Citation Nr: 21008791 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-54 816 DATE: February 18, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent from that date for the service-connected degenerative disc disease at L4 and L5 S1 and chronic strain of the lumbar spine is denied. Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent from that date for service-connected radiculopathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee is denied. Entitlement to a disability rating in excess of 10 percent, except during the periods of temporary total evaluation from August 28, 2012, to September 30, 2012, and from August 16, 2013, to September 30, 2013, for degenerative arthritis of the right knee is denied. FINDINGS OF FACT 1. Prior to August 25 2016, the degenerative disc disease at L4 and L5 S1 and chronic strain of the Veteran’s lumbar spine was manifested by limited motion still permitting forward flexion to 60 degrees or more and a total range of motion of 120 degrees; from August 25, 2016, the degenerative disc disease at L4 and L5 S1 and chronic strain of his lumbar spine is manifest by limited motion still permitting forward flexion of 60 degrees, and a total range of motion of 130 degrees. 2. Prior to August 25, 2016, the radiculopathy of the Veteran’s left lower extremity is manifest by no more than mild incomplete paralysis and no more than moderate incomplete paralysis from that date. 3. Prior to August 25, 2016, the radiculopathy of the Veteran’s right lower extremity is manifest by no more than mild incomplete paralysis and no more than moderate incomplete paralysis from that date. 4. The Veteran’s left knee degenerative arthritis is manifested by limitation of flexion still permitting flexion to more than 30 degrees. 5. The Veteran’s right knee degenerative arthritis is manifested by limitation of flexion still permitting flexion to more than 30 degrees during the periods where a temporary total evaluation has not been assigned. CONCLUSIONS OF LAW 1. Prior to August 25, 2016, the criteria for a rating in excess of 10 percent for degenerative disc disease at L4 and L5 S1 and chronic strain of the lumbar spine have not been met; from August 25, 2016 the criteria for a rating in excess of 20 percent for this disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 percent for left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 5. The criteria for a rating in excess of 10 percent for right knee degenerative arthritis have not been met during the periods where a temporary total evaluation has not been assigned. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 2004 to October 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in May 2012, August 2013, October 2014, September 2016, and September 2020. During this appeal, the Veteran testified, via video conference, at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. Increased Ratings Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent from that date for the service-connected degenerative disc disease at L4 and L5 S1 and chronic strain of the lumbar spine Prior to August 25, 2016, the Veteran’s lumbar spine condition is rated 10 percent disabling, and it is rated 20 percent disabling from that date. The Veteran seeks an increased rating as to both stages for this disability due to the pain and spasms of his lower back. The Veteran’s lumbar spine degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent 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. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that, during the period preceding August 25, 2016, the preponderance of the evidence is against a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, excess fatigability, and spasms. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence regarding the Veteran’s lumbar spine condition during the period before August 25, 2016, is typified by the VA examination conducted in July 2013. At that examination, the Veteran’s spine demonstrated forward flexion to 75 degrees and a combined range of motion of more than 120 degrees. Although the Veteran complained of spasm, the examiner found no evidence of muscle spasm on the examination and did not find evidence that the Veteran’s claimed spasms resulted in an abnormal gait or spinal contour. Further, the Board finds that, during the period from August 25, 2016, the preponderance of the evidence is against a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, excess fatigability, and spasms. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence regarding the Veteran’s lumbar spine condition during the period since August 25, 2016, is typified by the VA examinations conducted in August 2016 and July 2020. At those examinations, the Veteran demonstrated forward flexion of the lumbar spine to 60 degrees and 75 degrees respectively on initial examination, and even the more severe estimates of the Veteran’s forward flexion after repeated use over time or during flareups still estimate a forward flexion of at least 55 degrees. The Veteran’s spine did not demonstrate spasm that resulted in abnormal gait or spinal contour. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. Regarding neurological impairment, the Veteran is service-connected for radiculopathy of the bilateral lower extremities that are addressed separately in the following sections. The Veteran is also service-connected for neurogenic bladder associated with his service-connected lumbar spine condition. It appears that the Veteran appealed the amount of his award for that condition, received an increased rating in a February 2015 rating and elected not to appeal this aspect of his condition further. Thus, the Board finds that this matter is not before the Board. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to August 25, 2016, and against a rating greater than 20 percent from that date for his service-connected lumbar spine disability. 