Citation Nr: 21072918 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-29 345 DATE: December 6, 2021 ORDER Entitlement to an effective date prior to August 1, 2007 for the assignment of 10 percent for left knee internal derangement is denied. Entitlement to an effective date prior to August 1, 2007 for the assignment of 10 percent for right knee internal derangement is denied. Entitlement to restoration of a 20 percent rating for lumbar disc disease from February 7, 2021 is granted. Entitlement to an evaluation of 20 percent, but no higher, from December 5, 2016 to January 27, 2017 for lumbar disc disease with strain is granted. Entitlement to an evaluation in excess of 20 percent from December 5, 2016 for lumbar disc disease with strain is denied. Entitlement to an evaluation in excess of 10 percent for left knee internal derangement is denied. Entitlement to an evaluation in excess of 10 percent for right knee internal derangement is denied. Entitlement to an initial evaluation of 10 percent, but no higher, for the period from May 31, 2018, for right knee instability is granted. Entitlement to a separate evaluation of 20 percent for the period from April 28, 2018 to August 8, 2018 for dislocated meniscus of the right knee with locking, pain, and effusion is granted. Entitlement to a separate evaluation of 10 percent for the period from August 8, 2018 for symptomatic removal of meniscus of the right knee is granted. Entitlement to an evaluation in excess of 10 percent for left eye venous stasis retinopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 21, 2019 prior to August 28, 2020 is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent from January 17, 2018 prior to January 11, 2021 and in excess of 40 percent after January 11, 2021, for right lower extremity radiculopathy of sciatic nerve, to include assignment of an earlier effective date, is remanded. Entitlement to an initial evaluation in excess of 10 percent from January 17, 2018 prior to January 11, 2021 and in excess of 20 percent after January 11, 2021 for right lower extremity radiculopathy of anterior crural/femoral nerve), to include assignment of an earlier effective date, is remanded. Entitlement to an initial evaluation in excess of 40 percent from January 11, 2021, to include assignment of an earlier effective date, for left lower extremity radiculopathy of sciatic nerve, is remanded. Entitlement to an initial evaluation in excess of 20 percent from January 11, 2021, to include assignment of an earlier effective date, for left lower extremity radiculopathy of anterior crural/femoral nerve, is remanded. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for knee disability was received on June 16, 2017. 2. The reduction in the disability rating for lumbar disc disease with strain from 20 percent to 10 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. 3. The Veteran's lumbar disc disease, a progression of service-connected lumbar spine disability, was first noted in an MRI result, dated December 5, 2016, within one year from the date of claim for an increased rating. 4. The evidence preponderates against finding that the Veteran had forward flexion to 30 degrees or less at any time during the appeal period, even during flareups or repeated use over time based on the Veteran's reported symptomatology of flareups, or that his lumbar spine disability resulted in functional equivalent of favorable ankylosis of the entire thoracolumbar spine such as difficulty walking because of a limited line of vision; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching. 5. The evidence preponderates against finding that the Veteran's left knee disability resulted in symptomatology more nearly approximated by limitation of flexion to 30 degrees or worse or limitation of extension to 15 degrees or worse, even with consideration of additional loss due to pain or flareups. 6. The evidence preponderates against finding that the Veteran's right knee disability resulted in symptomatology more nearly approximated by limitation of flexion to 30 degrees or worse or limitation of extension to 15 degrees or worse, even with consideration of additional loss due to pain or flareups. 7. With resolution of reasonable doubt in the Veteran's favor, since May 31, 2018, the Veteran has had slight instability in the right knee during the appeal period. 8. For the period from April 28, 2018 to August 8, 2018, the Veteran had dislocated meniscus in the right knee with locking, pain, and effusion into the joint. 9. On August 8, 2018, the Veteran underwent debridement of the meniscus in the right knee and for the period from August 8, 2018, the removal of meniscus in the right knee remained symptomatic. 10. For the entire appeal period, the Veteran's service-connected left eye disability did not result in any incapacitating episode as defined by the regulations or in any visual impairment. 11. From December 20, 2019, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 1, 2007 for the assignment of a 10 percent rating for left knee internal derangement have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to August 1, 2007 for the assignment of a 10 percent rating for right knee internal derangement have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The reduction in the disability rating for lumbar disc disease with strain from 20 percent to 10 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344. 4. The criteria for a 20 percent rating, but no higher, from December 5, 2016 to January 27, 2017 for lumbar disc disease with strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes 5237, 5242. 5. The criteria for an evaluation in excess of 20 percent from December 5, 2016 for lumbar disc disease with strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes 5237, 5242. 6. The criteria for an evaluation in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 7. The criteria for an evaluation in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 8. With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial evaluation of 10 percent, but no higher, from May 31, 2018 for right knee instability have been met. 38U.S.C. §§1155, 5107;38C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5257. 9. For the period from April 28, 2018 to August 8, 2018, the criteria for a separate rating of 20 percent for right knee cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.27, 4.71a, Diagnostic Code 5258. 