Citation Nr: 21006905 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-06 473 DATE: February 5, 2021 ORDER An initial rating in excess of 20 percent, from December 17, 2007 to the present, for a lumbar spine disability, is denied. An initial rating in excess of 20 percent, from June 13, 2014 to the present, for right lower extremity radiculopathy, is denied. An initial rating excess of 10 percent, from June 13, 2014 to October 4, 2018, for left lower extremity radiculopathy, is denied. An initial rating of 20 percent, from October 5, 2018 to the present, for left lower extremity radiculopathy, is granted. An initial rating in excess of 10 percent, from December 17, 2007 to the present, for right knee degenerative arthritis, is denied. An initial rating in excess of 10 percent, from December 17, 2007 to the present, for left knee degenerative arthritis, is denied. An initial compensable rating, from December 17, 2007 to the present, for scars of the left knee is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's lumbar spine did not show forward flexion functionally limited to 30 degrees or less, ankylosis, or IVDS causing incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. 2. Throughout the entire period on appeal, the Veteran’s right lower extremity radiculopathy has been moderate in severity. 3. From June 13, 2014 to October 4, 2018, the Veteran’s left lower extremity radiculopathy was mild in severity. 4. From October 5, 2018 to the present, the Veteran’s left lower extremity radiculopathy has been moderate in severity. 5. Throughout the entire period on appeal, the Veteran’s right knee disability manifested as arthritis with painful noncompensable motion. 6. Throughout the entire period on appeal, the Veteran’s left knee disability manifested as arthritis with painful noncompensable motion. 7. The Veteran has three scars of the left knee measured as totalling 1.75 centimeters square. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243, 5237. 2. Throughout the entire period on appeal, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8720. 3. From June 13, 2014 to October 4, 2018, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8720. 4. From October 5, 2018 to the present, the criteria for a 20 percent rating for left lower extremity radiculopathy, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8720. 5. Throughout the entire period on appeal, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5257-5010. 6. Throughout the entire period on appeal, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5257-5010. 7. The criteria for a compensable rating for scars of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1987 to September 1992. This matter was previously before the Board of Veterans’ Appeals (Board) in October 2019 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. An initial rating in excess of 20 percent, from December 17, 2007 to the present, for a lumbar spine disability, is denied The Veteran contends that his low back disability is worse than that which is contemplated by his current 20 percent rating under DC 5243. For the reasons discussed below, a rating higher than 20 percent for the Veteran’s service-connected lumbar spine disability is not warranted at any time during the period on appeal. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § § 4.71, Plate V. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. §§ 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § § 4.71a, DC 5243, Note (1). In the February 2008 VA examination, the examiner noted that an examination of the Veteran’s back shows normal lumbar lordosis. However, his range of motion (ROM) was noted as reduced. Tenderness to palpation was noted in the L5 region. No rigidity or spasticity of the muscles of the area were noted. Flexion was limited to 60 degrees with pain beginning at 30 degrees. Extension was limited to 15 degrees, which was limited by pain. Bilateral flexion was limited to 15 degrees with pain. Straight leg testing was positive bilaterally with more pain in the knees and lower back. No decrease in muscle strength was noted. No decrease in sensory sensation was noted. No additional limitation of ROM was noted on repeated movement due to pain, incoordination or lack of endurance. The examiner noted that MRI showed multiple degenerative changes at L3-L4 and L5-S1 with borderline spinal stenosis. The Veteran was afforded a VA examination in June 2014. The examiner noted a diagnosis of degenerative joint disease (DJD) with IVDS. Flare-ups were reported, which cause painful standing, sitting, and bending. Initial ROM measurements were recorded as the following: forward flexion to 35 degrees with pain at 30 degrees, extension to 20 degrees with pain at 15 degrees, bilateral flexion to 30 degrees or greater with pain at 30 degrees or greater, right lateral rotation to 30 degrees or greater with pain at 30 degrees or greater, and left lateral rotation to 20 degrees with pain at 20 degrees. ROM measurements after repetitive-use testing were recorded as the following: flexion to 35 degrees, extension to 20 degrees, bilateral flexion to 30 degrees or greater, right lateral rotation to 30 degrees or greater, and left lateral rotation to 25 degrees. No additional limitation of ROM was noting following repetitive-use testing. However, functional loss and/or impairment was noted as weakened movement, excess fatigability, incoordination, pain on movement, and interference with sitting, standing, and/or weight-bearing. Localized