Citation Nr: 21076370 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 95-03 535 DATE: December 23, 2021 ORDER A 30 percent rating for limitation of extension from February 4, 1996, to February 19, 2002, but not in excess of 30 percent, for left knee limitation of motion is granted. A separate 10 percent rating, but not higher, for left knee instability prior to February 19, 2002, is granted. A rating in excess of 10 percent for left knee limitation of motion from April 29, 2003, forward is denied. A separate 10 percent rating, but not higher, for left knee instability from August 6, 2005, to June 1, 2021, is granted. A rating in excess of 10 percent for lumbosacral strain prior to February 1, 2005, is denied. A rating in excess of 20 percent from February 1, 2005, to May 9, 2017, for lumbosacral strain is denied. A 40 percent rating, but not higher, for lumbosacral strain beginning May 9, 2017, is granted. Service connection for glaucoma is denied. REMANDED Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The evidence shows left knee extension was consistently limited to 20 degrees, but not 30 degrees, from February 2, 1996, to February 19, 2002, but the evidence does not show a compensable level of limitation of flexion at all during this period or of limitation of extension prior to February 1996. 2. The evidence shows mild left knee instability prior to February 19, 2002. 3. The evidence shows painful motion but not a compensable level of limitation of flexion or extension of the left knee from April 29, 2003, forward. 4. The evidence shows mild left knee instability from April 29, 2003, to June 1, 2021, but no more than mild instability at any point. 5. The evidence does not show more than slight limitation of the lumbar spine, thoracolumbar flexion to 60 degrees or less, combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour prior to February 1, 2005. 6. The weight of the evidence is against finding severe limitation of the lumbar spine or thoracolumbar flexion limited to 30 degrees or less from February 1, 2005, to May 9, 2017. 7. Resolving doubt in the Veteran's favor, he would have experienced 30 degrees or less of forward flexion of the thoracolumbar spine with repeated movement at the time of the May 9, 2017, examination had such been tested or estimated. 8. There is no evidence of ankylosis or fixation of the thoracolumbar spine. 9. The weight of the evidence is against finding radiculopathy prior to May 9, 2017, or other neurologic abnormalities associated with the back disability. 10. The evidence does not show in-service incurrence of glaucoma or abnormal eye pressure. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for limitation of extension from February 4, 1996, to February 19, 2002, but not in excess of 30 percent, for left knee limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5260, 5261. 2. The criteria for a separate 10 percent rating for left knee instability, but not higher, prior to February 19, 2002, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257. 3. The criteria for a rating in excess of 10 percent for left knee limitation of motion from April 29, 2003, forward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5260, 5261. 4. The criteria for a separate 10 percent rating, but not higher, for left knee instability from April 29, 2003, to June 1, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257. 5. The criteria for a rating in excess of 10 percent for lumbosacral strain prior to February 1, 2005, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5292 (2002), DC 5237 (2021). 6. The criteria for a rating in excess of 20 percent from February 1, 2005, to May 9, 2017, for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5292 (2002), DC 5237 (2021). 7. The criteria for a 40 percent rating, but not higher, for lumbosacral strain beginning May 9, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5292 (2002), DC 5237 (2021). 8. The criteria for service connection for glaucoma have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1986 to July 1989. The appeal for increased ratings for the left knee and back has a long procedural history, including Board decisions in August 2007 and July 2012, which were appealed to the Court of Appeals for Veterans Claims (CAVC) and remanded in August 2008 and October 2013. In the October 2013 memorandum decision, the CAVC noted that the Veteran had not challenged the rating assigned for his left knee from February 19, 2002, to April 28, 2003, and had abandoned that issue. The Board issued several subsequent remands with the most recent in March 2021. The undersigned judge held a hearing on these issues in January 2021. The Board notes that in addition to the issues of service connection for glaucoma and increased rating for right lower extremity radiculopathy, the Veteran also perfected an appeal for the denial of service connection for right upper extremity radiculopathy in October 2019, after a statement of the case was issued that same month. Service connection for right upper extremity radiculopathy, along with service connection for the neck and ulcerative colitis, was granted in July 2021 and September 2021 rating decisions, which constitutes a full grant. See Grantham v. Brown, 114 F.3d 1156 (1997) (ratings and effective dates are downstream issues, which must be separately appealed). Additionally, the Veteran filed an appeal of the effective date for the award of service connection for right lower extremity radiculopathy. However, the Board finds that issue is part of the appeal for an increased rating for the low back disability, addressed below. See Chavis v. McDonough, 34 Vet. App. 1, 15-16 (2021). Increased Rating for the Left Knee For disabilities based on limitation of motion, VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements"); 38 C.F.R. § 4.59. