Citation Nr: 21075134 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 10-04 367A DATE: December 17, 2021 ORDER A rating in excess of 10 percent prior to July 26, 2021, and a rating in excess of 20 percent from July 21, 2021, for left knee patellofemoral pain syndrome due to limitation of motion is denied. A rating in excess of 10 percent prior to July 26, 2021, and a rating in excess of 20 percent from July 21, 2021, for right knee patellofemoral pain syndrome due to limitation of motion is denied. A rating in excess of 10 percent left knee patellofemoral pain syndrome due to instability is denied. A rating in excess of 10 percent right knee patellofemoral pain syndrome due to instability is denied. A rating in excess of 40 percent prior to April 1, 2009, in excess of 20 percent from April 1, 2009, through April 9, 2012, and in excess of 40 percent from August 10, 2012, for degenerative disc disease of the lumbar spine with intervertebral disc disease is denied. FINDINGS OF FACT 1. Prior to July 26, 2021, the Veteran's service-connected left knee disability was manifested by pain and limitation of flexion to no worse than 90 degrees, even when considering additional functional loss, and without limitation of extension, ankylosis, or instability. 2. Prior to July 26, 2021, the Veteran's service-connected right knee disability was manifested by pain and limitation of flexion to no worse than 90 degrees, even when considering additional functional loss, and without limitation of extension, ankylosis, or instability. 3. Beginning July 26, 2021, the Veteran's service-connected left knee disability has been manifested by pain and limitation of flexion to no worse than 30 degrees, even when considering additional functional loss, and without limitation of extension or ankylosis. 4. Beginning July 26, 2021, the Veteran's service-connected right knee disability has been manifested by pain and limitation of flexion to no worse than 30 degrees, even when considering additional functional loss, and without limitation of extension or ankylosis. 5. Beginning July 26, 2021, the Veteran's service-connected left knee disability has been manifested by instability productive of more than slight impairment. 6. Beginning July 26, 2021, the Veteran's service-connected right knee disability has been manifested by instability productive of more than slight impairment. 7. Prior to April 1, 2009, the Veteran's service-connected degenerative disc disease of the lumbar spine with intervertebral disc disease was not manifested by ankylosis or the functional equivalent of ankylosis, incapacitating episodes, or neurologic abnormalities. 8. From April 1, 2009, through August 9, 2012, the Veteran's service-connected degenerative disc disease of the lumbar spine with intervertebral disc disease was not manifested by flexion limited to 30 degrees or less, ankylosis or the functional equivalent of ankylosis, incapacitating episodes, or bowel/bladder abnormalities. 9. Beginning August 10, 2012, the Veteran's service-connected degenerative disc disease of the lumbar spine with intervertebral disc disease has not been manifested by ankylosis or the functional equivalent of ankylosis, incapacitating episodes, or bowel/bladder abnormalities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to July 26, 2021, and a rating in excess of 20 percent from July 21, 2021, for left knee patellofemoral pain syndrome due to limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent prior to July 26, 2021, and a rating in excess of 20 percent from July 21, 2021, for right knee patellofemoral pain syndrome due to limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for a rating in excess of 10 percent left knee patellofemoral pain syndrome due to instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome due to instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating in excess of 40 percent prior to April 1, 2009, in excess of 20 percent from April 1, 2009, through April 9, 2012, and in excess of 40 percent from August 10, 2012, for degenerative disc disease of the lumbar spine with intervertebral disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to July 1998. The Veteran testified at hearings before the undersigned Veterans Law Judge in October 2019 and December 2020. These matters were most recently before the Board in April 2021 when they were remanded for additional development. Increased Ratings Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under section 4.40 or section 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Left Knee and Right Knee Patellofemoral Pain Syndrome The Veteran's claim for an increased rating was received in June 2008. At that time, his service-connected right and left knee disabilities were assigned 10 percent ratings (each) for patellofemoral pain syndrome of each knee. Full range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a , Diagnostic Code 5003, for degenerative arthritis, allows for a 10 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups; or a 20 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. Id. Diagnostic Code 5260 provides a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion of the leg is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. Id. Diagnostic Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage (synonymous with the meniscus). A 10 percent rating is assigned for removal of the meniscus that is symptomatic. