Citation Nr: 21007030 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-09 930 DATE: February 8, 2021 ORDER Entitlement to an initial 20 percent rating, but not higher, from July 28, 2009 to May 21, 2012, for lumbosacral spine degenerative joint disease (DJD) and degenerative disc disease (DDD) is granted. Entitlement to a rating in excess of 20 percent from May 22, 2012 to April 1, 2013, for lumbosacral spine degenerative joint disease and degenerative disc disease is denied. Entitlement to a 40 percent rating, but not higher, from April 2, 2013, to August 2, 2020, for lumbosacral spine degenerative joint disease and degenerative disc disease is granted. Entitlement to a rating in excess of 40 percent from August 3, 2020, forward, for lumbosacral spine degenerative joint disease and degenerative disc disease is denied. Entitlement to an initial rating in excess of 10 percent from June 23, 2016 to May 1, 2019, and in excess of 20 percent from May 2, 2019, forward, for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 30 percent from July 28, 2009 to August 2, 2020, and in excess of 40 percent from August 3, 2020, forward, for left knee DJD is denied. Entitlement to a separate 10 percent rating, but no higher, for subjective complaints of left knee instability is granted from April 11, 2011, forward. FINDINGS OF FACT 1. From July 28, 2009 to May 21, 2012, the Veteran’s lumbosacral spine disability was manifested by forward flexion of the thoracolumbar spine at worst to 40 degrees on flare-ups, objective evidence of pain on motion, and abnormal spinal contour (i.e., lumbar flattening). 2. From May 22, 2012 to April 1, 2013, the Veteran’s lumbosacral spine disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. 3. From April 2, 2013, to August 2, 2020, the Veteran’s lumbosacral spine disability was manifested by forward flexion of the thoracolumbar spine 30 degrees or less on flare-ups. 4. Since August 3, 2020, the Veteran’s lumbosacral spine disability was not manifested episodes of IVDS with bed rest prescribed by a physician, or unfavorable ankylosis of the entire thoracolumbar spine. 5. From June 23, 2016 to May 1, 2019 the Veteran’s right lower extremity radiculopathy was mild in degree. 6. Since May 2, 2019, the Veteran’s right lower extremity radiculopathy was moderate in degree. 7. From July 28, 2009 to August 2, 2020, the Veteran’s left knee DJD was not manifested by extension limited to 30 degrees. 8. Since August 3, 2020, the Veteran’s left knee DJD was not manifested by extension limited to 45 degrees. 9. Since April 11, 2011, the Veteran’s left knee DJD was manifested by subjective complaints of instability. CONCLUSIONS OF LAW 1. From July 28, 2009 to May 21, 2012, the criteria for an initial rating of 20 percent, but not higher, for lumbosacral spine DJD and DDD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. 2. From May 22, 2012 to April 1, 2013, the criteria for a rating in excess of 20 percent for lumbosacral spine DJD and DDD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. 3. From April 1, 2013, to August 2, 2020, the criteria for a rating of 40 percent, but not higher, for lumbosacral spine DJD and DDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. 4. From August 3, 2020, forward, the criteria for a rating of in excess of 40 percent for lumbosacral spine DJD and DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. 5. The criteria for an initial rating in excess of 10 percent from June 23, 2016 to May 1, 2019, and in excess of 20 percent from May 2, 2019, forward, for right lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. From July 28, 2009 to August 2, 2020, the criteria for an initial rating in excess of 30 percent for left knee DJD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5024, 5003, 5261. 7. From August 3, 2020, forward, the criteria for a rating in excess of 40 percent for left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5024, 5003, 5261. 8. From April 11, 2011, forward, the criteria for a separate 10 percent rating, but no higher, for subjective complaints of left knee instability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1999 to May 2004. In December 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of that hearing is of record. This matter is before the Board of Veterans’ Appeals (Board) following Board remands in January 2015, August 2017, November 2018, and April 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignments of disability ratings following awards of service connection for service-connected lumbar spine disability, left knee disability, and right lower extremity radiculopathy. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to an initial 20 percent rating, but not higher, from July 28, 2009 to May 21, 2012, for lumbosacral spine degenerative joint disease (DJD) and degenerative disc disease (DDD) is granted. 2. Entitlement to a rating in excess of 20 percent from May 22, 2012 to April 1, 2013, for lumbosacral spine degenerative joint disease and degenerative disc disease is denied. 3. Entitlement to a 40 percent rating, but not higher, from April 2, 2013, to August 2, 2020, for lumbosacral spine degenerative joint disease and degenerative disc disease is granted. 