tenderness or pain on palpation was noted in the area of L2-L5 and in the right SI joint. The examiner noted that guarding and/or muscle spasm is present but does not result in abnormal gait or spinal contour. Muscle strength testing was performed. Muscle strength of four out of five was noted on right hip flexion, right knee extension, and right ankle plantar extension. All other measurements indicated normal muscle strength, five out of five. Muscle atrophy was denied. A reflex examination was normal. Sensory sensation was noted as decreased in the bilateral lower leg/ankle and foot/toes. The straight leg raising testing indicated positive results for the right leg. No neurologic abnormalities were noted. IVDS was noted, but the examiner noted that the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. The regular use of a back brace was endorsed. No other pertinent findings were noted. In terms of functional impact, the examiner noted that the Veteran has difficulty sitting for long periods of time. The examiner remarked that the Veteran’s gait and posture are within normal limits. Contributing factors of pain, weakness, fatigability and/or incoordination were noted as well as additional limitation of functional ability to the thoracolumbar spine during flare-ups and repeated use over time. The degree of ROM loss during pain or flare-ups was approximated as 10 degrees in all directions. The Veteran was afforded a VA examination in August 2017. The examiner noted a diagnosis of degenerative disc disease (DDD) of the lumbar spine. Flare-ups were reported to cause increased pain and stiffness associated with prolonged activities. The Veteran reported that he has limited ROM and is unable to stand for prolonged periods of time. Initial ROM measurements were recorded as the following: forward flexion to 40 degrees, extension to 10 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 10 degrees. ROM was noted to contribute to functional loss in that the Veteran has difficulty with bending, twisting, and less movement than normal. Pain was noted on forward flexion, extension, bilateral flexion, and right lateral rotation, but does not cause functional loss. Mild to moderate localized tenderness or pain on palpation of the lumbar spine was noted. Objective evidence of pain with weight bearing was also noted. ROM measurements after repetitive-use testing were recorded. However, no additional loss of ROM or functional loss was recorded. Repeated use over time testing was not performed. The examination was not conducted during a flare-up. Guarding or muscle spasm was denied. Additional contributing factors were noted as the following: less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. Muscle strength was noted as normal on all tested movements, five out of five. Muscle atrophy was denied. A reflex examination yielded normal results on all testing sites. Straight leg testing results were negative. Ankylosis was denied. No neurologic abnormalities were noted. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were noted. The examiner noted that the Veteran’s condition does not have a functional impact on the Veteran’s ability to work. Objective evidence of pain when used in non-weight bearing activity was denied. The Veteran was afforded a VA examination in October 2018. The examiner noted a diagnosis of DDD of the lumbar spine with IVDS. Flare-ups were reported to cause an inability to move and that the Veteran stays at home during flare-ups. Functional loss or impairment was noted as an inability to lift heavy objects, and an inability to perform repetitive movements. Initial ROM measurements were recorded as the following: forward flexion to 42 degrees, extension to 0 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 10 degrees. ROM was noted not to contribute to functional loss. Pain was noted on forward flexion, extension, bilateral flexion, and bilateral rotation. Moderate localized tenderness or pain on palpation of the lumbar spine was noted. Objective evidence of pain with weight bearing was also noted. ROM measurements after repetitive-use testing were recorded. However, no additional loss of ROM or functional loss was recorded. Repeated use over time testing was not performed. However, pain, fatigue, weakness, lack of endurance, and incoordination was noted with repeated use over time. The examination was not conducted during a flare-up. However, pain, fatigue, weakness, lack of endurance, and incoordination was noted with flare-ups. Guarding or muscle spasm was noted to result in abnormal gait or abnormal spinal contour. Specifically, the examiner noted that the Veteran is hunched, has a slow antalgic gait, and his forward leaning posture is secondary to spasm. Additional contributing factors were noted as interference with standing. Muscle strength was noted as four out of five on bilateral hip and knee flexion and extension, all other movements were of normal strength. Muscle atrophy was denied. A reflex examination yielded absent reflexes of the bilateral knee. A sensory examination yielded decreased sensation to light touch of the bilateral upper anterior thigh, and thigh and knee. Straight leg testing results were positive. Ankylosis was denied. Urinary incontinence most likely associated with degeneration of the lumbar spine was noted. IVDS with reported episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months was noted. The examiner noted that the Veteran reported, without medical documentation, that during