Citation Nr: 21073761 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 14-08 521 DATE: December 10, 2021 ORDER Entitlement to a rating in excess of 30 percent for a right knee replacement prior to March 15, 2010; a rating in excess of 60 percent from March 15, 2010, to March 6, 2011, from May 1, 2012, to August 9, 2015, and as of October 1, 2016, is denied. Entitlement to a rating in excess of 20 percent for a low back disability prior to October 21, 2020, and in excess of 40 percent as of October 21, 2020, is denied. Entitlement to a separate rating of 20 percent, but not higher, for right lower extremity radiculopathy as of October 21, 2020, but not earlier, is granted. FINDINGS OF FACT 1. Prior to March 15, 2010, a service-connected right total knee replacement was not manifested by chronic residuals consisting of severe painful motion and weakness and did not warrant a rating by analogy under Diagnostic Codes 5256, 5260, 5261 or 5262. 2. As of March 15, 2010, a service-connected right total knee replacement has been manifested by chronic residuals consisting of severe painful motion and weakness in the lower extremity described as pain, weakness, stiffness, limitation in movement with walking, inability to kneel, and difficulty climbing stairs. 3. Prior to October 21, 2020, a low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 4. As of October 21, 2020, the Veteran's a low back has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, with no evidence of ankylosis of the entire thoracolumbar spine. 5. As of October 21, 2020, but not earlier, the Veteran has had moderate symptoms of right lower extremity sciatic nerve impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for status post total right knee replacement prior to March 15, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 5055. 2. The criteria for entitlement to a rating in excess of 60 percent for status post total right knee replacement from March 15, 2010, to March 6, 2011, from May 1, 2012, to August 9, 2015, and as of October 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 5055. 3. The criteria for a rating in excess of 20 percent prior to October 21, 2020, and in excess of 40 percent as of October 21, 2020, for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a separate rating of 20 percent, but not higher, for right lower extremity radiculopathy have been met as of October 20, 2020, but not earlier. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1976 to December 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Chicago, Illinois, and Lincoln, Nebraska. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to increased ratings for a right knee disability The Veteran contends that he is entitled to higher ratings because he experiences painful motion and weakness in the right knee. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of disability that is temporary in nature, such as that period of convalescence following surgery, the governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. The Veteran has been assigned some periods of temporary total rating for convalescence and since a 100 percent rating is assigned for those periods, the Board will not consider entitlement to a higher rating for those periods as the maximum rating is assigned. 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. 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." 85 Fed. Reg. 230 (Nov. 30, 2020). 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). I f 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. Therefore, the Board will consider the claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria as of February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. As of February 7, 2021, under the revised VA regulations governing musculoskeletal disabilities under 38 C.F.R. § 4.71a, the following criteria apply to rating prosthetic implants and resurfacing. When a rating is assigned for joint resurfacing or the prosthetic replacement of a joint under Diagnostic Codes 5051 to5056, an additional rating under 38 C.F.R. § 4.71a may not also be assigned for that joint, unless otherwise directed. The rater shall only rate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced. The term "prosthetic replacement" in Diagnostic Codes 5051 to 5053 and 5055 to 5056 means a total replacement of the named joint. However, in Diagnostic Code 5054, "prosthetic replacement" means a total replacement of the head of the femur or of the acetabulum. The 100 percent rating for one year following implantation of prosthesis will commence after initial grant of the one month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. The 100 percent rating for four months following implantation of prosthesis or resurfacing under Diagnostic Codes 5054 and 5055 will commence after initial grant of the one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. 