10. For the period from August 8, 2018, the criteria for a separate rating of 10 percent for symptomatic removal of right knee semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.27, 4.71a, Diagnostic Code 5259. 11. The criteria for a rating in excess of 10 percent for left eye venous stasis retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.79, Diagnostic Code 6006. 12. From December 21, 2019, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to August 1991. During the appeal period for the increased rating claim for bilateral knee disabilities, service connection for left and right knee instability was granted in an October 2020 and a November 2020 rating decision, respectively. In an April 2021 rating decision, the RO continued the initial rating of 10 percent for the left knee instability. And in a May 2021 rating decision, the RO continued the initial rating of 10 percent for left and right knee instability. The Veteran subsequently filed a VA From 10182, notice of disagreement in August 2021 for the issue of left knee instability, and thus, that issue of left knee instability is now in a separate appeal stream, subject to the modernized review system. As for the right knee instability issue, there is no such notice of disagreement subsequent to any of the rating decisions. Additionally, a March 2018 rating decision granted service connection for right lower extremity radiculopathy and assigned an initial rating, and a June 2021 rating decision granted service connection for left lower extremity radiculopathy and assigned an initial rating. As the symptoms and signs that have since then attributed to these conditions have been reported by the Veteran during the pendency of the appeal and the Veteran has not indicated satisfaction with the ratings within the appeal period, they are considered as part of an increased rating claim for right knee disability and lumbar spine disability on appeal. Chavis v. McDonough, 34 Vet. App. 1 (2021). An August 2021 rating decision granted TDIU effective August 28, 2020. The issue of entitlement to a TDIU prior to August 28, 2020 is before the Board as part and parcel of the claims for an increased rating on appeal. See Harper v. Wilkie, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). As a final preliminary matter, although the AOJ has changed ratings on appeal during the pendency of the appeal, which resulted in creating staged ratings for some disabilities at issue, the Veteran has not indicated satisfaction with any of the awards of increased or reduced disability ratings on appeal, therefore, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Earlier Effective Date The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). 1. Entitlement to an effective date prior to August 1, 2007 for the assignment of 10 percent for left knee internal derangement 2. Entitlement to an effective date prior to August 1, 2007 for the assignment of 10 percent for right knee internal derangement A review of the records indicates that the Veteran's claim for an increased rating for knee disability was received on June 21, 2017, from which the current appeal originates. Service connection for the bilateral knee disability was granted in a January 1992 rating decision. The Veteran's intent to file a claim was received on February 12, 2016, but this was not followed by a formal claim within one year since the date of receipt. As such, the effective date for the current claim of increased rating cannot be before the date currently assigned. Thus, the Veteran's claim for an effective date prior to August 1, 2007 for the assignment of 10 percent for left and right knee internal derangement is denied. Rate Reduction 3. Whether the decision to reduce the evaluation assigned for lumbar disc disease from a 20 percent to 10 percent effective February 7, 2021 was proper The regulatory provisions pertaining to rating reductions contain notification and due process requirements that fall outside the ambit of the Veterans Claims Assistance Act (VCAA). See 38 C.F.R. § 3.105(e). Accordingly, where a reduction in a rating would not result in a decrease in the overall amount of compensation payable, there are no procedural requirements. In this case, the due process provisions outlined in 38 C.F.R. § 3.105 apply because at the time when the proposal for reduction was made, the Veteran was notified that the reduction would result in a decrease in the Veteran's combined evaluation for compensation from 70 to 60 percent. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29-97 (Aug. 1997). Generally, 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence and, if applicable, certain procedural guidelines have been followed. 38 C.F.R. §§ 3.105(e), (i)(2)(i). There are procedural protections that apply to stabilized disability ratings that "have continued for long periods at the same level (5 years or more)." 38 C.F.R. § 3.344(c). The use of parentheses in 38 C.F.R. § 3.344(c) suggests that the five- year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). At the time of the August 2021 rating decision which reduced the rating, the Veteran's 20 percent evaluation had been in effect for less than five years since January 27, 2017. Several regulations apply to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. VA rating reductions, as with all VA rating decisions, must be based upon review of the entire history of a veteran's disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction is not proper unless a veteran's disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in the condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must be determined that any such improvement also reflects an improvement in a veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 3.344(c), 4.2, 4.10. In a rating reduction case, VA has the burden to establish that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Board must focus on the evidence available to the RO at the time the reduction was made, although post-reduction medical evidence may be considered in the context of evaluating whether the disability actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Procedural Requirements With a rating reduction that results in a reduction in the overall amount of compensation paid, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). When an RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). The RO must issue a rating action proposing the reduction and set forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and 30 days to request a predetermination hearing. A rating action then will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i). If VA does not receive additional evidence within that period, it will take final rating action and reduce the award effective the last day of the month following 60 days from the date of notice to the beneficiary of the proposed action. In a May 2021 rating decision, the RO proposed to reduce the evaluation of 20 percent to 10 percent for the Veteran's lumbar disc disease because it found that the Veteran's lumbar spine disability had combined range of motion greater than 120 degrees but not greater than 235 degrees and forward flexion was greater than 60 degrees but not greater than 85 degrees, with additional symptoms of painful motion and X-ray evidence of degenerative arthritis. Subsequently, the RO notified the Veteran of this proposal and informed him that he had 60 days to submit additional evidence showing that his compensation payments should be continued at their present level, and 30 days from the date of the notice letter to request a predetermination hearing. The Veteran did not request a hearing nor did he submit additional evidence. In an August 2021 rating decision, the RO effectuated the reduction, effective February 7, 2021, stating that the evidence showed his disability was improved; it cited the results from a VA examination conducted on February 7, 2021. The Board finds that the RO did not follow the procedural requirement under 38 C.F.R. § 3.105(e). Rather than making the reduction effective the last day of the month following 60 days from the May 2021 date of the notice to the Veteran of the proposed action, the RO erroneously set the effective date to be February 7, 2021. For these reasons, the Board finds that VA has not complied with the procedural due process requirements for this reduction claim. Substantive Requirements Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In any rating reduction case, it must be determined that an improvement in a disability actually has occurred, and also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413, 42021 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281282. For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. 38 C.F.R. § 3.344(c). For ratings in effect for five years or more, 38 C.F.R. § 3.344 (a)(b) applies. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. Therefore, because the Veteran's 20 percent rating was in effect since January 27, 2017, the provisions of 38 C.F.R. § 3.344(c) (described below) are applicable to this appeal. Nevertheless, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344(c) requires improvement before a rating is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating. In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. In this case, when looking at the evidence for which the RO considered when assigning a 20 percent disability rating, and when looking at the evidence for which the RO considered at the time the reduction was made, the Board finds that the rating reduction was not proper because the evidence of record fails to show actual improvement in the ability to function under the ordinary conditions of life and work. In an October 2017 rating decision, the RO assigned a 20 percent rating for the lumbar spine disability based on the finding that forward flexion was greater than 30 degrees, but not greater than 60 degrees with combined range of motion greater than 120 degrees but not greater than 235 degrees and painful motion. Specifically, the finding is based on an August 2017 VA examination, during which the Veteran reported muscle spasms, stiffness, pain, decreased range of motion, and weakness and forward flexion was to 40 degrees with combined range of motion 140 degrees. He reported difficulty in standing for long periods of time or walking for long distances. Treatment noted was Flexeril and steroid injections as well as physical therapy and chiropractic therapy. In the May 2021 rating decision, the RO considered the results of the February 2021 VA examination, during which the Veteran reported having difficulty in bending and bending and in sitting and standing for prolonged periods of time during flareups. Forward flexion was to 80 degrees with combined range of motion 200 degrees. The examiner noted that the Veteran's symptoms were progressive recurrent back pain with no further detail. Treatment noted was motrin and steroid injections. One month prior to the VA examination, the Veteran submitted a VA Form 21-8940, in which he reported that his back and knee pain impacted his ability to work. In the August 2021 rating decision, which effectuated the rate reduction proposal, the RO provided the same finding and justification for the rate reduction. In light of the above evidence, the Board finds that the reduction in the disability rating for the Veteran's lumbar spine disability was not proper. The August 2021 rating decision which reduced the disability rating demonstrates that the RO appears to have essentially analyzed the issue of reduction of the 20 percent rating in the same manner as it would analyze an increased rating claim. Specifically, the RO did not address whether there was an "actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Id. Overall, the evidence does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work in light of his lumbar spine disability at the time of the August 2021 reduction. Rather, the competent and credible lay statements from the Veteran indicate that the functional impacts and symptoms of the Veteran's lumbar spine disability remained the same and potentially worsened, despite an apparent improvement in the range of motion. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For the foregoing reasons, the reduction in the disability rating for the Veteran's lumbar spine disability was not proper. This renders the reduction from 20 percent to 10 percent void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 20 percent rating for the Veteran's lumbar disc disease with strain must be restored, effective February 7, 2021. Increased Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation of Lumbar Spine Disability and Bilateral Knee Disability Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran's claim for increased ratings for his lumbar spine and knee disability was received on June 16, 2017. Thus, the Board looks to the evidence concerning the state of the disabilities at issue one year prior to June 2017. 