flare-ups the Veteran has had intermittent times needing bed rest with a duration of less than one week per episode. The occasional use of a back brace was endorsed. No other pertinent findings were noted. In terms of functional impact, the examiner noted that the Veteran is unable to perform repetitive activities, overhead activities, prolonged standing, and prolonged walking. Objective evidence of pain when used in non-weight bearing activity was endorsed with ROM described as the same as was recorded during active ROM. Pursuant to the October 2019 Board remand, the Veteran was afforded a VA examination in January 2020. The examiner noted a diagnosis of degenerative arthritis and spondylolisthesis of the lumbar spine with IVDS. Flare-ups were denied. However, functional loss or impairment was noted to limit activities due to back pain. The Veteran also reported that pain prevents him from going out and cause the need to lay down. He reported pain getting out of bed, that he tries not to do much, and that he adjusts his computer at work to a standing position when needed. He also reported that he is unable to walk long distances. Initial ROM measurements were recorded as the following: forward flexion to 75 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. ROM was noted to contribute to functional loss in that the Veteran has increased stiffness and decreased flexibility with bending. Pain was noted on forward flexion, extension, bilateral flexion, and bilateral rotation. Objective evidence of pain with weight bearing was noted. Moderate localized tenderness or pain on palpation of the lumbar spine and external obliques was noted. ROM measurements on repetitive-use testing with at least three repetitions were recorded. However, not additional loss of ROM or functional loss was recorded. Repeated use over time testing was not performed. The Veteran was not examined immediately after repetitive use over time. However, pain, fatigue, and lack of endurance, were noted with repeated use over time. The examiner described the additional limitation of ROM as the following: forward flexion to 75 degrees, extension to 15 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 15 degrees. The examination was not conducted during a flare-up. Pain, fatigue, weakness, lack of endurance, and incoordination was noted not to cause additional limitation of functional ability with flare-ups. The examiner noted that the Veteran specifically denied flare-ups. Muscle spasm was noted but did not result in abnormal gait or abnormal spinal contour. Additional contributing factors were noted as interference with sitting and standing. Muscle strength was noted as five out of five on all measurements. Muscle atrophy was denied. A reflex examination revealed hypoactive bilateral knee and ankle. A sensory examination yielded normal findings. Straight leg testing results were positive. Ankylosis was denied. No neurologic abnormalities were noted. IVDS was reported but without episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The use of assistive devices was denied. No other pertinent findings were noted. A January 2020 lumbar spine x-ray was noted to show arthritis. In terms of functional impact, the examiner noted that the Veteran’s condition caused him to miss up to one week of work time in the last 12 months. The examiner also noted that the Veteran is unable to sit or stand for prolonged periods due to DDD of the lumbar spine with IVDS, spondylolisthesis, and bilateral lower extremity sciatica. Passive ROM testing was not performed. The examiner stated that it was not feasible to perform passive ROM testing in a safe and reasonable manner. In a July 2020 addendum to the January 2020 VA examination, the examiner opined that the Veteran does not have ankylosis and that the Veteran has ROM in all planes. In a September 2020 statement, the Veteran stated that he has extreme pain in his low back and that he is unable to walk for prolonged periods. A December 2020 VA medical record indicates that the Veteran cancelled an appointed and stated that he “can barely move.” Pursuant to 38 C.F.R. §§ 4.71a DC 5237, a rating higher than 20 percent for a lumbar spine disability can only be assigned if the Veteran exhibits forward flexion of the thoracolumbar spine to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Throughout the period on appeal, at worst, the Veteran has exhibited flexion of his lumbar spine limited to 35 degrees with pain shown, at worst, at 30 degrees. Further, ankylosis is consistently denied throughout the period on appeal. Therefore, throughout the period on appeal, the Veteran is not entitled to a schedular rating in excess of 20 percent, for his lumbar spine disability under DC 5237. A higher rating under DC 5243 is also not warranted. Although the October 2018 VA examination showed IVDS with reported episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months, the examiner noted that the Veteran reported, without medical documentation, that during flare-ups the Veteran has had intermittent times needing bed rest with a duration of less than one week per episode. A higher rating under the criteria for IVDS requires a showing of incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period. Furthermore, the criteria also require that acute signs and symptoms due to IVDS requires that bed rest is prescribed by a physician and treatment by a physician. 