38 C.F.R. § 4.71a. Under the revised VA regulations, 38 C.F.R. § 4.71a , DC 5055 provides a 100 percent rating for four months following implantation of prosthesis or resurfacing. A 60 percent rating is warranted for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity or with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to diagnostic codes 5256, 5261, or 5262. A 30 percent rating is the minimum rating, for total replacement only. At the conclusion of the 100 percent rating period, the rater will rerate resurfacing under diagnostic codes 5256 through 5256. There is no minimum rating for resurfacing. The inability to return to any employment shows a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. (1998). VA treatment records dated from May 2001 through August 2019 indicate the right knee, status post total knee arthroplasty with marked instability of the anterior and medial joint and chronic pain and loss of motion. Prior to March 15, 2010 At a March 2009 VA examination, the examiner noted the Veteran had a slow walk with a limp, favoring the right leg. The examiner also noted that the Veteran had to support himself with the arm of the chair to rise from a sitting position. There was no evidence of callus, skin break down, or unusual shoe wear pattern. Flexion was from 0 to 70 degrees, with pain at 70 degrees. Extension was to 0 degrees with no pain. There was evidence of some instability on the medial aspect of the knee. The Drawer sign and Lachman's test were normal. The McMurray's test was negative. There was no evidence of fatigue, weakness, lack of endurance or incoordination. There was no functional loss due to painful joint motion or weakness, or increased fatigue of incoordination resulting from sustained or repetitive use. There was no evidence of ankylosis, inflammatory arthritis, edema, effusion, weakness, redness or heat, or abnormal or guarding of movement. The examiner noted slight tenderness on the lateral surface of the right knee. X-rays showed post-operative surgical changes involving the distal right femur, the articular surface the distal right femur, the articular surfaces of the posterior right patella and the proximal right tibia. A metallic pin was noted within the distal right femur. The diagnosis was torn right ACL of the right knee, status post repair. During a May 2009 private treatment visit, the Veteran reported that he ambulated independently, but there was a slight limp when he first arose that improved with progressive ambulation. The incision was well healed with no evidence of infection. There was no significant effusion. He maintained good range of motion, including full extension, and there was good patellar tracking and soft tissue balancing. There was diffuse peripatellar discomfort to palpation on examination. Based on the symptoms discussed above, the Board finds that, for the period prior to March 15, 2010, the right knee disability symptoms more closely approximated the criteria for a rating of 30 percent under the old and the revised criteria for Diagnostic Code 5055. More specifically, the Board finds that the evidence does not show severe painful motion or weakness in the affected extremity. When attempting to rate by analogy to diagnostic codes 5256, 5260, 5261, or 5262, there was no evidence of ankylosis, no extension limited to 45 degrees, and no impairment of the tibia or fibula. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. Esteban v. Brown, 6 Vet. App. 259 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017); 38 C.F.R. § 4.14. In reaching that conclusion, the Board has assigned considerable probative value to the functional impairment noted in the VA examinations. The examinations consistently showed no evidence of fatigue, weakness, lack of endurance, or incoordination. There was no functional loss due to painful joint motion or weakness, or increased fatigue of incoordination resulting from sustained or repetitive use. The Veteran reported with a slight limp at one examination, but still exhibited a good range of motion and did not show severe painful motion or weakness. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the right knee disability had chronic residuals that manifested as severe painful motion and stiffness in the affected extremity prior to March 15, 2010. Therefore, the Board finds a rating in excess of 30 percent disability rating under Diagnostic Code 5055, was not warranted prior to March 15, 2010. From March 15, 2010, to March 6, 2011, from May 1, 2012, to August 9, 2015, and as of October 1, 2016 In a June 2010 VA examination, the Veteran reported undergoing a second procedure due to a recall of the previous prosthesis from the manufacturer 18 months after the total knee replacement. He reported that following that replacement, the knee became gradually and progressively more unstable. It remained swollen and he believed he lost some range of motion that he previously had in the knee. The pain was worsened by prolonged standing or weight-bearing for more than two hours. He experienced difficulty with clothing himself and regular daily activities. There was no tenderness to palpation over any of the joint areas of the right knee. There was moderate crepitation of the patella, but normal tracking. The Veteran reported that he had the natural patella and did not receive a prosthetic patella on either of the previous knee replacement surgeries. There was marked instability with 1+ anterior drawer laxity, 2+ laxity of the medial collateral ligament, and minimal laxity of the lateral collateral ligament. Range of motion of the right knee was 0 degrees extension to 94 degrees of active and passive flexion which was limited by pain. However, there was no evidence of further limitation due to pain, weakness, stiffness, or fatigability on repetitive motion testing of the right knee. A March 2011 medical treatment record indicates that the Veteran received a revision to the right knee total knee arthroplasty. An incomplete medical record received in March 2011 in the evidence file indicates that the Veteran was unable to perform job functions of standing, walking, climbing, and kneeling. In an April 2011 private treatment record, Dr. R.B. noted that the Veteran's right knee exhibited a full range of motion for extension and flexion to 105 degrees following the March 2011 revision. The incision was marked as well healed. In June 2011, Dr. R.B. noted that incision was well healed with a full range of motion for extension and flexion to 115 degrees. In a May 2011 physical therapy consult, the physician noted the Veteran experienced problems with standing still, walking 10 to 15 minutes, fatigue, and pain of between 3 and 5 on a scale of 1 to 10. In a December 2013 nursing outpatient note, the Veteran still reported burning, aching, and numbness in the right knee. In an October 2013 VA examination, the examiner noted residuals of a right total knee replacement, right knee cruciate ligament injury or tear, and bilateral osteoarthrosis. The Veteran reported flare-ups of the knee and chronic pain with pain at a 7 on a scale of 1 to 10. The Veteran reported taking pain killers to help alleviate right knee pain. Initial range of motion measured a flexion to 85 degrees and an extension of 0 degree with no objective evidence of painful motion. The Veteran exhibited the same range of motion following repetitive use testing. After repetitive use, the Veteran experienced functional loss including less movement than normal, weakened movement, and atrophy of disuse. No tenderness or pain on palpation of the right knee was noted on examination. During muscle strength testing, the right knee exhibited active movement against some resistance with flexion and normal strength with extension. Joint stability testing found a normal posterior instability, 1+ anterior instability, and 1+ medial lateral instability of the right knee. There was no evidence of recurrent patellar subluxation or dislocation on examination. As a result of the knee replacement, the Veteran was noted to experience intermediate degrees of residual weakness, pain, or limitation of motion. A March 2014 medical treatment record indicated a diagnosis of residuals of right total knee arthroplasty with instability, status post previous anterior cruciate ligament reconstruction surgery times two. The Veteran underwent a revision right knee total arthroplasty in August 2015 and was assigned another temporary 100 percent rating for 13 months. In a March 2020 VA examination, imaging of the right knee was performed. Findings included a right total knee arthroplasty with components in satisfactory alignment and position with no evidence of fracture or prosthetic loosening; and mild knee effusion. The impression was satisfactory postoperative alignment and appearance of the right total knee arthroplasty and no acute abnormality. In a June 2021 VA examination, the examiner noted a 2021 right knee meniscal tear, and a 2004 and 2018 right knee anterior cruciate ligament tear. The examiner also noted that 2002, 2004, and 2018 status post right total knee arthroplasty and 2021 residuals right knee anterior cruciate ligament reconstruction with left patella tendon bone graft. Current symptoms of the right knee included continual pain, swelling, stiffness, weakness, weekly flare-ups that lasted for a day, and severe limited mobility. Functional loss included an inability to ambulate without pain. A history of frequent effusion was noted due to the surgical repair. Initial range of motion for the right knee measured flexion to 70 degrees and extension to 0 degrees with pain on flexion. There was no additional loss of motion following repetitive use testing. Estimated range of motion following repetitive use over time is a flexion to 50 degrees and an extension to 0 degrees. At the June 2021 VA examination, pain was noted on weight-bearing, active motion, passive motion, and causes functional loss. There was an inability to flex the knee to facilitate normal movement, evidence of crepitus, and dull pain on lateral and medial mid knee. Pain was reported as a 4 on a scale of 1 to 10. Estimated range of motion during reported flare-ups was flexion to 55 degrees and extension to 0 degrees. There was no muscle atrophy, ankylosis, recurrent subluxation, persistent instability, ligament tear, patellar dislocation, shin splint, or recurrent patellar instability. The examiner noted a history of right knee meniscal tear that was removed with the right knee replacements with no current symptoms. No use of assistive devices was noted on examination. The examiner found that there was no such level of disability