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A zero, non-compensable rating is warranted where flexion is limited to 60 degrees and a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Diagnostic Code 5257, which contemplates knee impairment with recurrent subluxation or lateral instability, was amended by the new regulations. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the regulation does not provide for retroactive application. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. For claims filed prior to February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For claims filed on or after February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling 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 or bracing for ambulation. A 20 percent rating is warranted for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or brace for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and a brace for ambulation. 38 C.F.R. § 4.71a, DC 5257. A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). 1. A rating in excess of 10 percent prior to February 19, 2002, for left knee limitation of motion 2. A separate 10 percent rating for left knee instability prior to February 19, 2002 First, after resolving doubt in the Veteran's favor, the Board finds the criteria for a 30 percent rating for limitation of extension, but not in excess of 30 percent, for limitation of motion of the left knee have been met from February 4, 1996, to February 19, 2002. See 38 C.F.R. § 4.71a, DC 5261. Although the Veteran had full extension on several occasions, the evidence shows he experienced consistent limitation of extension such that the 30 percent rating is warranted. A treating provider on February 4, 1996, measured the Veteran's active range of motion from 25 to 90 degrees. Similarly, the Veteran reported a limited ability to straighten his knee in a February 1996 statement. The October 1996 examiner noted the Veteran had pain and stiffness and was unable to fully extend his left knee but did not provide specific range of motion measurements. A January 1997 treatment record shows the left knee symptoms were gradually improving but the Veteran could not complete full extension. An August 1997 treatment record shows full range of motion of the left knee. A treating provider in March 1998 measured left knee flexion to 90 degrees, and treating providers in January 1999 noted incomplete flexion and minimal decrease in flexion without specific measurements. The February 1999 examiner measured left knee motion from 20 to 120 degrees with exquisite pain with attempts at full extension. A treating provider in November 1999 noted range of left knee motion from zero to 120 but with pain on full extension. The October 2000 examiner measured left knee motion from 20 to 100 degrees, and the examination report from February 12, 2002, shows left knee motion from zero to 110 degrees. A treating provider in June 2001 recorded left knee flexion to 100 degrees. The Board finds pain limited the Veteran's left knee extension consistently enough that the 30 percent rating should be assigned. In that regard, the award considers the effects of pain, weakness, stiffness, and other reported symptoms. However, the evidence shows the Veteran had flexion far beyond the 45 degrees required for a compensable rating, and the Veteran's reports of pain and functional impairment are more consistent with limitation of extension rather than flexion. Accordingly, the Board finds the 30 percent rating for limitation of extension most appropriate. For the period prior to February 4, 1996, the criteria for a rating in excess of 10 percent are not met. The May 1994 examiner did not provide range of motion measurements. An April 1995 treating provider measured active left knee motion from zero to 120 degrees and passive right knee motion from zero to 130 degrees. Although the Veteran endorsed pain and tenderness, the provider observed the Veteran was able to move his knee without discomfort. The 10 percent rating assigned compensates for pain, but there is simply no evidence prior to February 4, 1996, to find a compensable level of limitation of left knee flexion or extension. Next, the Board finds the criteria for a separate 10 percent rating, but not higher, for instability of the left knee have been met. See 38 C.F.R. § 4.71a, DC 5257. During the May 1994 examination, the Veteran reported the left knee had a tendency to buckle and lock when standing sometimes. The examiner found no objective evidence of laxity. An undated record that appears to be from 1995 or 1996 noted the Veteran had a positive "LCL" test for instability and was issued a knee brace; all other tests were negative. The treating provider in February 1996 noted mild lateral laxity with a +1 Lachman's test of the left knee. The Veteran