38 C.F.R. § § 4.71a, DC 5243, Note (1). The record does not show that the Veteran has had incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period and has been prescribed bed rest by a physician and had treatment by a physician. Therefore, a higher rating under DC 5243 is not warranted. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. §§ 4.45. Although the Veteran reported experiencing flare-ups during the period on appeal, it has not been shown that the Veteran's thoracolumbar spine flexion, even accounting for pain, weakness, fatigability, or incoordination, showed forward flexion functionally limited to 30 degrees or less or that there is favorable ankylosis of the entire thoracolumbar spine. As such, while the Veteran experiences pain on ROM, the pain was not shown to effectively limit the forward flexion in his back to 30 degrees or less or ankylosis. Throughout the entire period on appeal, the weight of the evidence indicates that the Veteran's lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 20 percent. As such, while the Veteran may, at times, experience pain on ROM, pain has not been shown to have effectively limited forward flexion to 30 degrees or less, and ankylosis has been consistently denied. Accordingly, throughout the entire appeal period, a disability rating in excess of 20 percent, for a lumbar spine disability is not warranted and, the claim is denied. 2. An initial rating in excess of 20 percent, from June 13, 2014 to the present, for right lower extremity radiculopathy, is denied. The Veteran contends that symptoms of his right lower extremity radiculopathy are worse than that which is contemplated by his current 20 percent rating. For the reasons discussed below, a rating higher than 20 percent for the Veteran’s service-connected right lower extremity radiculopathy is not warranted at any time during the period on appeal. Under DC 8720 for neuralgia of the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent, the maximum available, is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2018). Additionally, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. The Veteran was afforded a VA examination in June 2014. The examiner noted moderate constant pain, moderate intermittent pain, and moderate numbness of the right lower extremity. The severity of the Veteran’s right lower extremity radiculopathy noted as moderate. The Veteran was afforded a VA examination in August 2017. The examiner noted that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran was afforded a VA examination in October 2018. The examiner noted moderate intermittent pain and mild paresthesias and/or dysesthesias. The severity of the Veteran’s right lower extremity radiculopathy noted as moderate. Involvement of the L2/L3/L4/L5/S1/S2/S3 nerve roots were noted. Pursuant to the October 2019 Board remand, the Veteran was afforded a VA examination in January 2020. The examiner noted mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The severity of the Veteran’s right lower extremity radiculopathy noted as moderate. Involvement of the L4/L5/S1/S2/S3 nerve roots were noted. Upon review of the evidence, a rating in excess of 20 percent is not warranted at any time during the period on appeal. The evidence shows moderate radiculopathy in his right lower extremity. The evidence does not show more severe symptoms. Therefore, a rating in excess of 20 percent for right lower extremity radiculopathy is not warranted and, the claim is denied. 3. An initial rating in excess of 10 percent, from June 13, 2014 to October 4, 2018, for left lower extremity radiculopathy, is denied. 4. An initial rating of 20 percent, from October 5, 2018 to the present, for left lower extremity radiculopathy, is granted. The Veteran contends that symptoms of his left lower extremity radiculopathy are worse than that which is contemplated by his current 10 percent rating. For the reasons discussed below, a rating in excess of 10 percent, from June 13, 2014 to October 4, 2018, for left lower extremity radiculopathy is not warranted, and a 20 percent rating, but no higher, is warranted from October 5, 2018 to the present. As noted above, under DC 8720 for neuralgia of the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent, the maximum available, is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The Veteran was afforded a VA examination in June 2014. The examiner noted mild constant pain, mild intermittent pain, and mild numbness of the left lower extremity. The severity of the Veteran’s left lower extremity radiculopathy noted as mild. The Veteran was afforded a VA examination in August 2017. The examiner noted that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran was afforded a VA examination in October 2018. The examiner noted moderate intermittent pain and mild paresthesias and/or dysesthesias. The severity of the Veteran’s left lower extremity radiculopathy noted as moderate. Involvement of the L2/L3/L4/L5/S1/S2/S3 nerve roots were noted. Pursuant to the October 2019 Board remand, the Veteran was afforded a VA examination in January 2020. The examiner noted mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The severity of the Veteran’s left lower extremity radiculopathy noted as moderate. Involvement of the L4/L5/S1/S2/S3 nerve roots were noted. Upon review of the evidence, a rating in excess of 10 percent is not warranted, for the period from June 13, 2014 to October 4, 2018, since the evidence shows that, at worst, the Veteran’s symptoms were mild in severity. A 20 percent rating, but no higher, is warranted, for the period from October 5, 2018 to the present, since the evidence shows that the Veteran’s symptoms were, at worst, moderate in severity. Therefore, for the period from June 13, 2014 to October 4, 2018, a rating in excess of 10 percent is not warranted and, to this extent, the claim is denied. However, for the period from October 5, 2018 to the present, a 20 percent rating is warranted, and to this extent, the claim is granted. 