4. Entitlement to a rating in excess of 40 percent from August 3, 2020, forward, for lumbosacral spine degenerative joint disease and degenerative disc disease is denied. Historically, in October 2009 the RO awarded service connection for lumbosacral strain with degenerative changes of the lumbosacral spine and assigned an initial 10 percent rating under Diagnostic Code (DC) 5242, effective July 28, 2009. In a May 2013 rating decision, the RO assigned an increased rating of 20 percent for the Veteran’s lumbosacral strain with degenerative changes of the lumbosacral spine under DC 5242, effective May 22, 2012. More recently, in August 2020 the RO assigned an increased rating of 40 percent for degenerative arthritis of the lumbar spine under DC 5243, effective August 3, 2020. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent 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 this case, the Veteran has already been granted service connection for right and left lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Because the Veteran appealed the initial rating assigned to the Veteran’s right lower extremity radiculopathy, it is addressed separately. On VA examination in September 2009, the Veteran reported daily mild low back pain and flare-ups of severe pain with increased activity every five to six months of three to seven days duration. The Veteran’s impression of the extent of additional limitation of motion or other functional impairment during flare-ups was 50 percent. He reported that he was able to walk one to three miles. On physical examination of the spine, the Veteran had normal posture and gait, no abnormal spinal curvatures, flexion to 80 degrees, extension to 20 degrees, and lateral flexion and lateral rotation all to 30 degrees, and no objective evidence of pain following repetitive motion or additional limitations after repetitive testing. Muscle strength, sensory, and reflex examinations were normal. There was no ankylosis. X-rays demonstrated degenerative changes at L5-S1 and degenerative disc disease (DDD) at T12-L1, L5-S1. The Veteran was diagnosed as having lumbosacral strain as well as degenerative changes and degenerative disc disease of the lumbosacral spine. On VA examination in February 2011, the Veteran reported constant moderate, non-radiating back pain with no flare-ups. He described the pain as occurring 15 times a day, last two to three minutes. The Veteran reported that he was unable to more than 100 yards. On physical examination of the spine, the Veteran had normal posture, lumbar flattening, and antalgic gait secondary to knee condition. Flexion was to 78 degrees, extension to 15 degrees, lateral flexion to 15 degrees, and lateral rotation to 25 degrees, and objective evidence of pain following repetitive motion but no additional limitations after repetitive testing. Muscle strength, sensory, and reflex examinations were normal. The Veteran was diagnosed as having degenerative joint changes and DDD (small herniated nucleus pulposus at L5-S1). MRI in March 2011 showed small right paracentral HNP at the L5-S1 level abutting the S1 nerve root and minimal degenerative change at the lumbosacral junction. The Board finds that the evidence supports the assignment of a 20 percent rating for lumbosacral strain with degenerative changes of the lumbosacral spine from July 28, 2009 to May 21, 2012. In light of the Veteran’s impression of an additional 50 percent decrease in limitation of motion of the spine during flare-ups, forward flexion would be limited to 40 degrees during flare-ups. Further, while guarding was not specifically noted on VA examination in February 2011, there was objective evidence of pain on motion with abnormal spinal curvature, described as lumbar flattening. As such, the Board finds that a 20 percent rating is warranted under DC 5242 from July 28, 2009 to May 21, 2012. From July 28, 2009 to April 1, 2013, the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent for the Veteran’s lumbosacral strain with degenerative changes of the lumbosacral spine. The Veteran was not shown to have any incapacitating episodes of IVDS with prescribed bed rest by a physician. In addition, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Further, there was no evidence of favorable ankylosis of the entire thoracolumbar spine. From April 2, 2013, to August 2, 2020, the evidence supports the assignment of a 40 percent rating for the Veteran’s lumbosacral strain with degenerative changes of the lumbosacral spine. During a private evaluation on April 2, 2013, the Veteran described his pain level as 6-7/10. Forward flexion of his lumbosacral spine was limited to 30 degrees, supporting the assignment of a 40 percent rating under DC 5242. While subsequent private and VA examinations showed improved forward flexion (i.e., to 40 degrees on April 8, 2013; to 60 degrees on VA examination on April 29, 2013; to 50 degrees on VA examination in June 2016; to 55 degrees on VA examination in November 2017; and to 75 degrees on VA examination in May 2019), the Board notes that the Veteran has consistently reported flare-ups of back pain. On VA examination in November 2017, he reported low back pain with-ups with repetitive bending. In May 2019, he stated that when his back "gives out" he must lay flat in bed with inability to walk and has to crawl