that the Veteran would be equally well served with amputation and the use of a prosthesis. Based on the symptoms discussed above, the Board finds that from March 15, 2010, to March 6, 2011, from May 1, 2012, to August 9, 2015, and as of October 1, 2016, the right knee disability symptoms more nearly approximated the criteria for a rating of 60 percent under the old and the revised criteria for Diagnostic Code 5055. More specifically, the Board finds that the evidence shows the functional equivalent of chronic severe painful motion, but does not show loss of use of the extremity such that the Veteran would be equally well served with amputation and prosthesis. In reaching this conclusion, considerable probative value is assigned to the degree of pain and functional impairment noted in the VA examinations. The June 2010, October 2013, March 2020, and June 2021 VA clinicians specifically noted that the residuals of the right total knee replacement were noted as intermediate degrees of residual weakness, pain, or limitation of motion. However, it was also indicated that the right knee disability was manifested by weakness, instability, an inability to stand or walk for an extended period of time, climb, or kneel, with shooting pain, and limited range of motion. At the June 2021 VA examination, the examiner noted the Veteran's inability to flex the right knee to facilitate normal movement. Those symptoms are evidence that the Veteran has chronic residuals consisting of severe painful motion or weakness in his right knee. Based on the symptoms discussed above, the Board finds that the right knee disability symptoms more closely approximated the criteria for a rating of 60 percent. Having found the Veteran is entitled to a rating of 60 percent for the period since March 15, 2010, the Board need not consider whether higher or separate ratings are warranted; as Diagnostic Code 5055 in VA's rating schedule pertains specifically to ratings of total knee replacement disabilities, the Veteran's disability will not be rated by analogy to any of the other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333 (2015). Even if it were possible to rate by analogy, the right knee disability would remain at 60 percent under the pre- and post- February 7, 2021, regulation update. Other than the assignment of a temporary 100 percent rating for one year following the total knee replacement, a 60 percent rating is the highest rating that can be assigned pursuant to the Diagnostic Codes applicable to the evaluation of knee and leg disabilities prior to or since February 7, 2021. The Board further finds that the evidence does not show loss of use of the extremity such that the Veteran would be equally well served by amputation with prosthesis. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating and the claim for higher or separate rating must be denied. 2. Entitlement to increased ratings for a low back disability The Veteran contends that he is entitled to higher ratings for a low back disability as the symptoms are worse than contemplated by the currently assigned ratings. More specifically, the Veteran asserts ongoing pain and limitation of motion as a result of degenerative arthritis. The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1. When rating musculoskeletal disabilities based on limitation of motion, the Rating Schedule requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. The Rating Schedule also requires consideration be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the other limiting factors are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. 38 C.F.R. § 4.71a; Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Painful motion is a factor to be considered with any form of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to October 21, 2020 In an April 2002 statement, the Veteran asserted that his lower back should be rated as more than arthritis alone due to having the back "pop out" and an inability to put it back by manual manipulation. He asserted that the condition limited the ability to perform certain jobs due to lifting restrictions. In a June 2008 radiology report, the clinical history noted back pain four days a week. Imaging found multilevel disc space narrowing and degenerative change with mild old compression deformities of L1 through L3. In a June 2009 VA examination, the examiner highlighted that x-ray findings beginning in August 2000 showed degenerative changes and no scoliosis. It was noted the films were supine. 