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. Id. Effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The periods relevant to this decision are prior to and after the February 7, 2021, amendments. The revisions to the regulations have a limited impact in that they have only been in effect since February 7, 2021. Diagnostic Codes 5258, 5259, 5260 and 5261 were not changed by the February 7, 2021, amendments. Effective February 7, 2021, Diagnostic Code 5003 was revised only insofar as it was renamed to make clear that this diagnostic code only applies to degenerative arthritis. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , Diagnostic Code 5003). The revisions to the regulations do change how instability and subluxation of the knee are rated. That is, the descriptor terms of slight, moderate, and severe have been removed, and replaced with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability, or from patellar instability. Regarding recurrent subluxation or lateral instability, a 10 percent rating is assigned 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. A 20 percent rating is assigned with one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note 1 provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 provides 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). 85 Fed. Reg. 76453, 76463. A claimant who has limitation of motion and instability of a knee, may be rated separately under Diagnostic Codes 5260 and 5257. Any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). Separate ratings under Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same knee; however, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004). The objective findings for the right knee and left knee disabilities are identical throughout the period of the appeal; therefore, they will be discussed together below. Prior to July 26, 2021 For the period from June 27, 2008, through July 25, 2021, the Veteran's service-connected right and left knee disabilities were each rated 10 percent disability under Diagnostic Code 5260 for limitation of flexion. An October 2008 VA examination report notes the Veteran's complaints of knee pain which caused difficulty in prolonged standing and walking, walking up and down steps, climbing, and squatting. He denied flare-ups. On examination, range of motion of both knees was from 0 degrees extension to 140 degrees flexion, with mild pain beginning at 130 degrees. Repetitive use testing did not change these findings. The examiner stated pain, weakness, fatigability, and lack of endurance would not limit functional ability. Examination revealed no instability, crepitus, or swelling. Drawer sign and McMurray's sign were negative. An April 2011 VA examination report notes the Veteran's complaints of moderate, intermittent bilateral knee pain, stiffness and weakness. He reported difficulty standing for more than 15 minutes, walking more than 10 minutes, taking the stairs, and squatting due to knee pain. He denied flare-ups. Gait was moderately antalgic. The Veteran claimed he used knee braces; however, he did not have them at the time of examination. He denied the use of walkers, crutches, wheelchairs, or canes. On examination, active and passive range of motion was from 0 degrees extension to 110 degrees flexion bilaterally. Repetitive use testing did not change these findings. There was moderate weakness and moderate stiffness bilaterally. Examination revealed no instability, giving way, subluxation, crepitus, deformity, heat, redness, or swelling. Drawer sign and McMurray's sign were negative. The examiner noted that July 2005 X-ray studies showed arthritis of both knees. An August 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) notes the Veteran's history of bilateral retropatellofemoral syndrome without any history of surgery. He complained of daily 8/10 pain in both knees without changes on weight bearing. He said he normally wore braces; however, he was not wearing them at the examination. He stated he climbs one flight of stairs a day slowly. He reported his knees gave way three times a week without serious injury. He also reported swelling at the end of a day when he engaged in physical activity. He denied flare-ups. On examination, active range of motion was from 0 degrees extension (with no pain) to 90 degrees of flexion (with pain beginning at 20 degrees) bilaterally. The Veteran declined passive range of motion and repetitive use testing due to pain. However, the examiner stated, he observed the Veteran flexing both his knees to 90 degrees sitting and extending to 0 degrees standing. Muscle strength was 4/5. The Veteran declined joint