to the bathroom. He reported flare-ups occurring approximately once a month. The April 2013 VA examiner stated that during flare-ups the Veteran would have loss of functional ability due to back pain and fatigue, but was unable to describe any additional limitation due to pain and fatigue in terms of degrees of additional range of motion loss. Likewise, the November 2017 VA examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The May 2019 VA examiner stated that given her clinical knowledge and medical expertise, there was no rational basis to make a notation regarding any additional losses of function or motion during a flare-up. Given the Veteran’s lay statements describing functional impairment during flare-ups and resolving reasonable doubt in his favor, the Board finds that during flare-ups his lumbar spine forward flexion was limited to 30 degrees or less from April 2, 2013, to August 2, 2020. See 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, from April 2, 2013, forward the preponderance of the evidence is against entitlement to a disability rating in excess of 40 percent for the Veteran’s low back disorder. There have been no complaints or findings of unfavorable ankylosis of the entire thoracolumbar spine at any time, to include on VA examinations in April 2013, June 2016, November 2017, May 2019, and August 2020. Therefore, a 50 percent rating is not warranted under DC 5242. Further, the Veteran has not been shown to have incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The April 2013 and November 2017 VA examiners found that the Veteran had IVDS, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician during the prior 12-month period. The Veteran reported that he had episodes of IVDS that required bedrest on VA examination in May 2019. He reported monthly flare-ups of back pain lasting for several days and stated that when his back “gives out” he must lay flat in bed with inability to walk and has to crawl to bathroom. He stated that he was unable to function due to pain and inability to bear weight and that such required bed rest until episode subsides. In August 2020, he did not specifically report bedrest, but described an intermittent “catch” that occurred with certain movements that brought him to his knees with flare-up of back pain once a year, lasting for three to four days, which resulted in an inability to walk and limits activities of daily living. However, both the May 2019 and August 2020 found that while the Veteran had IVDS, he had no episodes requiring bed rest prescribed by a physician and treatment by a physician for the prior 12-month period. While the Veteran may have voluntarily used bedrest during episodes of IVDS, such was not prescribed by a physician. As such, a 60 percent rating is not warranted under DC 5243, the Formula for Rating IVDS Based on Incapacitating Episodes, from April 2, 2013, forward. As noted above, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran has been awarded a separate, compensable rating for right lower extremity radiculopathy as of June 23, 2016, and for left lower extremity radiculopathy as of May 2, 2019. The Board finds that a separate, compensable rating is not warranted for either lower extremity prior to these dates. On VA examination in September 2009, the Veteran denied any referred pain and neurological examination of his lower extremities was normal. On VA examination in April 2013, the examiner reported that the Veteran had no radicular pain or symptoms due to radiculopathy. And on VA examinations in June 2016 and in November 2017, the Veteran was shown to have radiculopathy of the right lower extremity, but not the left. While there are impressions of L5-S1 radiculopathy in VA treatment records dated as early as August 2012, none of these records identify the lower extremity affected by radiculopathy. Further, none of these records contain any complaints by the Veteran or abnormal findings in either lower extremity. In fact, in June 2014, October 2015, April 2016, November 2016 and August 2017, the Veteran denied any extremity problems and examination of his lower extremities was normal with no pain and full range of movements. As such, the impressions of L5-S1 radiculopathy in the outpatient treatment records are not found to be probative because they are not supported by any subjective complaints or objective findings on examination. In sum, the preponderance of the evidence weighs against entitlement to a separate, compensable rating for right lower extremity radiculopathy prior to June 23, 2016, and against entitlement to a separate, compensable for the left lower extremity radiculopathy prior to May 2, 2019. 