2008 x-rays showed mild dextroscoliosis, meaning the convexity of the scoliosis was to the right. There was a very slight scoliosis that was slight curvature less than 5 degrees with no rotational component. A March 2009 x-ray found no subluxation or curvature abnormality and no scoliosis. The examiner concluded that a review of these three x-rays did not show scoliosis and that there was no lumbar muscle spasm, with normal lumbar lordosis. In an August 2010 VA examination, the examiner noted that the Veteran walked with a mild limp favoring the right side. No assistive devices were used. Muscle strength was normal. Flexion was to 45 degrees and extension was to 16 degrees. Left side bending was 18 degrees and right-side bending was 25 degrees. Left rotation was 35 degrees and right rotation was 45 degrees. Repetitive testing resulted in similar objective values. The endpoints of the range of motion testing were painful. Repetitive testing did not find increase in pain, lack of endurance, or any increased fatigability or restriction noted. A July 2011 medical treatment record noted multilevel spondylosis, degenerative disc disease, protruded disc, and spinal stenosis. An October 2011 medical treatment record noted spondylosis. An October 2011 private treatment record also noted lumbar radiculopathy. In an October 2013 VA examination, the Veteran reported flare-ups that impacted the function of the low back. The Veteran used medication to reduce pain. The initial range of motion measured forward flexion of 90 degrees or greater with painful motion beginning at 90 degrees or greater; extension of 20 degrees with painful motion beginning at 20 degrees; right lateral flexion ended at 30 degrees or greater with no objective evidence of painful motion; left lateral flexion ended at 30 degrees or greater with no objective evidence of painful motion; right lateral rotation ended at 30 degrees or greater with no objective evidence of painful motion; and left lateral rotation ended at 30 degrees with no objective evidence of painful motion. There was no change in range of motion following repetitive use testing. Functional loss of the lower back included less movement than usual and pain on movement. The examiner noted localized tenderness or pain to palpation of the joints described as "TTP paraspinous muscles." No guarding or muscle spasm of the thoracolumbar spine was found. Muscle strength testing was normal, with no muscle atrophy. The examiner found there was no radiculopathy on examination. The examiner noted intervertebral disc syndrome (IVDS) with no incapacitating episodes over the past 12 months. In a February 2014 statement, the Veteran asserted that his back was worse than contemplated by the previous examination because of the issues it caused with daily activities as a result of pain and flare-ups. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a low back disability prior to October 21, 2020. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due pain, weakened movement, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he walks with a limp and experiences less movement than usual would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. VA examiners further noted that repetitive testing did not show increase in pain, lack of endurance, any increased fatigability or restriction noted. The Board acknowledges the assertion that the Veteran's symptoms during a flare-up are like ankylosis with the assertion that the back "pops out". However, even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate fixation of a spinal segment in neutral position, or limitation of flexion to 30 degrees of less. The Veteran has reported that he did not require assistive devices and did not report immobility. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for a low back disability prior to October 21, 2020. Therefore, the claim for increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As of October 21, 2020 In an October 2020 VA examination, the examiner noted degenerative arthritis and IVDS. The Veteran reported flare-ups that occurred every two months, described as severe lasting three to seven days which were usually resolved by a trip to the emergency room. The initial range of motion measured forward flexion to 50 degrees; extension to 15 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. The Veteran was unable to bend over to reach the floor, twist, or lean. Pain was noted on rest, non-movement, and with weight-bearing. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Following repetitive use testing, the Veteran's range of motion measured forward flexion to 40 degrees, all other ranges of motion remained unchanged. Factors that caused functional loss were pain and fatigue. Range of motion during a flare up was forward flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 5 degrees; left lateral flexion to 5 degrees; right lateral rotation to 5 degrees; and left lateral rotation to 5 degrees. The examiner noted guarding that resulted in an abnormal gait or abnormal spine contour. There was no muscle atrophy on examination. Radicular pain included moderate intermittent pain of the right lower extremity and moderate paresthesias and/or dysesthesias of the right lower extremity. There was no ankylosis of the spine on examination. The Veteran's IVDS was noted as causing episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months based on the Veteran's reports and not supporting documentation. The Veteran reported requiring the use of a brace on an occasional basis. In an April 2021 VA examination, the examiner noted the diagnoses of degenerative arthritis, IVDS, spinal stenosis, and right lower extremity radiculopathy. The Veteran reported flare-ups that occurred every three months lasting three to five days with characteristics that included sharp radiating pain to