5. An initial rating in excess of 10 percent, from December 17, 2007 to the present, for right knee degenerative arthritis, is denied. 6. An initial rating in excess of 10 percent, from December 17, 2007 to the present, for left knee degenerative arthritis, is denied. The Veteran contends that his right and left knee disabilities are worse than that which is contemplated by his current 10 percent ratings for each knee. For the reasons discussed below, ratings higher than 10 percent for the Veteran’s right and left knee disabilities are not warranted at any time during the period on appeal. The Veteran's right knee and left knee disabilities are rated as 10 percent disabling under DC 5257-5010. Hyphenated DCs are used when a rating under one DC determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. Under DC 5257 ("Knee, other impairment of: Recurrent subluxation or lateral instability"), recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Diagnostic code 5010 (arthritis, due to trauma, substantiated by x-ray findings) rates disabilities using the classifications of DC 5003 (arthritis, degenerative), which provides two rating options for x-ray-established degenerative arthritis. The first is based on limitation of motion (as classified under the DC for the joint involved) objectively confirmed by findings such as swelling, muscle spasm, or painful motion. The second option under DC 5003 applies where there is no limitation of motion; this option allocates either a 10 percent rating if two or more major joints (or minor joint groups) are involved or a 20 percent rating if the criteria for a 10 percent rating are met and there are occasional incapacitating exacerbations. The DCs that rate on the basis of limitation of knee motion are DCs 5260 (leg, limitation of flexion of) and 5261 (leg, limitation of extension of). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The U. S. Court of Appeals of Veterans Claims (Veterans Court/CAVC) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, premature or excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss owing to these factors, including during prolonged or repeated use or when the symptoms are especially problematic ("flare ups"). DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). VA's General Counsel also has held that separate ratings are permissible under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In the February 2008 VA examination, the examiner noted that an examination of the bilateral knee did not show any effusion or swelling. The knees were noted to show tenderness to palpation of the anterior and the medial aspect to each knee. ROM of the right knee was noted to show flexion to 120 degrees actively and 150 degrees passively with pain beginning at 120 degrees bilaterally. Extension was recorded as to 0 degrees both on active and passive testing with pain. Pain was noted as located in the medial aspect of the knee during valgus and varus stressing. ROM of the left knee showed active flexion to 120 degrees with pain and passive flexion to 115 degrees. Extension to 0 degrees on both active and passive movement was noted with pain. Severe pain was noted in the medial compartment during valgus testing. Anterior-posterior drawer testing was noted as negative bilaterally. McMurray and Lachman testing were noted as negative bilaterally. No additional limitation on repeated ROM due to pain, incoordination, or lack of endurance was noted. MRI of the right knee was noted to show a tear of the posterior horn of the lateral meniscus with mild tri-compartment osteoarthritis and ruptured baker’s cyst. MRI of the left knee was noted to show tri-compartment osteoarthritis and unstable tripartite patella. No evidence of ligament tear was noted. The Veteran was afforded a VA examination in June 2014. The examiner noted a diagnosis of bilateral knee DJD. The Veteran reported flare-ups, which were described as pain caused by walking, bending, and climbing. Initial ROM measurements were recorded. The Veteran had right knee flexion to 40 degrees with painful motion at 35 degrees. No limitation of extension or painful motion on extension was noted. The Veteran had left knee flexion to 110 degrees with painful motion at 90 degrees. No limitation of extension or painful motion on extension was noted. ROM measurements after repetitive use testing were recorded. The right knee had post-test flexion to 40 degrees. No additional limitation of ROM was noted following repetitive-use testing. The left knee had post-test flexion to 110 degrees. No additional limitation of ROM was noted following repetitive-use testing. However, functional loss and/or impairment was noted as weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with standing, sitting and/or weight-bearing bilaterally. Pain on palpation was noted bilaterally. Right knee muscle strength was noted as four out of five on both flexion and extension. Left knee muscle strength was noted as five out of five on both flexion and extension. Joint stability testing yielded normal results bilaterally. No evidence of recurrent patellar subluxation