continued to report locking or buckling in the February 1996 statement and February 1999 examination and was observed wearing a worn out brace during the February 2002 examination. The Board finds the subjective reports of symptoms, use of a knee brace, and accompanying findings of slight instability support assignment of a 10 percent rating for instability. However, the Board finds the evidence does not show moderate or severe instability. The Veteran was found to ambulate independently without use of assistive device. There is no evidence of frequent falls or other symptoms suggestive of more severe instability. Moreover, VA examiners and treating providers in May 1994, August 1997, February 1999, November 1999, October 2000, and February 2002 did not find objective evidence of instability on testing, which could suggest a more significant presentation. The Board is further persuaded by the February 1996 provider's classification of the Veteran's instability as mild. Thus, the 10 percent rating for instability is most accurate for the Veteran's disability presentation. The evidence does not show disabilities of the semilunar cartilage (meniscus), the tibia and fibula, or genu recurvatum to warrant separate ratings under Diagnostic Codes 5258, 5259, 5262, or 5263. Finally, there is no evidence of ankylosis or fixation of the knee to warrant a rating under Diagnostic Code 5256. 38 C.F.R. § 4.71a. VA examiners did not document these diagnoses, and the Veteran has not asserted that he has these impairments. 3. A rating in excess of 10 percent for left knee limitation of motion from April 29, 2003, forward 4. A separate 10 percent rating for left knee instability from August 6, 2005, to June 1, 2021 The Board will first address the lay statements of record. In the December 2005, December 2006, March 2010, February 2012, May 2017, and August 2019 examinations and January 2006 and May 2007 statements, the Veteran reported limitations in his ability to walk. He reported using a cane in March 2010 and that he could not stand for prolonged periods of time in a March 2012 statement and during the August 2019 examination. Treatment records suggest the Veteran had a different level of functional ability. In July 2006, March 2007, April 2011, and June 2019, the Veteran was treated for injury to his left toe, chest pain, injury to his right finger, and a torn left Achilles tendon that occurred while playing basketball. The March 2010 examiner noted the Veteran was physically developed with excellent muscle tone and bulk, which the Veteran attributed to regular exercise. The Veteran also endorsed regular exercise, jogging, and lifting weights during treatment in February 2015, March 2015, July 2017, and May 2018. The Board sees no way to reconcile the Veteran's report that his left knee disability was so severe that it limited his ability to walk or stand for prolonged periods and required use of a cane but did not interfere with his ability to run, pivot, and jump in basketball games and complete other exercise. Additionally, the Veteran reported wearing a knee brace all the time during the March 2010 examination, but a June 2010 treatment record suggests he had not been wearing the brace regularly and misplaced it. He reported constant use of a cane and brace to the May 2017 examiner, but a July 2017 treatment record notes he started re-using the brace after an injury in June 2017. The December 2006 examiner noted that the Veteran tended to favor the left lower extremity during the examination, but after completion of the examination, when he left the room, she did not notice that much favoring. The examiner noted, however, that the Veteran was not wearing his brace during the examination and wearing it after. Similarly, the March 2010 examiner noted the Veteran tended to maintain the left knee in a slightly flexed position when he walked for the examination, but he walked with the knee fully extended and without a limp when walking in the waiting room and after the examination. The April 2015 examiner noted the brace the Veteran was wearing looked brand new, but he stated he had had it for years. The examiner further observed the Veteran have a limp at sometimes and not at others, particularly when he was observed walking down the hall after the examination. Given the numerous inconsistencies, the Board finds a lack of credibility and very little probative value in the Veteran's actions and statements made during examinations and communications in his pursuit of an increased rating. The Board further finds limited probative value in medical opinions based on these reports of severity. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.) The Board, therefore, relies on statements made during treatment and the findings of medical professionals to determine the severity of the Veteran's left knee disability. The Board finds the criteria for a rating in excess of 10 percent for left knee limitation of motion have not been met for the period beginning April 29, 2003. See 38 C.F.R. § 4.71a, DC 5260, 5261. On April 29, 2003, the examiner measured the Veteran's left knee range of motion from zero to 110 degrees. The January 2004 examiner recorded left knee motion from zero to 120 degrees. The February 2005 examiner found maximum left knee extension and flexion to 85 degrees. In an August 2005 letter, Dr. G.W. noted good range of motion in the left knee. The December 2005 examiner measured left knee active and passive motion from full extension to 60 degrees of flexion. The December 2006 examiner recorded full left knee extension and flexion to 110 degrees at most limited. The March 2010 examiner measured left knee motion from zero to 130 degrees. The Veteran's left knee range of motion was from zero to 135 degrees during the February 2012 examination. The April 2015 examiner recorded left knee motion from zero to 130 degrees. During the May 2017 examination, the Veteran's initial range of left knee motion was from 33 to 125 degrees and then from 23 to 114 degrees after three repetitions. The examiner opined that he would experience motion from 23 to 114 degrees during flare-ups and after repeated use. A June 2017 treating provider found full range of motion in the Veteran's left knee, and a treating provider in July 2017 measured range of motion from zero to 115 degrees in the left knee. The August 2019 examiner recorded active range of left knee motion from zero to 80 degrees and passive motion from zero to 100 degrees. The June 2021 examiner measured initial active and passive left knee range of motion from zero to 85 and flexion further limited to 80 degrees after repeated motion. The Board notes that a January 2015 treatment record shows the Veteran requested physical therapy for his left knee because he could not bear any weight on it. Subsequent records indicate he sustained a twisting injury to his right knee in November 2014 and received physical therapy for his right knee in early 2015. This other evidence suggests that the January 2015 notation was in error and should have been for the right knee. The evidence does not show left knee flexion limited to 45 degrees or more. Additionally, the Board finds the single finding of limited extension from the May 2017 examination inconsistent with the other evidence of the Veteran's disability picture, particularly the finding of full extension the next two months, and not indicative of the Veteran's actual disability picture, which did not include extension limited to 10 degree or more. The Veteran consistently reported left knee pain in treatment records ranging from 3 to 7 out of 10. He received injections for pain. The Board has no doubt that the Veteran experiences pain and functional impairment due to pain. However, the Board does not find that this functional impairment manifested in flexion limited to 45 degrees or more or extension limited to 10 degrees or more. Regarding flares, the Veteran denied significant flare-ups in February 2005, then endorsed many flares in December 2005, denied flare-ups but reported continuous difficulty walking in December 2006, denied flares in February 2012 and April 2015, reported flare-ups in May 2017, and again denied flares in August 2019 and June 2021. Given these inconsistencies and the other issues with credibility of statements made during examinations, the Board finds the Veteran's disability picture is more accurately rating using the other evidence of record. Without credible evidence of a compensable level of left knee limitation of motion, the minimum rating for painful motion is appropriate. Next, the Board finds the criteria for a separate 10 percent rating for instability of the left knee have been met during this period beginning August 6, 2005, but not before. The evidence shows the instability symptoms shown previously in the Veteran's knee appear to have improved and returned after a work injury on August 6, 2005. On April 29, 2003, the examiner found no laxity in the Veteran's left knee and negative test results for instability. The January 2004 examiner noted that the Veteran had a brace but was not wearing it on examination. The examiner found no laxity and negative testing for instability. The Veteran was also not complaining of buckling, locking, or instability to treating providers or examiners. The Veteran was wearing a brace on the left knee during the February 2005 examination, but the examiner found no evidence of laxity and negative testing for instability. As discussed, the Board finds limited probative value in the statements and actions made by the Veteran in examinations and correspondence made in the pursuit of an increased rating. Accordingly, the Board does not find the fact that the Veteran wore his knee brace to the February 2005 examination sufficient evidence of instability symptoms at that time. The Board instead relies on the lack of complaints of buckling or instability made during this period as well as no evidence of use of assistive devices, regular use of a brace, or objective findings of instability on evaluation by medical professionals. A separate rating for instability is not appropriate for the left knee from April 29, 2003, to August 6, 2005. The Veteran was involved in a work accident on August 6, 2005, where he reported pressure was put on his left knee. See September 2005 report. Thereafter, he was seen by Dr. G.W. on August 15, 2005. Dr. G.W. noted pain on the lateral side of the knee and a question of joint stability. The Veteran reported instability and was wearing a knee brace during the December 2005 examination. During the December 2006 examination, the Veteran reported that the left knee