4. Evaluation in excess of 20 percent prior to January 27, 2017 for lumbar disc disease with strain and evaluation in excess of 20 percent from January 27, 2017 to February 7, 2021 The Veteran's lumbar spine disability is currently evaluated under 38 C.F.R. § 4.71A, Diagnostic Code 5242-5237. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 5242-5237 reflects that the Veteran's back disability is partially described as degenerative arthritis under Diagnostic Code 5242 and lumbosacral strain under Diagnostic Code 5237. Both diagnostic codes refer to the General Rating Formula for Disease and Injuries of the Spine. Under the General Rating Formula both prior to and since the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is 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 for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. The rating criteria provide that 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. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1 (2021). Turning to the evidence of record, a December 2016 MRI of the lumbar spine showed degenerative changes. A January 2017 private treatment record reflects a diagnosis of lumbar degenerative disc disease at L4-5 and L5-S1. An August 2017 VA examination reflects a diagnosis of lumbosacral strain. He reported having muscle spasms, stiffness, pain, decreased range of motion, and weakness. The treatment consisted of taking Flexeril, having injections in the back, and physical therapy and chiropractic therapy. The Veteran reported having flareups in which the pain and muscle spasms increased, which resulted in difficulty in standing for long periods of time or walking for long distances. He indicated that flareups were so intense that it often led to "hospitalizations." The initial range of motion test showed forward flexion to 40 degrees with combined range of motion in 140 degrees. Pain was noted in forward flexion and extension, and the decreased range of motion resulted in functional loss. Although no additional loss in range of motion during a flareup was reported, repeated use over a period of time did not result in additional loss in range of motion. Pain, weakness, and lack of endurance caused functional loss with repeated use over a period of time. No ankylosis was found. He did not have intervertebral disc syndrome (IVDS). Regular use of brace and occasional use of cane were noted. The Veteran reported that he worked as a trainer, where he had to sit and could not stand for a long period of time. He indicated that he was not able to demonstrate or lecture for long periods of time due to back pain. He reported missing work during flareup episodes. The examiner further noted that sensory findings on examination were due to his diabetic peripheral neuropathy and he had been hospitalized twice in military due to his back disability. A February 2018 VA examination reflects a diagnosis of lumbosacral strain and lumbar disc disease with lumbar radiculopathy. The Veteran reported having intermittent lumbar injections with some success. He reported having flareups, lasting up to 3 days, about once per month causing him to limit activity and rest the back. He did not seek medical attention for flareups. During flareup episodes, the Veteran experienced limited prolonged walking, standing, bending, stooping, and lifting. The initial range of motion test showed forward flexion to 90 degrees with combined range of motion in 230 degrees. Pain was noted in forward flexion and right lateral flexion. The examiner did not provide an estimate for additional loss in range of motion during flareups or with repeated use over a period of time. No ankylosis was found. He did not have IVDS. Regular use of cane and occasional use of lumbar support were noted. The examiner noted a December 2016 MRI result, which showed lumbar disc disease with canal and facet stenosis. The Veteran stated that his job was not limited, but he had to sit more when teaching. Walking was limited to about a quarter of a mile before needing a short rest. Standing was limited to 20 minutes before needing a short rest. A February 2021 VA examination reflects a diagnosis of lumbosacral strain and lumbar disc disease with back pain. Progressive recurrent back pain was noted, and current treatment consisted of motrin and steroid injections. The Veteran reported having a weekly episode of moderate flareup lasting for hours, characterized by sharp aching. He reported that his ability to bend, lift, and do prolonged sitting and standing was impacted. The initial range of motion test showed forward flexion to 80 degrees with combined range of motion in 200 degrees. Pain was noted in all motions tested except for right lateral rotation. There was no additional loss in range of motion during flareups or with repeated use over time. No ankylosis was found. He did not have IVDS. No use of assistive device was noted. The examiner found that the Veteran's back disability impacted his work because it affected his ability to bend, lift, and do prolonged sitting and standing. Based on a review of the evidence noted above and of record pertinent to the appeal period, the Board finds that the Veteran's lumbar spine flexed to 40 degrees with combined range of motion in 140 degrees at worst and exhibited painful motion with functional impairment in bending, lifting, and prolonged sitting and standing. In particular, the evidence preponderates against finding that the Veteran had forward flexion to 30 degrees or less at any time during the appeal period, even during flareups or repeated use over time based on the Veteran's reported symptomatology of flareups, or that his lumbar spine disability resulted in functional equivalent of favorable ankylosis of the entire thoracolumbar spine such as difficulty walking because of a limited line of vision; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching. Lastly, the Veteran is not diagnosed with IVDS, and the evidence does not show that he had any incapacitating episodes defined under Diagnostic Code 5243. Therefore, the Veteran's claim for an evaluation in excess of 20 percent is denied. As for the effective date of the assignment of 20 percent, the Board finds that the earliest record of degenerative disc disease, the progression of the Veteran's service-connected lumbar spine disability as noted in the February 2018 VA examination, was first documented in the result of the MRI dated December 5, 2016, within the one year period from the date of claim. Therefore, with resolution of reasonable doubt in the Veteran's favor, the 20 percent rating for the lumbar spine disability is warranted effective December 5, 2016. 