or dislocation was noted bilaterally. No additional conditions were noted. No meniscal conditions or surgical procedures for a meniscal condition were noted bilaterally. No joint replacement procedures were noted bilaterally. The Veteran reported a right knee arthroscopy in 1987 and reported residual pain and stiffness in the right knee. No other pertinent findings were indicated. The Veteran reported the regular use of a right knee brace. In terms of functional impact, the examiner noted that the Veteran’s bilateral knee condition impacts his ability to work as hard and sit or stand for long periods of time. The examiner noted that there are contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the knee joint during flare-ups or repeated use of over time bilaterally. The degree of ROM loss during pain on use or flare-up was estimated as approximately 10 degrees on flexion bilaterally. The Veteran was afforded a VA examination in August 2017. The examiner noted a diagnosis of right knee osteoarthritis and left knee osteoarthritis and meniscectomy. Flare-ups were denied. The Veteran reported that he is unable to traverse stairs, kneel, and squat heavy weight. Initial ROM testing was recorded as right knee flexion and extension to 70 degrees. Left knee flexion and extension were recorded as to 80 degrees. ROM was noted to cause difficulty with motion, result in less movement than normal, and cause difficulty kneeling for prolonged periods of time bilaterally. Pain was noted on flexion and extension bilaterally. Objective evidence of mild pain on palpation was noted bilaterally. Evidence of pain with weight bearing was noted bilaterally. Crepitus was noted bilaterally. No additional loss of ROM was noted on observed repetitive use bilaterally. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. Additional contributing factors were noted as less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength testing revealed muscle strength of four out of five on flexion and five out of five on extension bilaterally. Muscle atrophy and ankylosis were denied bilaterally. A history of recurrent subluxation, lateral instability, and effusion were denied bilaterally. No joint instability was noted bilaterally. Recurrent patellar dislocation, stress fracture, chronic exertional compartment syndrome and any other tibial or fibular impairment were denied bilaterally. The occasional use of a right knee brace was endorsed for support during prolonged walking. Objective evidence of pain when the right knee is used during non-weight bearing was noted, and the same was denied of the left knee. A history of left knee meniscal dislocation and tear was reported with meniscectomy reported in approximately 1986. The use of assistive devices of the left knee was denied. Functional impact was described as difficulty with kneeling, standing, and walking for prolonged periods. Pursuant to the October 2019 Board remand, the Veteran was afforded a VA examination in January 2020. A diagnosis of right knee degenerative arthritis with residuals of previous knee fracture and chondromalacia were noted. A diagnosis of left knee degenerative arthritis with residuals of previous knee fracture, and meniscal tear were noted. Current right knee symptoms of swelling, stiffness and pain were noted. Left knee pain was noted. Flare-ups were specifically denied bilaterally. Right knee functional loss or impairment was noted as pain during prolonged standing. Left knee functional loss or impairment was denied. The examiner noted that initial ROM measurements were unable to be taken bilaterally since accurate measurements were unable to be recorded due to guarding and increased pain. Objective evidence of mild localized tenderness or pain on palpation was noted along the patella due to residuals of a previous fracture bilaterally. Evidence of pain on weight bearing was indicated bilaterally. No additional functional limitation was noted with flare-ups. No additional contributing factors were noted. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to fear of pain. The Veteran was not examined immediately following repetitive use over time. However, pain and lack of endurance bilaterally were noted to significantly limit functional ability with repeated use over a period of time. Limitation described in terms of ROM was recorded as bilateral flexion to 95 degrees and extension from 95 to 0 degrees. The examination was not conducted during a flare-up. Muscle strength testing revealed normal muscle strength bilaterally. Muscle atrophy and ankylosis were denied bilaterally. A history of recurrent subluxation, lateral instability, and effusion were denied bilaterally. No joint instability was noted bilaterally. Bilateral stress fracture not affecting ROM of the ankle was noted. No history of right knee meniscal tear was indicated. However, a right knee meniscectomy in approximately 1985 was noted, which was noted to cause residual increased pain. The examiner noted that the Veteran has a history of left knee meniscal tear, which was shown on a 2008 MRI. A left knee meniscectomy in approximately 1988 was reported, which was noted to cause residual increased pain. The use of assistive devices was denied. In terms of functional impact, the examiner noted that the Veteran has missed up to one week of work time in the past 12 months and that he is unable to stand for prolonged periods of time due to previous fracture bilaterally, osteoarthritis bilaterally, right knee chondromalacia, and left knee