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. Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity Entitlement to a disability rating in excess of 10 percent prior to August 25, 2016, and to a disability rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity The Veteran’s right and left lower extremity radiculopathies are each rated 10 percent prior to August 25, 2016, and rated 20 percent from that date. The evidence relating to these conditions is quite similar, and they can be treated together. The Veteran maintains that entitlement to disability ratings in excess of 10 and 20 percent during the respective stages is warranted based on the increased pain and numbness that he experiences. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (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. Regarding impairment of motor functions, the medical and lay evidence does not indicate that the Veteran has lost motor functions in either lower extremity or had any change to them. Regarding trophic changes, the Veteran and his wife have both indicated that there may have been changes to the Veteran’s skin on his lower extremities. In a November 2011 statement, the Veteran’s wife described the Veteran as developing sores on his feet. At the time of the July 2020 examinations, the Veteran stated that the skin on his outer thigh and buttocks. However, both August 2016 and July 2020 examiners indicated that there were no actual trophic changes. Also, the Veteran does not appear to have complained of the sores or had them evaluated. Thus, despite the lay evidence indicating possible trophic changes, the balance of the evidence is that there either are no trophic changes that are features of the Veteran’s condition or they are not generally features of his condition. Regarding sensory disturbance, the Veteran has reported mild bilateral paresthesias or dysesthesias and moderate numbness in his bilateral lower extremities and reported decreased sensation in the bilateral lower legs and feet at the July 2013 VA examination. At the August 2016 VA examination, the Veteran demonstrated decreased sensation in the legs, feet, and toes. At the July 2020 VA examination, the Veteran demonstrated moderate paresthesias and dysesthesias and decreased sensation in his bilateral thighs and knees. Regarding loss of reflexes, the Veteran demonstrated normal reflexes throughout the lower extremities at the July 2013 VA examination. At the August 2016 VA examination, the Veteran demonstrated absent reflexes in his ankles bilaterally. At the July 2020 VA examination, the Veteran demonstrated diminished reflexes throughout his lower extremities. Regarding pain, the Veteran has reported pain during the relevant period. In March 2010, the Veteran reported sciatic nerve pain to his toes. However, at the July 2013 and August 2016 VA examinations, the Veteran reported no pain in his lower legs. At the July 2020 VA examination, the Veteran reported moderate pain in both legs. Regarding muscle atrophy, there is no evidence that the Veteran’s condition has resulted in muscle atrophy, and his strength was generally assessed as normal or near normal during all examinations. Also, with regard to complete paralysis, there is no evidence of complete paralysis. Based on the above, the Board finds that, during the period that preceded August 25, 2016, the radiculopathy in each of the Veteran’s lower extremities was manifested primarily by symptoms of pain or other sensory symptoms such as decreased sensation, numbness, or paresthesia and dysesthesia. Additionally, the July 2013 examiner assessed the Veteran had having “mild” radiculopathy in each leg. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis in each leg. However, from August 25, 2016, the Board finds that the evidence is most analogous to a moderate incomplete paralysis in each of his legs. Beginning with the August 25, 2016, examination, the Veteran began to demonstrate symptoms that included more than just sensory, including absent or diminished reflexes, and, on the August 25, 2016, examination, slightly diminished strength. The Board acknowledges the lay assertions of trophic changes, particularly the Veteran’s wife’s report of sores developing on the feet and the Veteran’s report of skin that felt thick and numb. However, given the fact that the sores mentioned by the Veteran’s wife do not appear to have recurred, the Board finds that, at the very least, these sores were not a frequent feature of the Veteran’s condition. The Veteran himself also reported his trophic symptoms conditionally or subjectively, indicating that the skin “felt” thick. This is as likely a report of a sensory alteration as it is a report of a trophic change. Also, the Board finds it instructive that the Veteran was not diagnosed with trophic changes, even on days when he reported them. Consequently, the Board gives more weight to the medical evidence. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Accordingly, in conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the period prior to August 25, 2016, or 20 percent from that date, for either of the Veteran’s lower extremity radiculopathies. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee The Veteran contends that he is entitled to a higher rating because of the increased pain that he feels in his left knee. His left knee degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee degenerative arthritis. The Board acknowledges the Veteran’s lay reports of symptoms and of functional loss due to pain, fatigability, and pain during flare-ups or after repeated use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The most extreme limitation of motion recorded during the appeal period is from the July 2020 VA examination. At that examination, the Veteran still demonstrated a range of motion from 0 to 100 degrees in the left knee. This greatly exceeds the limitation to 30 degrees or less required for a 20 percent evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5256 deals with ankylosis. There is no evidence that the Veteran’s left knee was ankylosed during the appeal period. Diagnostic Code 5257 deals with recurrent subluxation or lateral instability. The Veteran has recently alleged that his knees are “unstable.” The July 2020 VA examination indicates that the Veteran reported that he had very weak, unstable joints. However, none of the Veteran’s medical records have been able to substantiate instability on clinical tests. Consequently, given the nature of the Veteran’s explanation of his instability, paired with weakness, the Board finds that the lay evidence of “instability” is indistinguishable from the Veteran’s complaints of weakness, and, since instability has not been established by clinical testing, a separate rating under this diagnostic code is not warranted. Diagnostic Code 5258 concerns meniscal conditions and their symptoms. However, a separate rating under this diagnostic code is pyramiding. Diagnostic Code 5259 deals with the residuals of a surgical repair of a meniscal tear. The Veteran is already in receipt of an additional rating under this diagnostic code. Diagnostic Code 5261 deals with limitation of extension. However, the evidence of record indicates that the Veteran’s extension has not been limited during the appeal period. Diagnostic Code 5262 and 5363 deal with impairments of the tibia and fibia and genu recurvatum, and the evidence of record does not indicate that the Veteran has had these conditions during the appeal period. The Veteran has also been granted an additional grant of service-connection for a discrepancy in the length of his legs, the left leg being approximately 2.5 centimeters shorter in recent examinations. A compensable disability rating for a shortened lower extremity is only available where one extremity is at least 3.2 centimeters shorter. Consequently, no higher evaluation is available based on the current evidence. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5275. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left knee degenerative arthritis. 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. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee during those periods where a temporary total evaluation has not been assigned The Veteran contends that he is entitled to a higher rating because of the increased pain that he feels in his right knee. His right knee degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee degenerative arthritis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, fatigability, and pain during flare-ups or after repeated use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The most extreme limitation of motion recorded during the appeal period is from a January 2020 VA treatment record where the Veteran’s right knee range of motion was measured from 0 to 115 degrees. At all other examinations, the Veteran demonstrated a greater range of motion, and always demonstrated full flexion. At the July 2020 VA examination, the examiner estimated that the Veteran’s flexion would be limited to 90 degrees during flareups or after repeated use over time, still three times greater than the range of motion required for a 20 percent evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5256 deals with ankylosis. There is no evidence that the Veteran’s right knee was ankylosed during the appeal period. Diagnostic Code 5257 deals with recurrent subluxation or lateral instability. The Veteran has recently alleged that his knees are “unstable.” The July 2020 VA examination indicates that the Veteran reported that he had very weak, unstable joints. However, none of the Veteran’s medical records have been able to substantiate instability on clinical tests. Consequently, given the nature of the Veteran’s explanation of his instability, paired with weakness, the Board finds that the lay evidence of “instability” is indistinguishable from the Veteran’s complaints of weakness, and, since instability has not been established by clinical testing, a separate rating under this diagnostic code is not warranted. Diagnostic Code 5258 concerns meniscal conditions and their symptoms. However, a separate rating under this diagnostic code is pyramiding. Diagnostic Code 5259 deals with the residuals of a surgical repair of a meniscal tear. However, it is not clear from the record that the Veteran has additional symptoms beyond the painful knee that would result in a separate rating under this diagnostic code. The only documented residuals of the right knee meniscal repair are documented on the July 2020 examination where “pain and weakness” are noted residuals. However, under 38 C.F.R. § 4.59, pain and weakness are also symptoms that are compensated under range of motion diagnostic codes. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Thus, under the facts of this case, providing an additional rating under this diagnostic code would simply be compensating some of the same symptoms already contemplated by the range of motion rating. Diagnostic Code 5261 deals with limitation of extension. However, the evidence of record indicates that the Veteran’s extension has not been limited during the appeal period. Diagnostic Code 5262 and 5363 deal with impairments of the tibia and fibia and genu recurvatum, and the evidence of record does not indicate that the Veteran has had these conditions during the appeal period. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee degenerative arthritis during the periods where a temporary total evaluation has not been assigned. 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. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.