stability tests. He reported regular use of a cane. The examiner noted that June 2012 VA X-ray studies showed early degenerative changes in both knees. The examiner opined the Veteran's knee disabilities would not impact his ability to work. The examiner also opined "[t]he subjective report of pain and limitation of motion as well as the history of constant pain unchanged with position are out of proportion to the [X]-ray findings of mild degenerative joint disease." September 2014 VA X-ray studies showed mild arthritis in the knees. An August 2018 VA outpatient treatment record shows that both knees were tender to palpation. However, range of motion was normal; there was no edema, crepitus, or pain on motion. A January 2020 VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of limited range of motion in the knees without pain, weakness, and instability. He reported flare-ups of severe pain two to four times per week, lasting from 30 minutes to a few days, and precipitated by walking, sitting for long periods, climbing stairs, and sex. On examination, active range of motion was from 0 degrees extension (with pain) to 90 degrees of flexion (with pain) bilaterally. There was no pain on passive range of motion testing, or on non-weight bearing testing bilaterally. Repetitive use testing did not result in any additional loss of motion. There was no crepitus, effusion, or ankylosis. Muscle strength was 5/5; no muscle atrophy was shown. There was no history of recurrent subluxation or lateral instability. Joint stability testing was not conducted due to the Veteran's pain response. He reported regular use of a cane (for his knees and back) and knee braces. The examiner noted that June 2012 VA X-ray studies showed early degenerative changes in both knees. The examiner opined the Veteran's knee pain would cause difficulty with running, squatting, and walking more than 20 yards without assistive devices. A February 2021 VA physical therapy consult notes the Veteran had no gait abnormalities and declined the use of assistive devices. Range of motion of both lower extremities was WFL (within functional limits). Knee extension strength was 5/5 bilaterally. Additional treatment records for this period do not reflect symptomatology worse than on the VA examinations discussed above. For the period prior to July 26, 2021, a rating in excess of 10 percent would not be warranted under Diagnostic Code 5260 for either of the Veteran's knees because while he has repeatedly complained of chronic knee pain, the limitation of motion findings for flexion recorded in the VA examination reports (at worst, 90 degrees) and treatment records do not meet the requirements for the next higher rating under Diagnostic Code 5260, even considering related functional impairment. (The Board acknowledges the single finding of flexion limited by pain to 20 degrees bilaterally in August 2013; however, the examiner also stated the Veteran's pain complaints were out of proportion to the severity of the knee disabilities. Moreover, he was observed to sit with his knees in 90 degrees flexion for the exam.) A preponderance of the evidence is against the assignment of any higher rating for limitation of flexion for either knee; hence, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board has considered whether a separate rating is warranted for limitation of extension for the period prior to July 26, 2021, under Diagnostic Code 5261. As noted above, however, the preponderance of the evidence does not warrant a separate compensable rating for limitation of extension of either knee. In this regard, the evidence shows full extension of both knees without pain. Likewise, no objective findings of instability were shown on examination. Therefore, a separate rating for instability under Diagnostic Code 5257 is not warranted for either knee. From July 26, 2021 A July 26, 2021 VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of almost daily pain in his knees. He reported flare-ups of moderate to severe pain almost daily in both knees, precipitated by walking, sitting, laying, driving, and stairs. He also reported episodes of giving out, locking, and dislocation. He denied any history of surgery. On examination, active range of motion was from 0 degrees extension (with pain) to 40 degrees of flexion (with pain at 30 degrees) bilaterally. Passive range of motion testing was not performed due to the Veteran's complaints of pain. There was pain on weight bearing and non-weight bearing testing bilaterally which caused impaired mobility. The Veteran declined repetitive use testing due to severe pain. The examiner estimated that with repeated use over time, pain, fatigability and lack of endurance would limit range of motion to 0 degrees extension and 30 degrees flexion bilaterally. The examiner further estimated that during flare-ups, pain, fatigability, weakness, and lack of endurance would limit range of motion to 0 degrees extension and 30 degrees flexion bilaterally. Examination showed no crepitus or ankylosis. No muscle atrophy was