5. Evaluation in excess of 10 percent for left knee internal derangement 6. Evaluation in excess of 10 percent for right knee internal derangement 7. Initial evaluation in excess of 10 percent for right knee instability and an effective date prior to August 28, 2020 for the award of service connection 8. Separate evaluation for dislocated right knee meniscus with locking, pain, and effusion 9. Separate evaluation for symptomatic removal of the right knee meniscus The Veteran's knee disability is currently rated under Diagnostic Code 5260, limitation of flexion of leg. The knee instability is separately rated under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee. The limitation of knee motion Diagnostic Codes are found under Diagnostic Codes 5260 and 5261 for limitation of leg motion. 38 C.F.R. § 4.71a. Diagnostic Code 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. Diagnostic Code 5261, limitation of extension of a leg, provides a 10 percent rating when extension is limited to 10 degrees and a 20 percent rating when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees and a 40 percent rating for extension limited to 30 degrees. A maximum 50 percent rating applies when extension is limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004. While the above diagnostic codes pertinent to the Veteran's disability were not changed substantively, Diagnostic Code 5257 was revised in the February 2021 amendment. Prior to February 7, 2021, Diagnostic Code 5257 provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. The terms slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Objective medical evidence is not required to establish knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under the amended criteria, Diagnostic Code 5257 provides for recurrent subluxation or instability with a 30 percent rating that is unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, a 20 percent rating that is (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, and a 10 percent rating for a 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. Diagnostic Code 5257 also provides for patellar instability with a 30 percent rating 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, a 20 percent rating 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, and a 10 percent rating 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. Note (1) of the rating provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note 2 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). Turning to the evidence, an August 2017 VA examination reflects a diagnosis of internal derangement of bilateral knees. The Veteran reported that he had symptoms of pain, popping, clicking, and decreased range of motion. He took over the counter pain medication for treatment. A history of surgery was not indicated. The initial range of motion test showed flexion to 90 degrees and extension to 0 degree in the right knee and flexion to 70 degrees and extension to 0 degree in the left knee. Pain was noted in flexion and extension in the left knee. Although estimate of additional loss in range of motion during flareup was not noted, pain was noted to cause functional loss with repeated use over a period of time but the range of motion remained the same with repeated use over a period of time. The Veteran reported increase in pain during a flareup, which resulted in difficulty in long distance ambulation and standing for long periods of time. Instability of station, disturbance of locomotion, and interference with standing were noted for both knees. No ankylosis or meniscus condition was found. Knee stability tests were normal. Occasional use of brace and cane was noted. The Veteran reported that he worked as an instructor and that he had to sit in a chair while lecturing. There was no objective evidence of pain on non-weight bearing and the passive range of motion was the same as active range of motion for both knees. A May 2018 private treatment record reflects the Veteran's complaint of 7-week history of worsening, chronic pain in the right knee. He noticed the exacerbation in pain about two months ago on a cruise. He noted stiffness and decreased range of motion, which was further worsened by exercises, including bending, twisting, and walking and improved with rest. He did not take medication. Effusion was noted with no erythema or warmth. Mildly positive McMurray sign noted. The range of motion was from minus 5 to 115 degrees with good stability. Imaging showed moderate degenerative changes with narrowing of the medial joint space and there was some tilting and subluxation of the patella and Merchant view. An April 2018 MRI scan showed evidence of posterior horn medial meniscal tear at the root. Impression was mild to moderate arthritis and posterior horn medial meniscal tear. A June 2018 private treatment record documents the Veteran's complaint of right knee pain. It further indicated that he had had a shot of cortisones and some therapy for probable meniscal tear of the right knee. The Veteran reported that right knee pain caused difficulty with activities of daily living. He was noted to be ambulating with no assistive devices and his active range of motion of the right knee ranged from 0 to 120 degrees. The clinician noted equivocal McMurray's, but otherwise good stability of the knee. Impression was right knee mild osteoarthritis with probable meniscal tear. An August 2018 private operative report indicates that the Veteran underwent diagnostic arthroscopy with debridement of lateral meniscus of the right knee and debridement of plica and Hoff fat pad. The preoperative diagnosis was medical meniscal tear of the right knee, and the postoperative diagnoses were no medial meniscal tear, lateral meniscal tear, and pathologic plica with involvement of Hoffa fat pad of the right