Citation Nr: 21013704 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-34 014 DATE: March 10, 2021 ORDER Prior to May 9, 2017, an initial rating in excess of 10 percent for right knee strain is denied. From May 9, 2017, an initial rating in excess of 30 percent for right knee strain is denied. From May 9, 2017, a separate 10 percent rating, but not higher, for right knee instability is granted. From May 9, 2017, an initial rating in excess of 20 percent for lumbosacral strain is denied. FINDINGS OF FACT 1. During the course of the appeal prior to May 9, 2017, the Veteran’s right knee strain has not been manifested by flexion limited to 30 degrees or less; or compensable limitation of extension; or instability. 2. From May 9, 2017, the Veteran is in receipt of the maximum 30 rating for right knee strain based on limitation of flexion; extension limited to 30 degrees or more and ankylosis of the right knee have not been shown. 3. The Board resolves reasonable doubt in the Veteran’s favor by finding that his right knee is slightly unstable and merits the assignment of a separate 10 percent rating under Diagnostic Code 5257 from May 9, 2017. 4. From May 9, 2017, the Veteran’s lumbosacral strain has not been manifested by forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks. CONCLUSIONS OF LAW 1. During the course of the appeal prior to May 9, 2017, the criteria for an initial disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (2020). 2. From May 9, 2017, the criteria for an initial disability rating in excess of 30 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (2020). 3. From May 9, 2017, the criteria for a separate 10 percent disability rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 4. From May 9, 2017, the criteria for an initial disability rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2020, the Board remanded these matters for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 1.-2. Entitlement to an increased initial rating for right knee strain, rated as 10 percent disabling prior to May 9, 2017, and 30 percent disabling thereafter Service connection for right knee strain (claimed as right knee fracture) was established in an August 2013 rating decision, and assigned a 10 percent initial rating under Diagnostic Code 5260, effective July 13, 2011. The RO noted that the 10 percent rating was granted based on evidence of painful motion pursuant to 38 C.F.R. § 4.59. A May 2017 rating decision assigned an increased rating of 30 percent, effective May 9, 2017. The rating criteria for limitation of motion of the knee are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. 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. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004 (September 17, 2004). A separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis of the knee may be assigned separate ratings for limitation of motion and instability, provided that any separate rating is based upon additional disability); see also 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Under Diagnostic Code 5257 in effect prior February 7, 2021, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. After reviewing the record, including the medical evidence and lay statements, the Board finds that the preponderance of evidence is against assigning a rating in excess of those currently assigned for the right knee strain at any time during the appeal period. The Board also finds that a separate 10 percent rating is warranted based on right knee instability from May 9, 2017. The Veteran underwent VA examinations in August 2013, May 2017 and October 2020. During the August 2013 VA examination, range of motion testing revealed right knee flexion to 105 degrees and full extension. The examiner noted objective evidence of painful motion beginning at 100 degrees flexion, but not with extension, and no additional loss of flexion or extension after repeated use testing or during flare-ups. There was no evidence of ankylosis, instability, patellar subluxation/dislocation, meniscal condition, prior surgery or use of an assistive device noted. The impact on the ability to work was described as being limited to moderate activities such as light jogging or brisk walking and being unable to run on hard surfaces with uneven terrain. During the May 2017 VA examination, range of motion testing revealed right knee flexion to 60 degrees and full extension. The examiner indicated that the Veteran was unable to perform repetitive-use testing during the examination because of extreme pain; and he estimated that during flare-ups, flexion would be limited to 60 degrees, with no additional limitation in extension. The examiner noted contributing factors of disability of instability of station, disturbance of locomotion and interference with sitting, standing, kneeling, bending, climbing and walking. The examiner diagnosed right knee strain and knee instability, and noted that a May 2017 x-ray revealed minimal patellar spurring of the right knee but did not document arthritis. The examiner noted a history of slight recurrent subluxation and slight lateral instability, and constant use of a right knee brace; joint stability testing of the right knee showed abnormal anterior and posterior stability test findings but normal medial and lateral stability findings. The examiner noted frequent episodes of joint locking, pain and effusion of the meniscus, described as stiffness and locking, followed by swelling, but no meniscal diagnosis or condition was indicated. Objective evidence of pain was noted on passive range of motion and non-weight bearing testing of the right knee. The impact on the ability to work was described as interference with standing, climbing, walking, bending and kneeling. During the October 2020 VA examination, range of motion testing revealed right knee flexion limited to 40 degrees due to moderate pain in the lateral, medial condyle of the patella, and full extension. The examiner observed that