would occasionally buckle when walking if he did not wear his brace. The Veteran endorsed instability, wearing a brace, and buckling at times during the May 2007 hearing and March 2010 examination. A June 2010 treatment record shows the Veteran was issued a left knee brace in October 2008 but had misplaced it and requested a new brace due to the onset of left knee problems again. The February 2012 examination shows regular use of a knee brace. A September 2013 treatment record notes the Veteran injured his foot when his knee gave out. A treating provider in March 2015 noted occasional locking in the left knee. The Veteran reported regular use of the knee brace during the April 2015 examination, but the examiner noted it looked brand new. During the May 2017 examination, the Veteran reported constant use of a brace and cane and difficulty walking on uneven terrain. However, a July 2017 treatment record shows the Veteran injured his knees in June 2017 and started using a brace he already had. The June 2021 examiner recorded the Veteran's reports of instability and the knee giving out on him but found no evidence of ligament tears or a prescription for assistive devices. The Board finds sufficient evidence that the Veteran experienced slight instability in his left knee from August 6, 2005, forward. However, the inconsistent use of the brace, lack of credible evidence of use of assistive devices, infrequency of treatment sought for instability, notation of only one fall related to the left knee in the period of multiple years, and no objective findings of instability weigh against finding moderate or severe instability. The evidence also does not show ligament sprain or tear affecting the left knee to warrant a higher rating under the amended criteria from February 7, 2021. Finally, the evidence does not show disabilities of the semilunar cartilage (meniscus), the tibia and fibula, or genu recurvatum to warrant separate ratings under Diagnostic Codes 5258, 5259, 5262, or 5263. There is also no evidence of ankylosis or fixation of the knee to warrant a rating under Diagnostic Code 5256. 38 C.F.R. § 4.71a. VA examiners did not document these diagnoses, and the Veteran has not asserted that he has these impairments. Increased Rating for Lumbosacral Strain 5. A rating in excess of 10 percent for lumbosacral strain prior to February 1, 2005 6. A rating in excess of 20 percent from February 1, 2005, to May 9, 2017, for lumbosacral strain 7. A 40 percent rating, but not higher, for lumbosacral strain (back) beginning May 9, 2017 The Veteran's lumbosacral strain was originally rated under Diagnostic Code 5292. It is currently rated under Diagnostic Code 5237. On September 26, 2003, the regulation and diagnostic codes affecting the spine were amended to the General Rating Formula for Diseases and Injuries of the Spine. As explained above, the Board cannot apply the amended regulation prior to its effective date, but when a claim is pending during the change, the Board can then apply either the old or new version to claim, and whatever criteria is more favorable will be used to assign ratings. See Kuzma, 341 F.3d at 1327. Prior to September 26, 2003, Diagnostic Code 5292 provided for ratings based on limitation of motion of the lumbar spine with a 10 percent rating for slight limitation, a 20 percent rating for moderate limitation, and a 40 percent rating for severe limitation. 38 C.F.R. § 4.71a, DC 5292 (2002). Ankylosis, or fixation of the spine, and intervertebral disc syndrome (IVDS) were rated under separate diagnostic codes. Beginning September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine provides for a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. In the May 2002 and March 2012 statements, May 2007 hearing, and December 2006, February 2012, and July 2012 examinations, the Veteran reported severe pain and limitations in his functional abilities, including the ability to move around, walk, and stand. VA treatment records from July 2006, March 2007, April 2011, February 2015, March 2015, July 2017, May 2018, and June 2019 show the Veteran's back disability did not interfere with his ability to play basketball and complete other forms of exercise. The Veteran reported using a back brace but inconsistently wore the brace to examinations, and treatment records do not show he was issued a back brace by a medical professional. The evidence shows the Veteran sustained an injury to his back while working in August 2005. However, he denied any work-related injury to the back during the February 2012 examination. The April 2015 examiner found the Veteran to be exaggerating his pain when wincing before starting any movement. Similar to the knee, the Board finds inconsistencies in the Veteran's reports and assigns little probative value to his reports of functional limitations in moving and standing from the back disability made in examinations and statements during the claims process in contrast with the other evidence of record. Therefore, the Board will again give greater probative weight to statements made during treatment and evaluations by medical professionals in determining the severity of the Veteran's back disability. After reviewing the record, the Board finds the criteria for a rating in excess of 10 percent for the back disability prior to February 1, 2005, have