revised regulations, patellar instability is rated as 10 percent disabling 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). There are also revised regulations for recurrent subluxation or instability that involve ligament tear, but as the Veteran's knees did not involve ligament tears, these provisions are not applicable to the instant appeal. Turning to the evidence, in a February 2013 VA examination, the Veteran reported bilateral knee pain which he treated with over-the-counter medication. The examiner reported normal knee range of motion as the following: right knee flexion at 140 or greater degrees, extension at 0 degrees and left knee flexion at 140 or greater degrees, extension at 0 degrees. The examiner found no objective evidence of painful motion with either knee. The examiner noted that there was no additional limitation of range of motion following repetitive use testing. The examiner stated that the Veteran did not have functional loss or impairment of the knees and lower legs. The examiner further reported that there is no tenderness or pain on palpation for the joint line or soft tissues of either knee. The examiner noted that the Veteran had normal muscle strength. The examiner reported normal joint stability upon testing. The examiner stated that there is no evidence or history of recurrent patellar subluxation or dislocation. The examiner also noted that the Veteran does not now have or ever had medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner further reported that the Veteran did not have any meniscal conditions. The examiner stated that imaging studies did not document degenerative or traumatic arthritis. The examiner also stated that there was no functional impact due to the Veteran's knee conditions. In an April 2016 VA examination, the Veteran reported left knee pain greater than right knee pain. The Veteran also reported rare buckling in the left knee. The Veteran also reported popping and grinding in both knees. The Veteran denied swelling, locking, or instability in either the left or right knee. The Veteran reported a pain score of 4 out of 10 in the left knee and 1 out of 10 in the right knee. The Veteran described his pain as dull and aches. The Veteran stated that his left knee aches with prolonged sitting or driving. He also stated that the pain is aggravated by exercising. The Veteran denied flare-ups. The Veteran also denied functional loss or impairment. The examiner reported abnormal knee range of motion as the following: right knee flexion at 0 to 130 degrees and extension at 130 to 0 degrees, and left knee flexion at 0 to 130 degrees and extension at 130 to 0 degrees. The examiner remarked that range of motion is outside of normal range but is normal for the Veteran due to body habitus. The examiner also noted that range of motion itself did not contribute to functional loss. The examiner stated that there was no pain noted on examination of either knee. The examiner stated that there was no evidence of pain with weight bearing. The examiner found no evidence of crepitus. The examiner stated that there was no additional functional loss after repetitive use testing. The examiner stated that the Veteran was examined immediately after repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time in either knee. The examiner stated that the Veteran had normal muscle strength in both knees and no muscle atrophy in either knee. The examiner determined that there was no ankylosis of the knee joints. Upon testing, the examiner found medial instability and lateral instability of about 0 to 5 millimeters in the right knee. The examiner also found medial instability and lateral instability of about 0 to 5 millimeters in the left knee. The examiner found that the Veteran's knee disabilities did not cause functional impact on the Veteran's ability to work. In a February 2020 VA examination, the Veteran stated that he currently has pain in his right knee once or twice a week and daily pain in his left knee. The Veteran stated that his right knee pain is usually associated with certain activities, whereas the left knee is unpredictable and can start with dull aching pain that will even occur during the night. The Veteran reported a daily pain score of 3 out of 10 in his left knee and a 3 or 4 out of 10 in his right knee twice a week. The Veteran further reported flare-ups of the left knee occurring twice a week with a pain score of 6 out of 10 and duration of hours. The Veteran stated that getting in the recliner to elevate his knee with slight flexion helps the pain reside. The Veteran stated that he is willing to try a brace. The Veteran reported functional loss which he described as prevention from running, limited to walking less than an hour, limited standing to a half hour, sleep difficulty due to pain about once a week, limited squatting and bending, limited use of stairs, limited exposure to uneven terrains, and limited to lifting less than 50 pounds. The examiner reported abnormal knee range of motion as the following: right knee flexion at 0 to 120 degrees and extension at 120 to 0 degrees; and left knee flexion at 0 to 110 degrees and extension at 110 to 0 degrees. The examiner stated that range of motion itself does not contribute to functional loss. The examiner stated that no pain was noted on examination of the right knee. The examiner noted pain on flexion that did not cause functional loss. The examiner stated that there was objective evidence of localized tenderness in the left knee medial patella TTP. The examiner reported that there was no evidence of pain with weight-bearing and objective evidence of crepitus of either the right or left knee. The examiner found no objective evidence of pain on passive range of motion testing or when the joint is used in non-weight bearing. The examiner noted that there was no additional functional loss of the right or left knee after repetitive-use testing. The examiner reported that the Veteran's knees were not examined immediately after repetitive use over time. The examiner reported that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time in either knee. The examiner stated that the examination was not conducted during a flare up of either the right or left knee. The examiner reported that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups of both knees. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-up of the right knee. The examiner stated that pain significantly limited functional ability of the left knee with flare-ups. The examiner described this functional loss in terms of the following range of motion: left knee flexion at 0 to 20 degrees and extension at 20 to 0 degrees. The examiner stated that the Veteran had normal muscle strength in both knees and no muscle atrophy in either knee. The examiner determined that there was no ankylosis of the knee joints. The examiner reported normal joint stability upon testing. The examiner stated that there is no evidence or history of recurrent patellar subluxation or dislocation. The examiner also noted that the Veteran does not now have or ever had medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner further reported that the Veteran did not have any meniscal conditions. The examiner reported that the Veteran occasionally used a brace as an assistive device for normal mode of locomotion due to his left knee pain. The examiner noted that imaging studies indicate degenerative or traumatic arthritis of the right knee. The examiner also noted possible tiny fluid in the right suprapatellar bursa, and no joint effusion in the left knee. The examiner reported functional impact described as limitation of walking to an hour, limitation of standing to half an hour, limitation of squatting and kneeling, limitation of use of stairs, limitation of exposure to uneven terrains, and limitation of lifting to less than 50 pounds. The examiner remarked that the left knee shows progression from the last examination in terms of pain with range of motion and also now has degenerative arthritis changes showing on the Veteran's imaging studies. The examiner also remarked that the Veteran's right knee is stable. After review of the record, the Board finds that a rating in excess of 10 percent for right knee disability, limitation of flexion is not warranted. Throughout the appeal period, the Veteran's right knee disability manifested, at worst, as flexion limited to 120 degrees and extension of 0 degrees. There is no evidence of flexion limited to 30 degrees or extension that was less than full to warrant a separate rating for limitation of extension. Therefore, the Veteran's right knee limitation of flexion more closely approximates to a 10 percent rating. The Board also finds that a 10 percent rating for right knee disability, impairment due to instability to be appropriate throughout the appeals period. The April 2016 VA examination indicated slight instability of the knee. Under the prior regulations, a 10 percent rating is warranted for slight instability. There is no evidence of moderate instability of the right knee. Further, the evidence does not indicate that the Veteran is prescribed an assistive device as a regular form of locomotion after surgical repair for his right knee disability. Therefore, a 20 percent rating is not warranted for right knee disability, impairment of the knee due to instability at any point in the appeal period under either the old or amended rating criteria. Moreover, during this period, there is no evidence of recurrent subluxation, ankylosis of the knee or cartilage dislocation or removal. Thus, a separate rating for these conditions is not warranted at any point of the appeal period. Therefore, a 10 percent rating for right knee disability, impairment due to instability is appropriate. The Board finds that prior to February 5, 2020, a rating in excess of 10 percent for left knee disability, limitation of flexion is not warranted. During this period, the Veteran's left knee disability manifested, at worst, as flexion limited to 130 degrees and extension of 0 degrees. There is no evidence of flexion limited to 30 degrees or extension that was less than full to warrant a separate rating for limitation of extension. Therefore, a 20 percent rating for limitation of flexion is not warranted during this period. Thus, the Veteran's left knee limitation of flexion during this period more closely approximates to a 10 percent rating. The Board finds that, from February 5, 2020 and thereafter, a rating in excess of 20 percent for left knee disability, limitation of flexion is not warranted. During this period, the Veteran's left knee disability manifested, at worst, as flexion limited to 20 degrees and extension of 0 degrees during flare-ups. There is no evidence of flexion limited to 15 degrees or extension that was less than full to warrant a separate rating for limitation of extension. Therefore, a 30 percent rating for limitation of flexion is not warranted. Thus, the Veteran's left knee limitation of flexion during this period more closely approximates