5. Entitlement to an initial rating in excess of 10 percent from June 23, 2016 to May 1, 2019, and in excess of 20 percent from May 2, 2019, forward, for right lower extremity radiculopathy is denied. The Veteran’s right lower extremity radiculopathy is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. On VA examination in June 2016, the Veteran reported transient, shooting pain to his right leg. Muscle strength, sensory, and reflex examinations were normal. Straight leg raising was negative, but there was mild intermittent pain of the right lower extremity indicating mild radiculopathy of the right sciatic nerve. On VA examination in November 2017, the Veteran reported radiation of pain into his right lower extremity. There was normal muscle strength, sensory, and reflex examinations. Straight leg raising was positive on the right, and there was mild intermittent pain of the right lower extremity indicating mild radiculopathy of the right sciatic nerve. Based on the above, the Board finds that the Veteran’s right lower extremity radiculopathy from June 23, 2016 to May 1, 2019, was primarily manifested by mild intermittent pain of the right lower extremity. Other than positive straight leg raising, clinical evaluation of his right lower extremity was entirely normal, to include strength, sensation and reflexes. The VA examiners described the radiculopathy of the Veteran’s right sciatic nerve as mild. This evidence does not more nearly approximate moderate incomplete paralysis of the right lower extremity. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. As such, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from June 23, 2016 to May 1, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. On VA examination in May 2019, the Veteran reported shooting pains coming from his lumbar back down both legs with pins and needle sensation. Muscle strength was slightly diminished with hip flexion and knee extension bilaterally (4/5), but full (5/5) and the ankles and toes. There was no muscle atrophy. Sensory and reflex examinations were normal; and straight leg raising was negative. The examiner noted that the Veteran had constant, moderate radicular pain on the right, indicating moderate radiculopathy of the right sciatic nerve. On VA examination in August 2020, muscle strength was slightly diminished with hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension on the right (4/5 throughout); but there was no muscle atrophy. Sensory examination showed decreased sensation at the lower leg/ankle and foot/toes on the right. There were hypoactive deep tendon reflexes (1+/2) at the knee and ankle and positive straight leg raising on the right. The examiner noted that the Veteran had severe intermittent pain, paresthesia and/or dysesthesias, and numbness in the right lower extremity, indicating moderate radiculopathy of the right sciatic nerve. Based on the above, the Board finds that the Veteran’s right lower extremity radiculopathy from May 2, 2019, forward, has been primarily manifested by complaints of severe intermittent pain, paresthesia and/or dysesthesias, and numbness, but only slightly diminished muscle strength, decreased sensation, and reflexes. At worst, muscle strength in the Veteran’s right lower extremity was 4/5 and reflexes were 1+/2. The VA examiners described the radiculopathy of the Veteran’s right sciatic nerve as moderate. This evidence does not more nearly approximate severe incomplete paralysis of the right lower extremity. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. As such, the preponderance of the evidence is against entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy from May 2, 2019, forward. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to an initial rating in excess of 30 percent from July 28, 2009 to August 2, 2020, for service-connected left knee DJD is denied. 7. Entitlement to a rating in excess of 40 percent since August 3, 2020, for service-connected left knee DJD is denied. 8. Entitlement to a separate 10 percent rating, but no higher, for subjective complaints of left knee instability is granted from April 11, 2011, forward. Service treatment records indicate that in December 1999, the Veteran presented to the Emergency Room with report of left knee pain and swelling after running two mines. Physical examination of the left knee revealed very large effusion and mild warmth. The Veteran underwent left knee arthroscopy and excision of left patellar synovial hemangioma. In October 2009, the RO awarded service connection for left knee patellofemoral syndrome and assigned an initial 10 percent rating under Diagnostic Code (DC) 5024, effective July 28, 2009. In December 2019 the RO recharacterized the Veteran’s left knee disability as degenerative joint disease and assigned an increased, 30 percent rating under DC 5010-5261, effective July 28, 2009. In August 2020, an increased rating of 40 percent was assigned under DC 5003-5261, effective August 3, 2020. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5024 provides that such diseases will be rated on limitation of motion of affected parts, as arthritis, degenerative. Diagnostic Code 5003 provides ratings for degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Disabilities of the knees are evaluated pursuant to the criteria within 38 C.F.R. § 4.71a , including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a, Diagnostic Code 5256 provides for a 30 percent rating (and even higher ratings) for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). According to Diagnostic Code 5257, other impairment of the knee, to include recurrent subluxation or lateral instability, provides for a 10 percent rating when there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is evidence of severe recurrent subluxation or lateral instability. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a, Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Under Diagnostic Code 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. Under Diagnostic Code 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. 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. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under Diagnostic Codes 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). On VA examination in September 2009, the Veteran reported pain, stiffness, tenderness, flare-ups of moderate severity with increased activity every five to six months of three to seven days duration. The Veteran reported that he was able to stand up to one hour and walk one to three miles. On physical examination of the left knee, the Veteran had an antalgic gait, subpatellar tenderness, flexion to 130 degrees, normal extension, and no objective evidence of pain following repetitive motion or additional limitations after repetitive testing. The Veteran’s impression of the extent of additional limitation of motion or other functional impairment during flare-ups was 50 percent, so flexion limited to 65 degrees. There was no ankylosis. X-rays demonstrated moderate joint space narrowing at the medial femorotibial compartment. The Veteran was diagnosed as having left patellofemoral syndrome and left pre-patellar synovial hemangioma (benign, remote, resolved). On VA examination in October 2010, physical examination of the left knee demonstrated flexion to 120 degrees, normal extension, crepitus, and objective evidence of pain following repetitive motion but no additional limitation of motion after repetitive testing. X-rays demonstrated degenerative changes and suprapatellar effusion. The Veteran was diagnosed as having left knee DJD. On VA examination in February 2011, the Veteran reported pain on standing with exertion. The Veteran reported that he was able to stand for 15 to 30 minutes and walk no more than 100 yards. On physical examination of the left knee, the Veteran had an antalgic gait, flexion to 125 degrees, normal extension, and objective evidence of pain following repetitive motion but no additional limitations after repetitive testing. There was no ankylosis. MRI demonstrated small effusion with no other significant abnormality. The Veteran was diagnosed as having left knee DJD and patellofemoral syndrome. On VA orthopedic surgery consultation on April 11, 2011, the Veteran reported intense left knee pain, trouble with stairs, trouble getting out of a chair, trouble crouching down, limping, swelling, popping, and instability. The Veteran noted needing a cane for long walks and worsening symptoms with weather changes. X-rays of the left knee showed minimal changes and MRI was basically normal. On physical examination, the left knee was slightly swollen, full range of motion, and no instability. On VA examination on April 29, 2013, the Veteran reported flare-ups of left knee pain with standing or sitting for too long, walking a lot, and walking up an incline. The Veteran also stated that sometimes his left knee gives out; after a sharp pain, his left knee “folds laterally.” On physical examination of the left knee, the Veteran had an antalgic gait, subpatellar tenderness, flexion to 135 degrees, normal extension, and no objective evidence of pain following repetitive motion or additional limitations after repetitive testing. The examiner noted that the Veteran had a peculiar gait that he claimed was caused by knee pain. There was pain on palpation. Muscle strength and joint stability tests were normal. There was no evidence of patellar subluxation or dislocation. The examiner noted that the Veteran would likely show a loss of functional ability due to left knee pain and fatigue but was unable to describe any additional limitation due to pain and fatigue in terms of degrees of additional range of motion loss. The Veteran was diagnosed as having left knee DJD and patellofemoral syndrome. A VA orthopedic evaluation was conducted in June 2014 the Veteran reported constant left knee pain, worse with walking. On examination, there was no redness, heat, or swelling. Flexion was to 105 degrees with normal extension, and range of motion was done slowly with pain on extension. There was no instability and no joint line tenderness. The Veteran was diagnosed as having chondromalacia. On VA examination in September 2014, the Veteran reported left knee pain with standing. The examiner noted that the Veteran walked in a rolling fashion favoring his left leg. On physical examination of the left knee, there was no redness, heat, or swelling. Flexion was to 120 degrees and normal extension. The range of motion was completed slowly with pain with extension. There was no joint line tenderness, no objective evidence of painful motion, and no additional limitations after repetitive testing. There was no pain on palpation. Muscle strength and joint stability tests were normal. There was no evidence of patellar subluxation or dislocation. X-ray showed degenerative changes with progression on the left and small left suprapatellar effusion. On repetitive use testing, there was no loss of range of motion, no increase in pain or fatigability, there was no ataxia, and gait was not changed. The Veteran was diagnosed as having left knee DJD and chondromalacia. Testimony was presented at