pain limited right knee flexion to 35 degrees during repetitive use testing; 30 degrees after repeated use over time; and 25 degrees during flare-ups. Extension was normal throughout testing. The examiner noted contributing factors of disability of disturbance of locomotion and interference with standing, walking, kneeling, climbing and running due to pain and stiffness. The examiner diagnosed right knee strain. Joint stability testing could not be performed during the examination due to pain. The examiner noted a history of recurrent effusion, described as swelling at the end of the day, and that the Veteran constantly wears bilateral knee braces to help with stabilization. Instability testing was not accomplished due to knee pain. Objective evidence of pain was noted on passive range of motion and non-weight bearing testing of the right knee. The impact on the ability to work was described as bilateral knee pain with decreased range of motion that interferes with walking 2 blocks, climbing 3 flights of stairs, kneeling and being unable to run. Prior to May 9, 2017 For the period prior to May 9, 2017, even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, the preponderance of probative evidence does not support a rating in excess of 10 percent based on limitation of motion. See DeLuca, 8 Vet. App at 206; 38 C.F.R. §§ 4.40, 4.45. To merit the assignment of the next highest rating (20 percent) under Diagnostic Code 5260, the evidence must show flexion limited to 30 degrees or less. However, at no time prior to May 9, 2017 has the right knee exhibited flexion limited to 45 degrees to support even a 10 percent rating under Diagnostic Code 5260. Rather, at worse, the right knee exhibited flexion to 105 degrees during the August 2013 VA examination. Treatment records prior to May 9, 2017 reflect right knee complaints and findings consistent with those noted during the August 2013 VA examination, including reports of worsening right knee pain with activity, full range of motion and no ligamentous laxity or effusion. See February 2012 and June 2012 VA treatment records. The Board has reviewed and considered the Veteran’s subjective complaints in support of his claim and the effects of pain on his functional abilities, including his reports during the August 2013 VA examination of right knee pain with movement, such as running, walking and standing; increased problems with the right knee over the past 5 years; occasional swelling; and flare-ups of occasional sharp pain in the patella during which he has to stop walking for a few seconds. The Board also acknowledges that the August 2013 VA examiner found tenderness to palpation of the right knee and functional impairment of less movement than normal and pain on movement, noted as 5 degrees less flexion (to 100 degrees) after repetitive use testing, but not with extension. However, the examiner indicated there was no decrease in range of motion due to pain, weakness, fatigue or lack of endurance after three repetitions or during flare-ups. Additionally, while VA treatment records prior to May 9, 2017 show complaints of pain with activity, they also show the Veteran reported his right knee pain did not limit functioning. See February 2012, June 2012 and November 2014 VA treatment records. The Veteran’s limitation of motion of the right knee has not risen to a compensable level under Diagnostic Code 5260 or 5261. Further, the functional impairment and effects of pain exhibited by the right knee disability were considered by the RO in the assignment of the 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also Thompson, 815 F.3d at 786 (“[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.”); Mitchell, 25 Vet. App. 32 (finding that limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). Thus, the current 10 percent rating assigned prior to May 9, 2017 contemplates the functional impact arising from the objective findings and the Veteran’s subjective complaints of painful motion. Accordingly, a higher or separate rating based on limitation of flexion and/or extension is not warranted at any time prior to May 9, 2017. The Board has considered whether a separate rating is warranted for right knee instability for the period on appeal prior to May 9, 2017. However, anterior, posterior, medial, and lateral joint stability tests were normal during the August 2013 VA examination, and the examiner indicated there was no evidence of recurrent subluxation or lateral instability. Further, although VA treatment records during the appeal period prior to May 9, 2017 indicate that the Veteran wore a neoprene sleeve on his right knee and a November 2014 VA treatment record notes that the Veteran reported feeling his knee might give out when climbing stairs, the Veteran denied his right knee giving way in multiple other treatment records, and no laxity of the right knee joint was shown during the medical treatment. See February 2012, February 2012, June 2012, January 2014 and November 2014 VA treatment records. Accordingly, a separate rating for right knee instability is not warranted for the period on appeal prior to May 9, 2017. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. From May 9, 2017 For the period beginning May 9, 2017, even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, the Board finds that the preponderance of probative evidence does not support a rating in excess of 30 percent. See DeLuca, 8 Vet. App at 206; 38 C.F.R. §§ 4.40, 4.45. The Veteran is already in receipt of the maximum rating available for right knee limitation of flexion beginning May 9, 2017, and right knee extension has consistently been shown as normal throughout the appeal period. Thus, a higher rating based on limitation of flexion is not available under Diagnostic Code 5260, and a separate or higher rating based on limitation of extension is not warranted under Diagnostic Code 5261. The Board has reviewed and considered the Veteran’s subjective complaints in support of his claim and the effects of pain on his functional abilities, including pain, inflammation, difficulty bending and treatment with ice and ibuprofen, as reported during the January 2020 Board hearing; worsening and continued sharp pain located directly over the patella, intermittent bouts of inflammation, an increase in the frequency and intensity of flare-ups of pain, swelling that last 2 to 3 days, and interference with standing, climbing, walking, bending and kneeling, as reported during the May 2017 VA examination; and continuous pain, inflammation, difficulty with activity due to pain, limping, severe flare-ups, especially when the right knee is swollen, last 3 to 5 days and are alleviated with ibuprofen, and interference with walking, standing, bending, kneeling and climbing, as reported at the October 2020 VA examination. The Board notes that treatment records from May 9, 2017, are consistent with the findings and complaints noted on the May 2017 and October 2020 VA examination reports, including reports of chronic right knee pain, relieved with physical therapy exercises and anti-inflammatory medication; and the use of a right knee neoprene sleeve. See September 2014, November 2014, August 2018, January 2018 and January 2020 VA treatment records. The weight of the evidence does not, however, show additional limitation of motion or functional loss that is not contemplated by the currently assigned 30 percent rating. See Thompson, 815 F.3d at 785; Mitchell, 25 Vet. App. 32. After reviewing the evidence of record, and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to a separate 10 percent rating for mild right knee instability from May 9, 2017 under Diagnostic Code 5257. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In support of this determination, the Board notes that the May 2017 VA examiner diagnosed right knee instability, noted a history of slight recurrent subluxation of the right knee and slight lateral instability, and indicated instability of station as a contributing factor of disability; during the October 2020 VA examination, the Veteran reported a tendency to lose his stability; during the January 2020 Board hearing, the Veteran reported he constantly wears a knee brace to stabilize his knee and keep the knee from going sideways; and VA treatment records note the consistent use of a right knee brace or neoprene sleeve. Thus, a 10 percent rating for recurrent subluxation or lateral instability under Diagnostic Code 5257 is warranted. In sum, the preponderance of medical evidence is against finding that an increased rating for the right knee disability is warranted at any time during the appeal, and the claim for a rating in excess of 10 percent for right knee strain prior to May 9, 2017, and in excess of 30 percent thereafter, is denied. After resolving all doubt in favor of the Veteran, the Board finds that a separate 10 percent rating based on right knee instability is warranted from May 9, 2017. The Board has considered the revised version of Diagnostic Code 5257 effective February 7, 2021 to determine whether a higher rating is warranted under the new criteria. However, the evidence does not show a diagnosed condition involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon) with recurrent instability; incomplete ligament tear or repaired complete ligament tear causing persistent instability; or unrepaired or failed repair of complete ligament tear causing persistent instability. Thus, the revised criteria do not warrant a higher rating for instability. 3. Entitlement to an increased initial rating for lumbosacral strain, rated as 20 percent disabling from May 9, 2017 Service connection for lumbosacral strain was established in an August 2013 rating decision and assigned a noncompensable rating, effective July 13, 2011. A May 2017 rating decision assigned a 20 percent initial rating, effective May 9, 2017. A June 2020 Board decision granted a 20 percent initial rating prior to May 9, 2017, and remanded entitlement to an initial rating in excess of 20 percent from May 9, 2017. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). The Veteran’s lumbosacral strain is currently rated as 20 percent disabling from May 9, 2017 under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Ratings in excess of 20 percent pertinent to the lumbosacral spine are provided for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); or for unfavorable ankylosis of the entire thoracolumbar spine (50 percent). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, Intervertebral Disc Syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides, in pertinent part, a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The Veteran seeks a higher initial rating for his lumbosacral sprain for the period on appeal beginning May 9, 2017, asserting, in essence, that his symptoms present a greater degree of impairment than is reflected in the currently-assigned 20 percent rating. During the January 2020 Board hearing, the Veteran testified to experiencing back muscle spasms and locking; that his back bothers him with any type of movement; that his back has resulted in bed rest “once in a while” and at least two times in the previous year, which last up to one and one-half hours; and that he treats his symptoms with anti-inflammatory medication and constantly wears a back brace. During the May 2017 VA examination, the Veteran reported experiencing worsening and more frequent low back cramping and muscle spasms that occur when he is active, such as bending forward, backward and sideways, which last approximately one-half hour; he reported he did not experience flare-ups and did not report any functional impairment due to his back disability. During the October 2020 VA examination, the Veteran reported back pain, which is almost always present and increases with movement, and flare-ups of pain that occur “once in a while,” during which he has difficulty bending over and getting up. He described his back pain at level 4 daily and 5-10 during flare-ups. He could not identify any precipitating factors for the flare-ups and stated he “just feels the pain increase” and that he alleviates his symptoms with ibuprofen and rest. The Board has reviewed the evidence of record, including but not limited to the May 2017 and October 2020 VA examination reports, the Veteran’s statements and treatment records. After considering the evidence before it, the Board finds that the preponderance of evidence is against assigning an initial rating in excess of 20 percent for the period from May 9, 2017. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran was able to achieve flexion to 50 degrees during the May 2017 examination and flexion to 60 degrees during the October 2020 VA examinations. Further, both examiners noted there was no evidence of ankylosis, and the October 2020 VA examiner commented that there was no change in diagnosis. See May 2017 and October 2020 VA examination reports. The treatment records from May 9, 2017 do not document any range of motion test findings pursuant to VA regulations, nor indicate evidence of ankylosis. The Board has considered functional impairment and the effects of pain on the Veteran’s functional abilities due to his lumbosacral strain. The Board acknowledges the Veteran’s subjective complaints made in written statements and during Board testimony, medical treatment and VA examination, as discussed above, notably back pain, muscle spasms and impaired movement, described as difficulty bending, climbing, lifting, running and sitting, and walking and standing for prolonged periods; and constant use of a back brace. In this case, the Board does not find any additional functional loss that is not contemplated by the current 20 percent rating. The Board acknowledges that the May 2017 and October 2020 VA examiners noted pain on examination with flexion, extension, and right and left lateral flexion and rotation and objective evidence of mild tenderness to palpation of the lumbar spine and pain on passive range of motion testing and non-weight bearing testing. However, during the May 2017 VA examination, the Veteran was able to perform repetitive use testing with no additional loss of forward flexion (50 degrees), including after repeated use during, and he did not report flare-ups or experiencing any functional loss. Further, while the Veteran described additional motion loss or functional impairments during flare-ups during the January 2020 Board hearing and the October 2020 VA examiner noted increased pain at the end point of range of motion testing that prevented further movement in forward flexion of 55 degrees after repetitive use testing, 50 degrees estimated after repeated use and 40 degrees estimated during flare ups, such still shows motion in excess of the 30 degrees needed to support the assignment of a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5237; see also Thompson, 815 F.3d at 785 (“[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.”); Mitchell, 25 Vet. App. 32 (finding that limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). Treatment records for the period from May 9, 2017 reflect symptoms and findings consistent with those noted on the May 2017 and October 2020 VA examinations reports. These include, for example, chronic but stable lower back pain without recent acute exacerbation and use of a back brace, as noted in April 2018, July 2018, February 2019 and January 2020 VA treatment records; and denial of functional impairment due to the low back condition, as noted in a January 2020 VA treatment record. Thus, in light of these findings, the Board finds that an initial rating in excess of 20 percent for the Veteran’s lumbosacral strain for the period from May 9, 2017 is not warranted based on functional impairment. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board also finds that an increased rating is not warranted under the IVDS Formula. The medical evidence shows the Veteran is not diagnosed with IVDS of the thoracolumbar spine, as reflected on the May 2017 and October 2020 VA examination reports. While the May 2017 VA examiner noted the Veteran reported a medical history of IVDS and claimed to have back pain at least twice per week that was relieved by massage and resting for 6 hours, the examiner noted that this was based on the medical history as described by the Veteran and was without medical documentation, and the treatment records do not otherwise show a diagnosis of IVDS or associated treatment. Moreover, the record does not show incapacitating episodes that have lasted a duration of at least 4 weeks during the prior 12 months, and there is no indicated from the available medical evidence of record that the Veteran has been prescribed bed rest by a physician at any time during the appeal. Finally, as the record does not indicate the presence of any associated objective neurologic abnormalities, a separate or higher rating for neurologic abnormalities is not warranted. See May 2017 and October 2020 VA examination reports. As a final matter, the Board notes that the change to Diagnostic Code 5243 effective February 7, 2021 states that the criteria should be applied for intervertebral disc syndrome only when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the evidence does not reflect that the Veteran suffers from lumbosacral disc herniation, the revised criteria is not applicable. In sum, the preponderance of probative evidence is against a rating in excess of 20 percent for the lumbosacral strain for the period from May 9, 2017, and the claim for an increased initial rating is denied. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against assigning ratings in excess of those currently-assigned for the right knee and lumbosacral spine disabilities, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). After resolving reasonable doubt in the Veteran’s favor, a separate 10 percent rating for right knee instability is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.