to a 20 percent rating. The Board finds that a 10 percent rating for left knee disability, impairment due to instability to be appropriate throughout the appeals period. The April 2016 VA examination indicated slight instability of the knee. Under the prior regulations, a 10 percent rating is warranted for slight instability. There is no evidence of moderate instability of the left knee. Further, while the evidence indicates use of a brace as an assistive device as a regular form of locomotion, the evidence does not indicate that the Veteran has a history of surgical repair requiring prescription by a medical provider for such assistive device. Therefore, a 20 percent rating is not warranted for left knee disability, impairment of the knee due to instability at any point in the appeal period. Moreover, during this period, there is no evidence of recurrent subluxation, ankylosis of the knee or cartilage dislocation or removal. Thus, a separate rating for these conditions is not warranted at any point of the appeal period. Therefore, a 10 percent rating for left knee disability, impairment due to instability is appropriate. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, even when considering reported functional impairment during repetitive use over time and flare-ups, the evidence does not demonstrate that the Veteran's limited right and left knee flexion more nearly approximated the next higher ratings for any stages during the appeal period. To the extent that the Veteran's left knee impairment during flare-ups more closely approximate to a higher rating, the Veteran has already been awarded grant of the next highest rating. Thus, consideration under DeLuca has been provided and additional consideration for higher ratings is not warranted for all periods on appeal. DeLuca v. Brown, 8 Vet. App. 202 (1995). In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. 5. An initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 0 percent from February 5, 2020 and thereafter for a right hip disability, limitation of flexion 6. An initial rating in excess of 10 percent for right hip, thigh impairment The Veteran contends that his right hip disability is such that higher ratings are warranted. The Veteran is currently rated for right hip disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5252 and 5253. These diagnostic codes were not changed when the rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. Normal ranges of motion of the hip include flexion from 0 degrees to 125 degrees, and abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a. Impairment of the thigh is rated under Diagnostic Code 5253. Limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees, in the affected leg warrants a 10 percent rating. Limitation of adduction of the thigh, where one cannot cross legs, also warrants a 10 percent rating. Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a. Ankylosis of the hip is evaluated under Diagnostic Code 5250. Favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating. Intermediate ankylosis warrants a 70 percent rating. Unfavorable ankylosis with extremely unfavorable ankylosis, the foot not reaching the ground, crutches necessitated warrants a 90 percent rating. 38 C.F.R. § 4.71a. The Board notes that, throughout the appeal period, the evidence indicates that the Veteran did not have ankylosis of the joint. Therefore, analysis will continue under the applicable Diagnostic Codes. Turning to the evidence, in an August 2013 VA examination, the Veteran reported right hip pain with flare-ups described as hip pain during hip abduction and during intercourse. The Veteran reported that pain shoots down his right thigh. The examiner reported normal range of motion described as flexion at 125 or greater degrees with no objective evidence of painful motion and extension at 0 to greater than 5 degrees with no objective evidence of painful motion. The examiner stated that abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner stated that the Veteran did not experience functional loss after repetitive use testing. The examiner reported normal muscle strength. The examiner stated that there was no ankylosis of the hip joint and no malunion or nonunion of femur, flail hip joint or leg length discrepancy. The examiner stated that the Veteran did not use any assistive device as a normal mode of locomotion. The examiner also noted that there was no functional impact of the Veteran's right hip disability. In an April 2016 VA examination, the Veteran reported progressively worsening symptoms with frequency of pain increasing to two to three times per month on average. The Veteran stated that at worst, his pain is a 6 out of 10 and described as sharp and stabbing. The Veteran stated that his right hip symptoms can occur during driving and are very uncomfortable. He stated that sitting is affected by his hip disability. He also reported repeated hip popping during intercourse. The examiner noted that the Veteran did not report flare-ups or functional loss. The examiner reported normal range of motion of the right hip as the following: flexion at 0 to 125 degrees, extension at 0 to 30 degrees, abduction at 0 to 45 degrees, adduction at 0 to 25 degrees, external rotation at 0 to 60 degrees, and internal rotation at 0 to 40 degrees. The examiner noted that there was no pain noted on examination, no evidence of pain with weight bearing, no objective evidence of localized tenderness and no objective evidence of crepitus. The examiner stated that there