shown. The examiner noted a history of recurrent subluxation or persistent instability, as well as incomplete/partial ligament tears bilaterally. (This was not confirmed by imaging studies.) Subluxation was characterized by the examiner as slight. Joint stability testing was not conducted due to the Veteran's pain response. The examiner stated the Veteran required a prescription of a cane and knee braces for ambulation. Treatment records for this period do not reflect symptomatology worse than on the VA examinations discussed above. For the period beginning July 26, 2021, a rating in excess of 20 percent would not be warranted under Diagnostic Code 5260 for either of the Veteran's knees because while he has repeatedly complained of chronic knee pain, the limitation of motion findings for flexion recorded in the July 2021 VA examination report (30 degrees) and treatment records do not meet the requirements for the next higher rating under Diagnostic Code 5260, even considering related functional impairment. A preponderance of the evidence is against the assignment of any higher rating for limitation of flexion for either knee; hence, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Moreover, for the period beginning July 26, 2021, a rating in excess of 10 percent would not be warranted under Diagnostic Code 5257 in effect prior to February 7, 2021, for either of the Veteran's knees. The Veteran has reported instability. However, while objective testing has been limited, such testing shows no more than mild instability. Although the Veteran has reported the use of a cane and braces, none of the medical evidence for the period is shown to demonstrate disability that is productive of moderate impairment (recurrent subluxation or lateral instability) for the period. Overall, the Board finds that the weight of the evidence does not demonstrate findings consistent with moderate recurrent subluxation or lateral instability in either knee that would warrant the award of 20 percent ratings under Diagnostic Code 5257 in effect prior to February 7, 2021. Beginning February 7, 2021, a rating in excess of 10 percent is not warranted for either knee instability under the revised rating criteria that became effective from that date. Although the July 2021 VA examiner stated the Veteran has bilateral incomplete ligament tears and that a medical provider had prescribed braces and a cane for ambulation, the Veteran's treatment records do not support these findings. There are no imaging studies that show incomplete ligament tears, repaired complete ligament tears, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Thus, the Board finds that a rating in excess of 10 percent is not warranted for either knee under the revised Diagnostic Code 5257 that became effective February 7, 2021. In addition, the Board has considered whether a separate rating is warranted for limitation of extension for the period beginning July 26, 2021, under Diagnostic Code 5261. As noted above, however, the preponderance of the evidence does not warrant a separate compensable rating for limitation of extension of either knee. In this regard, the evidence shows full extension of both knees without pain. In conclusion, a preponderance of the evidence is against the assignment of any higher rating for any service-connected knee disability; hence, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Degenerative Disc Disease with Intervertebral Disc Disease The Veteran is service connected for degenerative disc disease with intervertebral disc disease, rated as 40 percent disabling prior to April 1, 2009, 20 percent disabling from April 1, 2009, through August 9, 2012, and 40 percent disabling from August 10, 2021, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. (He also has separate 40 percent disability ratings in effect for associated right and left leg radiculopathy; these issues are not for consideration in the current appeal.) Spine disabilities are generally rated under the same formulas, except for intervertebral disc syndrome (IVDS) which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). Under the General Rating Formula for Diseases and Injuries of the Spine, 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, 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 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, Diagnostic Codes 5235-5242 (2020). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1). As the Veteran is in receipt of separate ratings for right and left lower extremity radiculopathy, the symptomatology associated with those disabilities cannot be considered in assigning a rating under the General Rating Formula. 