not been met. See 38 C.F.R. § 4.71a, DC 5292 (2002), DC 5237 (2021). During a February 2002 examination for fibromyalgia, slightly prior to the claim period, the Veteran reported having back pain for a year, and his lumbosacral motion was measured to 90 degrees of flexion with 210 degrees of combined motion. The examiner found no palpable muscle spasms and that the Veteran's gait was stable. In May 2002, the Veteran wrote that his back was very limited, and he used back braces. VA treatment records show the Veteran sought treatment for back pain every six months or so. In December 2002, he described his back pain as seven out of ten, but the other records do not show a pain measurement. During the February 2005 examination, the Veteran reported that his back was not worse since the last examination, he did not experience significant flares, he did not wear a back brace, and his back did not interfere with activities of daily living. The examiner measured his forward flexion to 60 degrees and combined range of motion of 160 degrees. The examiner found no evidence of muscle spasms and observed he ambulated independently with no mention of gait abnormality. During the period prior to February 1, 2005, the weight of the evidence is against finding moderate limitation of the lumbar spine, flexion limited to 60 degrees or less, combined motion not greater than 120 degrees, or muscle spasm, tenderness or guarding resulting in abnormal gait or spinal contour. Although there are no measurements taken during this period, the measurements taken shortly before and after show flexion to 60 degrees or more and combined motion greater than 120 degrees. Additionally, there is no evidence of abnormal gait or spinal contour resulting from muscle spasms or guarding. The Board has considered the December 2002 report of significant back pain as seven out of ten, however, the Board finds the other evidence of record suggests his overall back disability presented with no more than slight limitation. Specifically, the Veteran was working in a physical job in a warehouse during this period and sought treatment for back pain only a handful of times. The pain the Veteran experienced is considered and compensated by the 10 percent rating he receives, but the evidence does not support a rating in excess of 10 percent prior to February 1, 2005. The Board notes that a prior Board decision discussed flare-ups during this period. The Board now finds insufficient evidence of flare-ups in the Veteran's back disability during this period. Treatment records show the Veteran experienced varying degrees of back pain, but there are no reports of flare-ups. Instead, the Veteran denied having had significant flare-ups in the February 2005 examination. Thus, further consideration of flare-ups is not necessary. Additionally, the Board notes that the June 2017 examiner found the Veteran's back disability would be considered moderate and discussed evidence from prior periods. The Board finds little probative value in this opinion as it is based on the finding that the Veteran could "not tolerate excessive, repetitive, or prolonged activity of his thoracolumbar spine," but the evidence shows the Veteran played basketball and completed other forms of exercise throughout the appeal period, which suggests a significantly different functional ability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.). Next, based on the evidence, the Board finds the criteria for a 40 percent rating for the back were not met prior to May 9, 2017. See 38 C.F.R. § 4.71a, DC 5292 (2002), DC 5237 (2021). As noted, the Veteran denied significant flares and had thoracolumbar flexion to 60 degrees during the February 2005 examination. In August 2005, Dr. G.W. observed full range of lumbar spine motion but with complaints of pain on motion. The December 2006 examiner noted no back brace, no evidence of guarding, and that the Veteran did not experience difficulty getting on and off the exam table or removing and replacing his shoes and socks. The examiner measured flexion to 50 degrees initially and then to 60 degrees with repetitive motion. In a November 2007 statement, the Veteran reported his forward flexion was measured to less than 30 degrees during physical therapy in 2005. The Board has reviewed the claims file and sees no record of thoracolumbar spine range of motion taken during physical therapy in 2005. To the contrary, Dr. G.W. summarized his treatment of the Veteran, noting he had full range of motion, in September 2005. Given the other contradictory statements of record and the lack of corroborating evidence, the Board does not find the November 2007 statement probative evidence that the Veteran had flexion limited to 30 degrees in 2005. Moreover, the Veteran is represented by an attorney and this issue has been before the Board and the CAVC multiple times without the Veteran requesting additional records be obtained to support his case. These records were not provided to VA or the Social Security Administration when other private records were identified. The Board, therefore, assumes any such record is either not available or not in the Veteran's interest to pursue. As such, additional remand would only prolong the Veteran's appeal without value to him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The March 2010 