was no additional loss of function or range of motion after repetitive use testing. The examiner stated that the Veteran was examined immediately after repetitive use over time. The examiner noted that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner reported normal muscle strength and no muscle atrophy. The examiner stated that there was no ankylosis of the hip joint. The examiner further reported that there was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner noted that the Veteran did not use any assistive device as a normal mode of locomotion. The examiner also noted that there was no functional impact of the Veteran's right hip disability. In a February 2020 VA examination, the Veteran reported problems with popping and locking, stating that pain will occur when he locks up but not with popping. The Veteran stated that his hip will not lock up very often because he avoids precipitating movements. The Veteran reported a pain score of 4 to 5 out of 10 when his hip locks and resolved as soon as he stops the precipitating motion that causes his hip to lock. The Veteran reported that flare ups occur seldom with the last one occurring a year ago. The Veteran reported functional loss in that he no longer does certain exercises and stretched. The examiner reported abnormal range of motion of the right hip as the following: flexion at 0 to 110 degrees, extension at 0 to 30 degrees, abduction at 0 to 45 degrees, adduction at 0 to 25 degrees, external rotation at 0 to 60 degrees, and internal rotation at 0 to 40 degrees. The examiner stated that there was no evidence of pain on passive range of motion and no evidence of pain when the joint is used in non-weight bearing. The examiner stated that adduction was not limited such that the Veteran could not cross his legs. The examiner stated that pain was noted on examination of internal rotation but did not result in functional loss. The examiner reported that there was no localized tenderness and no objective evidence of crepitus. The examiner stated that there was no additional loss of function or range of motion after repetitive use testing. The examiner stated that the Veteran was not examined immediately after repetitive use over time. The examiner noted that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner reported normal muscle strength and no muscle atrophy. The examiner stated that there was no ankylosis of the hip joint. The examiner further reported that there was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner noted that the Veteran did not use any assistive device as a normal mode of locomotion. The examiner also noted that there was no functional impact of the Veteran's right hip disability. The examiner remarked that the Veteran's hip disability is stable. After review of the record, the Board finds that prior to February 5, 2020, a rating in excess of 10 percent for right hip, limitation of flexion, is not warranted. During this period, the evidence indicates that the Veteran's right hip disability limitation of flexion manifested in normal flexion of 125 degrees with no objective evidence of painful motion on flexion. The evidence does not indicate flexion limited to 30 degrees. Therefore, a 20 percent rating during this period is not warranted. Thus, the Veteran's right hip limitation more closely approximates to a 10 percent rating during this period. From February 5, 2020 and thereafter, a compensable rating for limitation of flexion is not warranted. During this period, the Veteran's right hip disability manifested in limitation of flexion to 110 degrees. The evidence does not indicate limitation of flexion to 45 degrees. Therefore, a 10 percent rating for limitation of flexion is not warranted. Furthermore, the evidence indicates that, throughout the appeal period, the Veteran's right hip thigh extension was at normal. Therefore, a separate compensable rating is not warranted for limitation of extension. From February 5, 2020, a 10 percent rating for right hip, thigh impairment is appropriate. During this period, the Veteran's disability manifested in painful motion of the thigh upon internal rotation. The evidence does not indicate limitation of abduction such that motion is lost beyond 10 degrees. Therefore, a 20 percent rating for right hip, thigh impairment is not warranted. The Board also considered whether the Veteran is entitled to higher ratings due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 206-07. Importantly, the Veteran's 10 percent ratings already stem from painful motion, pursuant to 38 C.F.R. § 4.59, rather than meeting the schedular criteria under the applicable diagnostic code for extension. In light of the Veteran's reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to higher ratings for his service-connected right hip disabilities. In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. 7. An initial rating in excess of 10 percent prior to February 5, 2020 and in excess of 40 percent from February 5, 2020 and thereafter for a lumbar spine disability 8. An initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity The Veteran contends that his lumbar spine disability is such that a higher rating is warranted. The Veteran is rated for lumbosacral strain, degenerative arthritis of the lumbar spine, under Diagnostic Code 5242-5237. Hyphenated diagnostic codes signify that the rating for a service-connected disability is based upon how another disability would be rated. 