a videoconference hearing in December 2014 at which time the Veteran testified that he had falling a couple of time getting out of bed because his knees gave out on him a little bit, the left knee specifically. The Veteran testified that his left knee gives way on him maybe once a day. Private treatment records from Mountain State Chiropractic indicate that the Veteran was seen for consultation in October 2015 at which time he reported non-radiating sharp/stabbing, dull/achy pain with bending, lifting, driving, sitting, standing, walking, and inhaling. On VA orthopedic consultation in April 2016, the Veteran’s gait was slightly antalgic. Left knee range of motion was noted to be normal with flexion from 130 to 140 degrees and extension from zero to -5 degrees. Muscle strength was normal, there was no tenderness or crepitation, there was 1+ grinding and negative Lachman’s, Pivot Shift, Varus, Valgus, Posterior Drawer, Apprehension, and Sag. X-rays showed moderate osteoarthritis more advanced than expected for chronological age. On VA examination in June 2016, the Veteran reported left knee pain which interfered with ambulation. On physical examination of the left knee, flexion was to 75 degrees with pain and normal extension. There was pain with weight bearing and objective evidence of generalized tenderness. There was no crepitus, painful motion, and no additional limitations after repetitive testing. Muscle strength testing showed diminished strength with left knee motion; and joint stability testing was not able to be performed due to severe pain. X-ray showed degenerative changes with some progression and minimal suprapatellar effusion. The Veteran was diagnosed as having left knee osteoarthritis. An October 2016 orthopedic surgery attending note indicates that the Veteran reported having braces for his knees which he wore over his clothes four to five days a week. On physical examination, the Veteran had an antalgic gait with limp, significant diminished quadriceps strength, moderate boggy effusion, pain, crepitus, medial and lateral joint line tenderness, flexion to 125 degrees, and normal extension. On VA orthopedic surgery consultation in May 2017, physical examination of the Veteran’s knees showed medial joint line tenderness, no effusions, intact ligaments, and painful full range of motion. On VA examination in November 2017, the Veteran reported left knee pain worse on bending, climbing, and prolonged walking. On physical examination of the left knee, flexion was to 115 degrees with pain and normal extension. There was pain with weight bearing and objective evidence of moderate localized tenderness around the anterior aspect of the left knee. There was no additional limitation of motion after repetitive testing; and the examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Muscle strength testing was normal, there was no ankylosis, and joint stability testing was normal. X-ray showed degenerative changes with some progression and minimal suprapatellar effusion. The Veteran was diagnosed as having left knee osteoarthritis. An orthopedic office clinic note dated in May 2018 by TV Orthopedics indicates that the Veteran reported for initial evaluation of significant pain in his left knee and trouble mechanical symptoms and occasional swelling. The Veteran reported difficulty going up and down stairs, after prolonged sitting, and with kneeling. Physical examination of the left knee revealed no erythema, ecchymosis, or significant effusion. There was some crepitus, full range of motion from 0 to 120 degrees, no instability, nontender calf, and intact neuro vascularity distally. X-rays showed moderate DJD with peripheral osteophytes, joint space narrowing, and squaring of the condyle’s subchondral sclerosis. On VA examination in March 2019, the Veteran reported that his knee gave out and that the doctors wanted to do a total knee replacement but due to his young age, they were hesitant. On physical examination, left knee flexion was to 110 degrees with pain and normal extension; passive range of motion demonstrated flexion to 110 degrees with normal extension. The examiner noted that range of motion itself contributed to a functional loss and more specifically limits flexion required for stooping. There was no pain with weight bearing and no objective evidence of crepitus or localized tenderness. There was no additional limitation of motion after repetitive testing; but the examiner determined that pain and lack of endurance further limited flexion to 105 degrees with repeated use over a period of time. The examiner noted that the Veteran did not have flare-ups. Muscle strength testing was normal, there was no ankylosis, and joint stability testing was normal. On VA examination in May 2019, the Veteran reported left knee pain every day and that his knee “gives out a lot without any indication.” The Veteran stated that if he had to walk or stand up for long periods, he experienced flare-ups including edema and increased pain four to five times a week lasting eight to 12 hours where his knee gives out and he experiences increased pain and edema requiring him to sit until such subsides. On physical examination, left knee flexion was to 100 degrees and extension to 20 degrees with pain on both motions; there was pain (4/10) on palpation to anterior and posterior aspects of patella, pain with weight bearing, and crepitus. There was no additional limitation of motion after repetitive testing; and the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups. Muscle strength testing was slightly diminished, there was no muscle atrophy or ankylosis, and joint stability testing was not able to be conducted although there was no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran reported frequent episodes of joint “locking” and pain due to a left side meniscus condition. The Veteran reported regular use of a brace and a cane for patellofemoral pain syndrome. The Veteran was diagnosed as having left knee patellofemoral pain syndrome. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for left knee disability from July 28, 2009 to August 2, 2020. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating extension limited to 30 degrees, as is required for the assignment of a 40 percent rating under DC 5261. From July 28, 2009 to August 2, 2020, at its worst, the Veteran demonstrated extension limited to 20 degrees in May 2019. Prior to that time, he consistently had full extension of his left knee to 0 degrees. The Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left knee DJD from July 28, 2009 to August 2, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. On VA examination in August 2020, the Veteran reported constant left knee aching pain with rest and sharp pain with activity and certain movements, feeling of instability with knee “giving out” a few times a day, intermittent swelling of the knee mostly in posterior knee that resolves with conservative treatment. The Veteran reported that flare-ups which interfere with weight bearing and activity occurring about three to four times a year and lasting a couple of days at which time the Veteran can hardly put any pressure on the left knee causing him to limp. The Veteran noted that he could not kneel, squat, or crawl on his left knee without pain; and going down inclines hurts it. On physical examination, left knee flexion was to 90 degrees and extension to 20 degrees with pain on both motions; there was moderate diffuse tenderness to the anterior and posterior knee joint on palpation, pain with weight bearing, and crepitus. There was additional limitation of flexion to 75 degrees and extension to 30 degrees after repetitive testing. The examiner noted that pain and lack of endurance caused functional loss with repeated use over a period of time, and the examiner opined that pain caused functional loss with flare ups such that flexion could be limited to 70 degrees and extension to 30 degrees. The examiner noted that the Veteran had an altered gait and pain with ambulation, standing, and weight bearing and required frequent rest periods. There was objective evidence of pain on passive range of motion and when the left knee was used in non-weight bearing. Muscle strength testing was slightly diminished, there was no muscle atrophy or ankylosis, and joint stability testing was normal. The Veteran reported regular use of a brace and occasional use of a cane for patellofemoral pain syndrome. The Veteran was diagnosed as having left knee DJD. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for left knee disability from August 3, 2020, forward. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating extension limited to 45 degrees, as is required for the assignment of a 50 percent rating under DC 5261. The August 2020 examiner concluded that with flare-ups extension of the left knee could be limited to 30 degrees, 15 degrees more that is required for a 50 percent rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for left knee DJD since August 3, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. At no time has the Veteran been shown to have left knee ankylosis; flexion limited to 60 degrees; or dislocation or removal of the semilunar cartilage. Also, while the Veteran has more recently complained of “locking,” he had not been shown to have effusion into the joint. Rather, the evidence has shown suprapatellar effusion. Thus, higher or separate ratings are not warranted pursuant to Diagnostic Codes 5256, 5258, 5259, and 5260. (Continued on the next page)   The Board, however, finds that a separate 10 percent rating is warranted since VA orthopedic consultation on April 11, 2011, for subjective complaints of left knee instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Although objective joint stability tests have not found any joint instability, the Board will assign the Veteran separate 10 percent ratings under Diagnostic Code 5257 for his subjective complaints of left knee instability. As a layperson, the Veteran is competent to testify and report symptoms he observes with his senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, he is competent to report and describe a sensation of instability in his left knee. However, as there is no objective evidence of instability, to include on examination in April 2011 and on numerous, subsequent VA examinations of his knee, the Board concludes that the instability the Veteran experiences is not moderate in degree, such that a rating higher than 10 percent can be awarded. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.