examiner measured thoracolumbar flexion to 70 degrees. The February 2012 examiner recorded thoracolumbar flexion to 55 degrees. VA treatment records show complaints of back pain ranging from zero to seven out of ten. While these records show he suffered notable back pain, they also show he experienced periods with little or no pain. For example, an April 2010 treatment record shows the Veteran reported first noticing back pain three weeks prior, and an October 2012 record shows low back pain as zero out of ten. Additionally, the Veteran was able to continue playing basketball and exercise despite his pain. The July 2012 examiner measured forward flexion to 60 degrees and noted the Veteran's report of using a back brace occasionally, which the examiner observed was a non-prescription brace. The April 2015 examiner measured thoracolumbar flexion to 85 degrees and noted the Veteran seemed to be exaggerating his pain when wincing before starting any movement. The Board finds the evidence is against finding severe back limitation or thoracolumbar flexion limited to 30 degrees or less prior to May 9, 2017. The Board notes that the Veteran's flexion was limited to 50 degrees initially in December 2006. However, because he then was able to flex his thoracolumbar spine to 60 degrees on repetitive testing, the Board finds he was not functionally limited to 50 degrees of flexion. Therefore, the greatest level of limitation measured during this time is to 55 degrees of flexion. The June 2021 examiner opined that the Veteran could experience an additional 20 degrees of limitation in certain circumstances. Giving the Veteran the benefit of the doubt and assuming he would have experienced the same level of additional limitation throughout the claim period, he would have still had motion to 35 degrees and would not have met the criteria for a 40 percent rating. The Veteran did not endorse flare-ups in February 2005, February 2012, April 2015, August 2019, and June 2021 examinations but reported flares in December 2006, July 2012, and May 2017. Due to this inconsistency and the other credibility concerns with statements made during examinations, the Board finds the estimate of limitation with repeated use more accurately captures his disability picture. Treatment records show the Veteran reported his average back pain as five or six out of ten, which is consistent with moderate limitation. The 20 percent rating assigned compensates for moderate limitation from pain, motion limited by pain and other symptoms, as well as muscle spasms and guarding. A 40 percent rating is not warranted prior to May 2017. Third, the Board has resolved doubt in the Veteran's favor and finds the criteria for a 40 percent rating for the back have been met beginning May 9, 2017. See 38 C.F.R. § 4.71a, DC 5237. The May 2017 examiner measured the Veteran's forward flexion to 47 degrees, but the examiner did not provide estimates on range of motion with repeated use because such was "reported but not observed." The August 2019 examiner could not measure the Veteran's thoracolumbar range of motion, because the Veteran could not bear weight on his left foot after the June 2019 basketball injury. The June 2021 examiner measured the Veteran's initial thoracolumbar flexion to 45 degrees and found that he would experience an additional loss of 20 degrees with repeated use over time. Assuming the Veteran experienced the same amount of limitation at the time of the May 2017 examination, he would have experienced thoracolumbar flexion limited to 27 degrees. Resolving such doubt in his favor, he met the criteria for a 40 percent rating beginning May 9, 2017. The Board finds this is an appropriate date for the worsening of the Veteran's back disability as it is also the first examination to reveal lower extremity radiculopathy associated with the back. Consideration has been given to assigning a rating under the criteria for IVDS or ankylosis. However, the evidence shows the Veteran does not have IVDS or ankylosis/fixation of the spine. See 38 C.F.R. § 4.71a. The evidence shows the Veteran was able to move his back within a limited range throughout the appeal. The April 2015, May 2017, August 2019, and June 2021 examiners specifically found the Veteran did not have ankylosis of the thoracolumbar spine. The July 2012, April 2015, May 2017, August 2019, and June 2021 examiners also found he did not have IVDS. The Veteran has not reported that his thoracolumbar spine is fixed in one position or that he has been diagnosed with IVDS. Therefore, increased ratings are not available for those conditions. Regarding neurological impairment, the addition of the General Rating Formula for the Spine in September 26, 2003, included directives to rate neurologic impairment separately. However, the weight of the evidence is against finding the Veteran had separate neurologic disabilities prior to May 9, 2017, when he was granted separate ratings for lower extremity radiculopathy. The February 2005 examiner found no radicular pain. In December 2006, the Veteran reported tingling in the toes of the left foot after prolonged sitting but then going away with standing. The examiner noted normal reflexes, sensation, strength and negative straight leg raising test in the lower extremities. The March 2010 examiner found slight hypalgesia in the