knee. A private treatment record one week after the procedure reflects the Veteran's report that his right knee was feeling much better than it did prior to the surgery and he had been doing his exercises with no complications. Incisions were healing well with sutures intact, and minimal effusion was noted for the right knee. Active range of motion was from 0 to 130 degrees. Impression was status post right knee arthroscopy for debridement and partial lateral meniscectomy. Further improvement was noted in a September 2018 private treatment record. A July 2020 private treatment record reflects a complaint of left knee pain. The Veteran explained that the pain started gradually and had worsened over time and pain and stiffness increased with sitting for long periods of time. He reported having a lot of popping in the knee when walking. He stated that the right knee arthroscopy had helped, but he still had some pain in the right knee. The range of motion was from 5 to 100 degrees. There was no evidence of pelvic instability or gross ligamentous instability. Impression was osteoarthritis of the bilateral knees. He received a Synvisc One injection. An August 2020 VA examination reflects a diagnosis of left knee instability and left knee degenerative arthritis as well as left knee internal derangement. The current symptoms noted were pain, range of motion loss, and popping. Treatment included left knee steroid injections. The Veteran reported having flareups with standing, bending, and sudden movements. He stated that he could not stand or bend for a long period of time. The initial range of motion was from 0 to 85 degrees in each knee. Pain was noted with flexion in both knees. No additional loss in range of motion was found during flareups or with repeated use over a period of time, but pain, fatigue, and weakness were noted to cause functional loss during flareups or with repeated use over a period of time. No ankylosis was found. The medial instability test showed 1+ (0 to 5 mm) in both knees and lateral instability test showed 1+ (0 to 5 mm) in both knees. No meniscal conditions were noted for either knee. Constant use of brace and cane was noted. A July 2020 X-ray of the left knee revealed mild joint spacing narrowing and slight patellar tilt and an August 2018 operative report for the right knee arthroscopy was noted. The examiner stated that the Veteran was unable to perform any job duties requiring kneeling, squatting, climbing, bending, walking for extended periods of time or standing for extended periods of time. There was objective evidence of pain in non-weight bearing and the passive range of motion was found the same as active range of motion for both knees. A February 2021 VA examination reflects a diagnosis of right knee pain, right knee instability, right knee internal derangement, left knee internal derangement, left knee pain. The Veteran reported progressive recurrent knee pain. Treatment noted was motrin and steroid injections. The Veteran reported weekly episodes of flareups, lasting for hours, characterized by dull and sharp pain. They were precipitated by standing or walking and alleviated by rest. The flareups impacted his ability to bear weight and do prolonged standing or walking. The Veteran reported instability to his right knee. The initial range of motion test showed 0 to 110 degrees with pain in extension in the right knee. For the left knee, it showed 0 to 120 degrees with pain in flexion. The decreased range of motion impacted his ability to bear weight and do prolonged standing and walking. No additional loss in the range of motion was noted during flareups or with repeated use over a period of time. No ankylosis was found. The examiner noted that there was recurrent subluxation or persistent instability in the right knee. No assistive device such as cane, walker, crutch, or brace was required with a prescription for either knee. There was no recurrent patella instability or ligament tear in either knee. No meniscal condition was noted for either knee. Constant use of brace and cane for his knees and back was noted. The examiner stated that the Veteran's knee disability impacted his work because it affected his ability to do prolonged weight-bearing, standing, or walking. Joint stability testing showed 1+ in medial instability in both knees. For the following reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for left and right knee disability under Diagnostic Code 5260. During the entire appeal period, the Veteran's left knee had range of motion from 0 to 85 degrees, at worst, and the right knee from 0 to 70 degrees, at worst, even with consideration of reported symptomatology during flareup episodes or with repeated use over a period of time. Thus, the evidence preponderates against finding that the Veteran's knee disability resulted in symptomatology more nearly approximated by limitation of flexion to 30 degrees or worse or limitation of extension to 15 degrees or worse, even with consideration of additional loss due to pain or flareups. Consequently, the Veteran's claim for an evaluation in excess of 10 percent for limitation of motion is not warranted. As for instability, the Board finds that the Veteran has had instability in the right knee since May 31, 2018, as evidenced in the private treatment record on that date. As for the severity of the instability, the evidence preponderates against finding that the knee instability has been worse than "slight" for the entire appeal period. The May 2018 private treatment record notes mildly positive McMurray test, and the August 2020 VA examination reflects "1+" the least severe instability. Additionally, as for the right knee, the evidence indicates that the condition has somewhat improved since the 2018 arthroscopy. Relevant to the February 2021 amendment, the February 2021 examination notes recurrent subluxation or persistent instability in the right knee. However, no ligament tear in the right knee or patella instability was found. Neither the evidence of record supports finding of such conditions. Therefore, under the revised Diagnostic Code 5257, a compensable rating is not warranted. Since, in this case, evaluation under the previous rating criteria provides a better rating for the right knee instability, the Board finds that during the appeal period from May 31, 2018, an initial evaluation of 10 percent, but no higher, for