the right lower extremity and a severity of an 8 on a scale of 1 to 10. The Veteran stated that he treated the flare-ups with heat, ice, and pain relievers. Flare-ups caused functional limited mobility including an inability to bend or twist. Initial range of motion measured forward flexion to 35 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 25 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 25 degrees. The Veteran exhibited pain in all ranges of motion. Passive range of motion testing returned the same measurements. There was evidence of pain with weight-bearing, active motion, passive motion that causes functional loss. At the April 2021 VA examination, there was no evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue during the examination. There was no additional loss of function or range of motion following repetitive use testing. The Veteran was not tested following repeated use over time and did not show evidence the suggest pain, fatigability, weakness, lack of endurance, or incoordination. The examination occurred during a flare-up with fatigability, weakness, lack of endurance, and pain contributing to functional loss. There was no change to the previous range of motion measurements. There was guarding on examination that did not result in an abnormal gait or abnormal spinal contour. There was no muscle atrophy or ankylosis on examination. There was radiculopathy on the examination showing mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. Symptoms included right lower extremity sharp pain originating in the lower right back. IVDS was noted but did not result in episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment in the past 12 months. The Veteran did not report using any assistive devices. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for a low back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that regular severe flare-ups that impacted the ability to bend and twist would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Prior to February 7, 2021, the Formula for Rating IVDS Based on Incapacitating Episodes provided that a 10 percent rating was warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating was warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating was warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note 1. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. 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). 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The October 2020 VA examiner noted that IVDS caused episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. However, the examiner stated that this was based solely on the Veteran's reports and not supported by medical evidence. The April 2021 VA examiner noted that IVDS did not result in episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment in the past 12 months. Based on the foregoing, the Veteran's IVDS would warrant a 10 percent rating, which is less than the rating currently assigned for the low back disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a low back disability. And any claim for a rating higher than 40 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board notes that April 2021 VA examiner noted that the Veteran had radiculopathy of the right lower extremity. Paralysis of the sciatic nerve is rated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis and neuralgia of that nerve are rated under Diagnostic Codes 8620 and 8720. Under those criteria, mild incomplete paralysis is rated 10 percent. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent. Severe incomplete paralysis, with marked muscular atrophy is rated 60 percent. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost is rated 80 percent. 38 C.F.R § 4.124a. The words mild, moderate, and severe as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The October 2020 VA examiner noted moderate radiculopathy and the April 2021 VA examiner noted mild radiculopathy of the right lower extremity. The VA examiners have noted that radiculopathy of the right lower extremity is related to the low back disability. Therefore, and resolving reasonable doubt in favor of the Veteran, a separate 20 percent rating for radiculopathy of the right lower extremity is warranted as of October 21, 2020, but not earlier. The Board finds that the evidence prior to October 21, 2020, does not support a finding or right lower extremity radiculopathy. In addition, the Board finds that the evidence of record does not support a finding of greater than moderate incomplete paralysis of the sciatic nerve. The Board also finds that the evidence does not support the presence of any other neurologic disability as a result of the low back disability which could be assigned any additional separate rating. Accordingly, the Board finds that the criteria for the assignment of a separate 20 percent rating, but not higher, for right lower extremity radiculopathy were met as of October 21, 2020, but not earlier. The preponderance of the evidence is against the assignment of any higher rating for right lower extremity radiculopathy, or any other separate ratings. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.