meniscal tear. Objective evidence of pain when used during non-weight bearing and on passive ROM was noted bilaterally. With consideration of the DeLuca factors, neither knee manifested flexion that is limited to 30 degrees and neither knee manifested extension that is limited to 15 degrees. Throughout the period on appeal, the VA examiners found that the Veteran experienced pain, weakness, fatigue, and lack of endurance bilaterally, but these factors were considered by the examiners when reporting the ROM of each knee. Thus, a higher rating is not warranted for either knee under the factors set forth in DeLuca. Higher ratings under DC 5257 are not warranted, at any time during the period on appeal, since the evidence does not show recurrent subluxation or lateral instability of either knee. 38 C.F.R. § 4.71a, DC 5257. Higher ratings under DC 5260 are not warranted, at any time during the period on appeal, since the evidence does not show limitation of flexion of either knee to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. Higher ratings under DC 5261, are not warranted, at any time during the period on appeal, since the evidence does not show limitation of extension of either knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Higher ratings under DC 5258 are also not warranted. As the evidence discussed indicates, the clinical evaluations and imaging studies consistently show no joint effusion or dislocation bilaterally. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum of the left or right knee, at any time during the period on appeal, DCs 5256, 5262, and 5263 are not for application in this case. Based on the above, the Veteran is not entitled to a rating in excess of 10 percent for his left or right knee disabilities, at any time during the period on appeal, and the claims are denied. 7. An initial compensable rating, from December 17, 2007 to the present, for scars of the left knee is denied. The Veteran contends that scars of his left knee are worse than that which is contemplated by is current noncompensable rating. The Veteran's scar has been rated throughout the appeal period under DC 7805 (scars, other (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804). DC 7805 states to "[e]valuate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code." The Veteran has scars of the left knee and, therefore, Diagnostic Code 7800 for scars of the head, face, or neck, is not applicable. Under 38 C.F.R. § 4.118, DC 7801, a 10 percent rating is warranted for a scar not of the head, face, or neck that are deep and nonlinear and has an area or area of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.). Under 38 C.F.R. § 4.118, DC 7802, a 10 percent rating is warranted for a scar not of the head, face or neck, that is superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. The Veteran was afforded a VA examination in August 2017. Three scars of the left knee were noted as related to a reported 1986 meniscectomy, the area of each were recording as the following: 1) 1cm x .5cm, 2) 1.5cm x .5cm, and 3) 1cm x .5cm. The scars were not noted to be unstable or painful. The Veteran was afforded a VA examination in October 2018. The examiner noted that the previous right knee scar recordings were in error and the examination was corrected to reflect left knee scarring. The examiner noted a diagnosis of left knee scar. The impacted area was noted to be 3cm x .5cm. The total area was noted as 1.5 square centimeters. The scar was described as painful, resulting in intermittent stabbing pain, not to occur on a daily basis. The examiner noted that the scarring is not unstable. Pursuant to the October 2019 Board remand, the Veteran was afforded a VA examination in January 2020. Three scars of the left knee were noted as measuring as the following: 1) 1cm x .5cm, 2) 1.5cm x .5cm, and 3) 1cm x .5cm. The examiner noted that the scars are not unstable or painful. Given the above examinations, a compensable rating under DC 7801 or 7802 is not warranted, as the scars do not meet the area specifications for a 10 percent rating. As noted above, the scars are not shown to be unstable. Accordingly, a compensable rating under DC 7804 is not warranted. The evidence shows that the scars do not cause any other disabling effects or limitations of function that may be rated under any DCs. There is no other evidence of record that indicated that the Veteran's scars resulted in any disabling effects. Overall, the evidence indicated that the Veteran's scars did not result in any disabling effects and accordingly a compensable disability rating is not warranted under DC 7805. The area is not productive of any limitation of motion or neurological impairment or any other impairment uniquely addressable under rating codes other than those indicated for rating of scars. A compensable rating is not warranted at any time during the period of the appeal. Although the evidence indicates that the Veteran reported occasional, nondaily, pain related to his scars in the October 2018 VA examination, the evidence otherwise indicates that his scars are not painful. Furthermore, throughout the entire period on appeal, his scars have not been characterized as unstable. The record also does not indicate that the scars involve an area of at least 39 square centimeters, or that the scars limit function of the knee. There is no other evidence to consider, the benefit of the doubt is against a claim for an increased rating and, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.