the right knee instability is warranted under the pre-February 2021 criteria. In conclusion, the Veteran's claim for an evaluation in excess of 10 percent for internal derangement of the left and right knee is denied. However, with resolution of reasonable doubt in the Veteran's favor, his claim for an effective date of May 31, 2018 for the grant of service connection for right knee instability is granted, and his claim for an initial evaluation in excess of 10 percent for right knee instability is denied. Lastly, the Board considers whether a separate rating for the Veteran's meniscal tear and debridement of the right knee is warranted under either Diagnostic Code 5258 or 5259. Diagnostic Code 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides for a single 10 percent rating for removal of symptomatic semilunar cartilage. Although meniscal dislocation with frequent episodes of locking and effusion into the joint was not found in the August 2017 VA examination, the May 2018 private treatment record reflects worsening pain about two months prior to the visit, and notes a finding of the MRI scan done on April 28, 2018 for posterior horn medial meniscal tear in the right knee. The clinician noted 1+ for effusion in the right knee. Moreover, the June 2018 private treatment record indicates that the Veteran's right knee was painful, popping, and locked. Subsequently, on August 8, 2018, the Veteran underwent debridement of lateral meniscus. After the surgery, the Veteran noted improvement in the level of pain, though residual pain was still present. Effusion disappeared gradually after the surgery. Based on the above, the Board finds that an evaluation of 20 percent for the dislocated meniscus with locking, pain, and effusion into the joint for the period from April 28, 2018 to August 8, 2018 is warranted under Diagnostic Code 5258. Moreover, after the removal of meniscus, an evaluation of 10 percent for the period after August 8, 2018 is warranted under Diagnostic Code 5259 for persistent, residual symptoms. The Board notes that there are additional knee and leg Diagnostic Codes. However, in this specific case, the service-connected right and left knee symptoms have not either manifested as separately compensable or been attributed to ankylosis or functional equivalent thereof; impairment of the tibia or fibula; or genu recurvatum. Thus, separate or higher ratings under the additional knee Diagnostic Codes 5256, 5262 or 5263 do not merit further consideration. Eye 10. Evaluation in excess of 10 percent for left eye venous stasis retinopathy The Veteran's left eye disability is currently rated under Diagnostic Code 6006. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, Diagnostic Code 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, Diagnostic Code 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Following the General Rating Formula, Note (1) included that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Here, the evidence shows that the Veteran has never had any incapacitating episode under either version of the rating formula during the entire appeal period. Thus, an evaluation higher than 10 percent is not warranted. Moreover, the evidence does not reflect that the Veteran's left eye resulted in any visual impairment. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. The table of Impairment of Central Visual Acuity encompasses Diagnostic Codes 6061-6066. Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75 (c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Id.§ 4.75(d). Here, during the entire appeal period, the Veteran's corrected distance visual acuity remained 20/40 or better in both eyes. See August 2017 and November 2020 VA examinations. Thus, an evaluation in excess of 10 percent for decrease in visual acuity is not warranted. Moreover, the evidence does not indicate that the Veteran's left eye disability resulted in muscle dysfunction such as diplopia or visual field contraction during the entire appeal period. See August 2017 and November 2020 VA examinations. Therefore, an evaluation in excess of 10 percent is not warranted for diplopia or visual field contraction either. The August 2017 VA examination reflects that the Veteran did not have any current symptoms due to the service-connected left eye disability. No treatment was indicated. The November 2020 VA examination reflects additional diagnoses of cataract in the right eye and pseudophakia in the left eye. The Veteran reported that his service-connected venous stasis retinopathy caused blurred vision in low light and eye watering and his cataracts caused blurred vision which was worse at night with light distortion. He reported having cataract surgery in the left eye with current symptoms of light sensitivity. The Veteran also reported that he had at least 1 but less than 3 visits due to cataract surgery in the past 12 months. However, the examiner provided an opinion that the Veteran's cataract and pseudophakia are separate and unrelated to the service-connected left eye disability because they are caused by the Veteran's nonservice-connected diabetes. Both lay and medical evidence does not indicate a finding contrary to this opinion, and the evidence does not reflect any functional impairment due to eye watering. In conclusion, the Board finds that the Veteran's service-connected left eye disability has not resulted in any incapacitating episode as defined by the regulations or in any visual impairment. Therefore, the Veteran's claim for an evaluation in excess of 10 percent for service-connected left eye disability is not warranted. 11. TDIU prior to August 28, 2020 TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38C.F.R. §4.16. The Court has clarified that entitlement to TDIU must be considered for the entire appeal period of any associated rating claim where the Veteran asserts unemployability and claims the highest rating possible. Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). In this case, the Veteran filed increased rating claims for his back and knees in June 2017 and service connection claims for his radiculopathy of bilateral lower extremities in January 2018. The Veteran appealed the AOJ's rating determinations and, during the appeal period for these claims, formally filed the claim of TDIU in January 2021, in which he claimed that he became unemployable due to his service-connected lumbar spine and knees disability as of December 21, 2019. Subsequently, the AOJ granted TDIU effective August 28, 2020. Thus, under Harper, the issue of TDIU prior to August 28, 2020 is still on appeal together with his increased rating claims. From December 21, 2019 to August 28, 2020, the Veteran is service-connected for the following disabilities: right lower extremity radiculopathy of sciatic nerve, 10 percent disabling; right lower extremity radiculopathy of anterior crural/femoral nerve, 10 percent disabling; left knee internal derangement; 10 percent disabling; right knee internal derangement, 10 percent disabling; right knee instability, 10 percent disabling (per this Board decision); removal of meniscus of the right knee, 10 percent disabling (per this Board decision); lumbar disc disease with strain, 20 percent disabling; and left eye venous stasis retinopathy, 10 percent disabling, with combined rating of 60 percent, consisting of 60 percent for orthopedic disabilities (including bilateral factors for radiculopathy and knees) and 10 percent for the left eye disability. 38 C.F.R. § 4.25. When considering the orthopedic disability ratings together, they count as one 60 percent rating for schedular TDIU eligibility purposes under 38 C.F.R. § 4.16 (a)(3) as a single disability affecting the orthopedic system. See Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (38 C.F.R. § 4.16 (a) requires aggregation based on the combined ratings table to determine whether multiple service-connected disabilities "considered as one disability" meet the 60 percent or 40 percent thresholds). Accordingly, the Board finds that the Veteran's combined rating that is in effect during the period on appeal satisfies the schedular criteria under 38C.F.R. §4.16 (a) with a single disability rated at least 60 percent. In analyzing TDIU claims, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The evidence of record indicates that the Veteran obtained 4-year college education. See VA education award documents; January 2021 VA Form 21-8940. Then, after separation from service, the Veteran worked as an instructor at an energy technology company from July 1991 to December 2019. See January 2021 VA Form 21-8940; July 2021 VA Form 21-4192. In his application for TDIU, the Veteran reported that his knee and back pain had affected his ability to perform his work as instructor because he could no longer stand or sit before classes for a prolonged period of time. He further reported that he could not get out of bed on some days due to his back pain, which had caused multiple missed days from work, and this missed work in turn caused his position to be eliminated. Indeed, the medical evidence of record during the appeal period indicates that the condition of his knee and back disabilities, to include radiculopathy of lower extremities, gradually worsened over time. These disabilities initially interfered with his ability to stand or walk for a prolonged period of time (see, e.g., August 2017 lumbar spine and knee examinations, February 2018 lumbar spine examination) and then worsened to the point where his ability to sit for a prolonged period of time was also impacted (see July 2020 private treatment record, reporting increase in pain and stiffness in the knee with sitting for long periods of time). Therefore, the evidence is evenly balanced as to whether his service-connected orthopedic disabilities interfered with his physical ability to conduct occupational activities required for the type of work for which he was trained and gained experience over the years. In light of the diminished physical capacity and the elimination of his position based on missed work due to his physical disabilities, the Board finds, with resolution of reasonable doubt in the Veteran's favor, that he became unable to secure or follow a substantially gainful occupation as of December 21, 2019. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent from January 17, 2018 prior to January 11, 2021 and in excess of 40 percent after January 11, 2021, for right lower extremity radiculopathy of sciatic nerve, to include assignment of effective dates 2. Entitlement to an initial evaluation in excess of 10 percent from January 17, 2018 prior to January 11, 2021 and in excess of 20 percent after January 11, 2021 for right lower extremity radiculopathy of anterior crural/femoral nerve), to include assignment of effective dates 3. Entitlement to an initial evaluation in excess of 40 percent from January 11, 2021, to include assignment of an earlier effective date, for left lower extremity radiculopathy of sciatic nerve 4. Entitlement to an initial evaluation in excess of 20 percent from January 11, 2021, to include assignment of an earlier effective date, for left lower extremity radiculopathy of anterior crural/femoral nerve 5. The evidence of record, to include a May 2021 VA examination, indicates that the symptoms of pain down the bilateral legs and numbness attributable to the sciatic and femoral nerve impairment substantially overlap. 38 C.F.R. § 4.14. The symptoms reported appear to be wholly sensory and the record does not raise the issue of muscle atrophy, paralysis or other functional loss for which the impairment from the femoral and sciatic nerve may be distinguished. As such, the medical evidence of record does not provide sufficient information in order to rate the Veteran's radiculopathy without violating the anti-pyramiding principle under 38 C.F.R. § 4.14. Therefore, upon remand, the AOJ must schedule a new VA examination and obtain an opinion addressing whether symptoms due to sciatic nerve impairment can be distinguished from those of femoral nerve impairment for the entire appeal period. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, after reviewing the entire evidence in the claims file, to include private treatment records submitted by the Veteran, the examiner must identify all symptoms due to his service-connected radiculopathy and provide an opinion as to whether each of these symptoms can be attributed to sciatic nerve impairment or femoral nerve impairment. If both nerves cause an identical symptom and the source of the symptom cannot be distinguished, the examiner must state so explicitly. 2. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, corrective procedures should be implemented. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.