38 C.F.R. § 4.14. The Formula for Rating IVDS provides that a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). For purposes of evaluations 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. Id. at Note (1). The Board notes that effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The periods relevant to this decision are prior to and after the February 7, 2021, amendments. As pertinent to this case, Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. Prior to April 1, 2009 The Veteran submitted a claim for increased rating in June 2008. For the period from prior to April 1, 2009, the Veteran has been assigned a 40 percent rating for his service-connected low back disability. An October 2008 VA Examination Report notes the Veteran's complaints of moderate to severe constant low back pain without radiation. He denied flare-ups or any back surgery. He reported difficulty in prolonged sitting, standing and walking more than a half hour, and bending and lifting more than 10 pounds. He wore a back brace. On examination, active and passive range of motion testing of the lumbar spine revealed flexion to 80 degrees; extension to 20 degrees; and lateral flexion and rotation to 30 degrees bilaterally. The examiner noted that the Veteran had pain beginning at 70 degrees flexion, beginning at 10 degrees extension, and beginning at 20 degrees lateral flexion and rotation bilaterally. There was no additional loss of range of motion with repetitive testing. There was moderate spasm and moderate tenderness but no weakness. Neurologic examination was normal. The Veteran denied incapacitating episodes over the past 12 months. A March 2009 private MRI study showed degenerative changes, and degenerative spondyloarthropathy with a large right paracentral disc protrusion and annular tear, compressing and displacing the right S1 nerve root. Treatment records for this period do not reflect symptomatology worse than on the October 2008 VA examination. After review of the record prior to April 1, 2009, the Board concludes that the preponderance of the evidence does not support the assignment of a rating higher than 40 percent for the service-connected low back disability at any time. To warrant the assignment of the next highest (50 percent) rating provided under the General Rating Formula, the evidence must show or approximate unfavorable ankylosis of the entire thoracolumbar spine. However, the competent evidence in this case, including the 2008 VA examination report noted above, does not show ankylosis, and the Veteran has not reported otherwise. The Board has also considered the Veteran's reports of chronic low back pain, as well as his limited lumbar motion, pain on range of motion, and limitations on standing, sitting, walking, bending, and lifting, and the potential additional limitation of functioning resulting therefrom. The 2008 VA examination showed that the Veteran was able to perform repetitive use testing with no additional limitations. Although it is clear the Veteran experienced chronic low back pain and functional limitations due to this pain, and wore a back brace, there is insufficient objective evidence to conclude that his pain and other symptoms and resulting limitations resulted in the functional equivalent of unfavorable ankylosis of the thoracolumbar spine. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not warranted during this appeal period. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, there is no objective evidence of bowel or bladder dysfunction. The Board also concludes that the assignment of a rating higher than 40 percent for the Veteran's lumbar spine disability is not warranted under the Formula for Rating IVDS at any time prior to April 1, 2009. In that regard, the Veteran denied incapacitating episodes in October 2008 and the record does not otherwise show that bedrest was prescribed. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. Accordingly, the Veteran's claim for a rating in excess of 40 percent prior to April 1, 2009, must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). April 1, 2009, through August 9, 2012 For the period from April 1, 2009, through August 9, 2012, the Veteran has been assigned a 20 percent rating for his service-connected low back disability. An April 2011 VA examination report notes the Veteran's complaints of severe constant low back pain. He reported difficulty in sitting for more than 45 minutes, standing for more than 15 minutes, walking more than 10 minutes, and bending and lifting more than 15 pounds due to back pain. On examination, gait was mild to moderately antalgic. Active and passive range of motion testing of the lumbar spine revealed flexion to 50 degrees; extension to 20 degrees; and lateral flexion and rotation to 20 degrees bilaterally. The examiner noted that range of motion was not additionally limited by pain beginning at 40 degrees flexion, beginning at 10 degrees extension, and beginning at 10 degrees lateral flexion and rotation bilaterally. There was no additional loss of range of motion with repetitive testing. There was moderate spasm and moderate tenderness but no weakness. Neurologic examination was normal. The Veteran denied incapacitating episodes over the past 12 months. A September 2011 private MRI study showed disc degeneration with broad disc protrusion and disc herniation in the lumbar spine. A March 2012 private treatment record notes the Veteran's