left lower extremity but no pain on straight leg raising, normal reflexes, and no weakness in the lower extremities. During the February 2012 examination, the Veteran reported pain occasionally radiating to his buttock but no further. The examiner found no signs or symptoms of radiculopathy with normal reflexes, sensation, strength, and negative straight leg raising test. The July 2012 examiner also found normal testing and no radiculopathy. A February 2013 treatment record shows low back pain without a radicular component. Finally, the April 2015 examiner also found no signs or symptoms of radiculopathy with normal strength, reflexes, and sensation in the lower extremities. The Board has considered the report of left toe tingling in December 2006 and finding of slight hypalgesia in the left leg in March 2010 but finds the other evidence of record weighs against finding radiculopathy prior to May 2017. The Board finds particularly probative the negative findings of the February 2012, July 2012, and April 2015 examiners and February 2013 treating provider as they have medical experience and were specifically evaluating the Veteran for radiculopathy. Neither the Board nor the Veteran has the requisite medical expertise to determine if those symptoms were attributable to radiculopathy associated with his back disability or another diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the weight of the most probative evidence is against finding radiculopathy of the lower extremities prior to May 2017. The evidence does not show other neurologic abnormalities at any point during the claim period. The February 2005 and December 2006 examiners found no evidence of bowel or bladder dysfunction or involvement of the back disability. The February 2012, July 2012, April 2015, May 2017, August 2019, and June 2021 examiners found no evidence of other neurologic abnormalities associated with the back disability. The Veteran has not reported having symptoms of other neurologic abnormalities aside from radiculopathy. Separate ratings for such are not warranted. Service Connection 8. Service connection for glaucoma Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the record, the Board finds the criteria for service connection for glaucoma have not been met. 38 C.F.R. § 3.303. The evidence shows a current disability. VA and private treatment records show diagnosis of and treatment for primary open angle glaucoma. However, the weight of the evidence is against finding an in-service incurrence of glaucoma or abnormal ocular pressure. Service treatment records, including an optometric evaluation in February 1988, are silent for glaucoma or abnormal ocular pressure. Rather, treatment records show the Veteran has astigmatism and was prescribed eyewear after reporting blurriness in service. VA treatment records from 1998 to 2005 also do not mention glaucoma. A May 2006 treatment record is the first notation for suspected glaucoma. During the Board hearing, the Veteran reported starting to have problems in service when he was in the desert and his vision would get blurry with the heat. He testified that his vision issues continued. The Veteran is competent to describe symptoms observable to his senses, but he is not competent to determine the cause of a symptom, like blurriness, as this requires specialized medical training to understand the complexities of the eye. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The competent evidence of record shows that the Veteran was evaluated and prescribed eyewear for blurriness in service and not diagnosed with glaucoma until decades after service. The Board finds the greater weight of the evidence is against an in-service incurrence of glaucoma, and the claim of service connection must be denied. REASONS FOR REMAND 9. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. The Veteran appealed the rating assigned for his right lower extremity radiculopathy in August 2018, the Agency of Original Jurisdiction (AOJ) issued a statement of the case in October 2019, and the Veteran perfected his appeal in October 2019. The undersigned judge took testimony on that issue in January 2021. However, that issue was not listed in the March 2021 Board remand or September 2021 supplemental statement of the case. As such, it does not appear that the AOJ considered evidence from the June 2021 examination prior to transferring the case to the Board. The AOJ must review this new evidence prior to a Board decision on the issue of an increased rating for the right lower extremity. See 38 C.F.R. § 19.37(a). The record does not show that the Veteran appealed the rating assigned for his left lower extremity. Although the question of entitlement to separate ratings for radiculopathy prior to May 2017 was part of the appeal for an increased back rating, the Veteran did not file an appeal with the rating assigned for his left lower extremity by the AOJ in the October 2019 rating decision and that issue is not before the Board. See Chavis, 34 Vet. App. at 15-16. The matters are REMANDED for the following action: 1. Issue a supplemental statement of the case for the issue of an increased rating for right lower extremity radiculopathy that considers the June 2021 examination and other newly obtained and relevant evidence. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.