38 C.F.R. § 4.27. The diagnostic code for the service-connected disability is after the hyphen. Here, the Veteran's lumbar spine disability due to degenerative arthritis of the spine is rated based on limitation of motion under the appropriate code. Under Diagnostic Code 5242, which is governed by a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted when the Veteran has 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 20 percent rating is warranted when 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. Id. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Veteran may also receive separate compensable ratings for sensory disability secondary to the lumbar spine disability. Under Diagnostic Code 8520, mild incomplete paralysis due to sciatica is rated at 10 percent disabling; moderate incomplete paralysis due to sciatica is rated 20 percent disabling; moderately severe incomplete paralysis due to sciatica is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, due to sciatica, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Here, however, the Veteran's lumbar spine osteoarthritis is rated under Diagnostic Code 5242 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula) did not change under the revised regulations. As such, the rating criteria for the Veteran's lumbar spine osteoarthritis is unchanged and the Board will proceed with adjudication. Turning to the evidence, in an August 2013 VA examination, the Veteran reported flare-ups described as spasms and pain caused by heavy lifting, with no weakness or fatigability noted. The examiner reported lumbar spine range of motion as the following: forward flexion at 0 to 90 degrees with objective evidence of painful motion noted at 80 degrees, extension at 0 to 30 or greater degrees, right lateral flexion at 0 to 30 or greater degrees, left lateral flexion at 0 to 30 or greater degrees, right lateral rotation at 0 to 30 or greater degrees, and left lateral rotation at 0 to 30 or greater degrees. The examiner stated that there was no additional functional loss upon repetitive testing. The examiner noted less movement than normal and pain on movement as contributing factors to the Veteran's disability. The examiner further reported that there was localized tenderness at the paraspinal muscle. The examiner reported normal muscle strength. The examiner stated that there was no muscle atrophy. The examiner also reported normal deep tendon reflexes and normal sensation upon testing. The examiner stated that there was no radiculopathy, neurologic abnormalities, or IVDS of the lumbar spine. In an April 2016 VA examination, the Veteran reported flare-ups reported as his back "going out" occasionally, and a 7 out of 10 pain score described as stabbing, sharp pain. The examiner reported normal initial range of motion stated in degrees as the following: forward flexion at 0 to 90 degrees, extension at 0 to 30 degrees, right lateral flexion at 0 to 30 degrees, left lateral flexion at 0 to 30 degrees, right lateral rotation at 0 to 30 degrees, and left lateral rotation at 0 to 30 degrees. The examiner stated that no pain was noted on examination. The examiner found no evidence of pain with weight bearing. The examiner also stated that there was no objective evidence of localized tenderness or pain on palpation of the joints. The examiner stated that there was no additional functional loss upon repetitive testing. The examiner stated that the Veteran was examined immediately after repetitive use over time. The examiner noted that functional ability was not significantly limited by pain, weakness, fatigability, or incoordination with repeated use over a period of time. The examiner stated that the Veteran was not examined during a flare-up. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner reported that they were unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The examiner explained that it is not possible without mere speculation to estimate either loss of range of motion or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The examiner reported normal muscle strength. The examiner stated that there was no muscle atrophy. The examiner also reported normal deep tendon reflexes and normal sensation upon testing. The examiner stated that there was no radiculopathy, ankylosis, neurologic abnormalities, or IVDS of the lumbar spine. The examiner summarized the Veteran's disability as minimal disability in which the Veteran can cope with most activities of daily living. The examiner further summarized that no treatment may be indicated except for suggestions on lifting, posture, physical fitness and diet. The examiner also stated sedentary occupations (ex. secretaries) may experience more problems than others. The examiner reported that there was no functional impact of the Veteran's lumbar spine disability on his ability to work. In a February 2020 VA examination, the Veteran reported pain about once a month that will usually be a 7 out of 10 in pain and will subside over a few days on both sides of the lumbar area. The Veteran stated that during these flare-ups, he will also have pain radiating from the buttocks to the lateral aspect of the thigh to knee. The Veteran stated that he switched from aviation to computer IT and spends most of his time at his desk or at someone else's desk and does not carry a lot of equipment. The Veteran stated that his flare-ups occur monthly with a duration of two to five days. The Veteran noted some pain relief with standing. The Veteran reported functional loss in that he can no longer work on cars, no running, limitation of lifting to 50 pounds, and limited sitting to two hours. The examiner reported abnormal initial range of motion stated in degrees as the following: forward flexion at 0 to 90 degrees, extension at 0 to 30 degrees, right lateral flexion at 0 to 30 degrees, left lateral flexion at 0 to 30 degrees, right lateral rotation at 0 to 30 degrees, and left lateral rotation at 0 to 30 degrees. The examiner stated that pain was noted on examination of right lateral flexion and left lateral flexion, but did not result in functional loss. The examiner further reported that there was localized tenderness at the paraspinal TTP. The examiner reported no pain on weight bearing. The examiner stated that there was no additional functional loss upon repetitive testing. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner reported that the examination was not conducted during a flare-up. The examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner also stated that pain, fatigue and weakness significantly limit functional ability with flare-ups. The examiner described this limitation as the following: forward flexion at 0 to 10 degrees, extension at 0 to 0 degrees, right lateral flexion at 0 to 10 degrees, left lateral flexion at 0 to 10 degrees, right lateral rotation at 0 to 10 degrees, and left lateral rotation at 0 to 10 degrees. The examiner reported normal muscle strength. The examiner stated that there was decreased deep tendon reflex in the left thigh. The examiner also noted positive right leg straight leg testing results. The examiner found that the Veteran had moderate paresthesias and/or dysesthesias of the left lower extremity. The examiner reported mild radiculopathy of the left lower extremity involving the left sciatic nerve. The examiner reported no ankylosis of the spine. The examiner found that the Veteran did have IVDS of the lumbar spine; however, he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner went on to report that the Veteran did not use an assistive device as a normal mode of locomotion. The examiner noted functional impact, which was described as limitation of lifting more than 50 pounds and limitation in sitting more than two hours. The examiner remarked that this examination shows progression of the lumbar spine condition through his imaging studies and his physical examination, which indicated decreased range of motion with more associated pain. The examiner reiterated that the examination was positive for radicular symptoms and signs on the left lower extremity which is also progression and secondary to his lumbar condition. After review of the record, the Board finds that prior to February 5, 2020, a rating in excess of 10 percent for the lumbar spine disability is not warranted. During this period, the Veteran's symptoms manifested in forward flexion of, at worst, 80 degrees with painful motion. The evidence does not indicate that the Veteran's forward flexion manifested in 60 degrees or less during this period. Moreover, the Veteran had a combined range of motion greater than 120 degrees during this period. Thus, a 20 percent rating is not warranted during this period. Therefore, the Veteran's disability more closely approximates to a 10 percent rating during this period. The Board finds that from February 5, 2020 and thereafter, a rating in excess of 40 percent for a lumbar spine disability is not warranted. The evidence indicates that, during this period, the Veteran's lumbar spine symptoms manifest in forward flexion of less than 30 degrees during flare-ups. The Board notes that the medical evidence does not show that the Veteran's lumbar spine disability manifested in favorable or unfavorable ankylosis of the lumbar spine at any point in the pendency of the claim. Thus, a 50 percent rating is not warranted. Therefore, the Veteran's lumbar spine disability more closely approximates to a 40 percent rating during this period. The Board also finds that a 10 percent rating for peripheral neuropathy of the left lower extremity to be appropriate. The Board notes that in a July 2020 rating decision, the RO granted a 10 percent rating for radiculopathy of the left lower extremity, effective August 8, 2016. The evidence indicates that the Veteran's symptoms manifest as mild radiculopathy of the left lower extremity involving the sciatic nerve. The evidence does not indicate that the Veteran's disability manifested as moderate radiculopathy. Therefore, a 20 percent rating is not warranted. Thus, the Veteran's peripheral neuropathy more closely approximates to a 10 percent rating. In making this determination, the Board has considered whether there was any additional functional loss not contemplated in the evaluations for the Veteran's orthopedic manifestations of his service-connected thoracolumbar spine disability. See 38 C.F.R. §§ 4.40, 4.59 (2020); see DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Here, the February 2020 VA examination showed limited functional ability during flare-ups, which was contemplated in the disabling evaluation. However, there is no evidence that the Veteran's thoracolumbar spine was ankylosed at any point, or considered to be the functional equivalent of ankylosed, even considering flare-ups or repetitive motion. The Board also notes that the Veteran was found to have IVDS of the spine; however, analysis under Incapacitating Episodes would not result in a higher rating as there is no evidence of incapacitating episodes. Therefore, a rating under this formula is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.