complaints of pain. He walked in a guarded position with his back. Treatment records for this period do not reflect limitation of motion worse than on the April 2011 VA examination or any prescribed bedrest. In light of the probative evidence above, the Board finds that a rating higher than 20 percent is not warranted for the Veteran's service-connected back disability for this period. The evidence did not demonstrate forward flexion of the thoracolumbar spine that was 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (i.e. where the spine is fixed in a neutral or upright position). The evidence also did not demonstrate IVDS with incapacitating episodes. The Board acknowledges the Veteran's lay reports of symptoms and complaints of functional loss due to pain. Even considering the Veteran's lay reports of symptoms and noted functional loss; however, the degree of additional limitation reflected by the record would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or ankylosis. Additionally, it is not shown that he had incapacitating episodes as defined by Note (1) of the Formula for Rating Intervertebral Disc Syndrome. See 38 C.F.R. § 4.71a. Additionally, there is no objective evidence of associated neurologic impairment other than the service-connected right and left lower extremity radiculopathy. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. Accordingly, the Veteran's claim for a rating in excess of 20 percent for the period from April 1, 2009, through August 9, 2012, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From August 10, 2012 For the period beginning August 10, 2012, the Veteran has been assigned a 40 percent rating for his service-connected low back disability. An August 10, 2012 VA examination report notes the Veteran's complaints of back pain; he denied any surgeries or any genitourinary complaints or impairments. He reported flare-ups of pain twice a week where he was incapacitated with bed rest for up to two days. On examination, range of motion was flexion to 20 degrees with pain at 10 degrees; extension to 20 degrees with pain at 10 degrees; and lateral flexion and rotation to 20 degrees bilaterally with pain at 10 degrees. There were no neurologic abnormalities such as bowel or bladder problems (other than lower extremity radiculopathy) related to the service-connected back disability. The report notes findings of IVDS. An April 2013 VA outpatient treatment record notes the Veteran had no bowel or bladder dysfunction. October 2017 and January 2020 VA Back Conditions DBQs both state there was no ankylosis of the spine or any other neurologic abnormalities (such as bowel or bladder problems) related to the service-connected back disability. Moreover, both reports note that while the Veteran had IVDS, he had not had any episodes that required bed rest in the past 12 months. The Veteran testified he had been told by his doctor "to actually stay in bed" because of his back disability. He also reported that this now happened at least three times per week. See December 2020 hearing transcript. Despite the Veteran's assertions, VA treatment records for the period do not show the Veteran has been prescribed bed rest for his back disability. In January 2019, it was noted he was not bed bound and in November 2019 he was ambulatory. In February 2021, he was referred for aquatic therapy. In March 2021, he stated he had spent the weekend in bed, but this was not prescribed by a physician. From April 10, 2012, the evidence does not demonstrate the criteria to warrant a rating in excess of 40 percent. Namely, the Veteran's low back disability has not resulted in unfavorable ankylosis of the thoracolumbar spine (i.e., the criteria for a higher 50 percent rating) even when considering functional loss due to pain, or incapacitating episodes requiring bed rest prescribed by a doctor. Therefore, the Board finds that a rating higher than 40 percent is not warranted for this period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. Accordingly, the Veteran's claim for a rating in excess of 40 percent beginning August 10, 2012, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. Significantly, however, to the extent that the examination findings of record relative to the spine are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. In that regard, the Board emphasizes that current examination findings would not be useful in adjudicating the rating assigned for the period from April 1, 2009 through August 9, 2012, and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking the examiner to speculate as to the ranges of motion for the period from April 1, 2009 through August 9, 2012. Moreover, for the period prior to April 1, 2009, and beginning August 10, 2012, the Veteran is in receipt of 40 percent ratings. Ratings in excess of 40 percent for the lumbar spine do not involve assessment of range of motion, and a remand to obtain a current examination that complies with Correia and Sharp would also not be useful. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.