Citation Nr: 21014976 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-05 368 DATE: March 16, 2021 ORDER Entitlement to a separate disability rating of 10 percent, but no more, for left knee subluxation is granted on and after November 28, 2014, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 20 percent for left knee patellar tendonitis with degenerative arthritis is denied. Entitlement to a disability rating in excess of 40 percent for lumbar spine sprain with degenerative arthritis is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s left knee patellar tendonitis with degenerative arthritis was manifested as limitation of extension to 10 degrees and slight recurrent subluxation, but not ankylosis, limitation of flexion to 45 degrees, limitation of extension to 20 degrees, lateral instability, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. 2. For the period on appeal, the Veteran’s lumbar spine sprain with degenerative arthritis was manifested as limitation of forward flexion to 30 degrees, but not unfavorable ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, on and after November 28, 2014, the criteria for a separate rating of 10 percent, but no higher, for left knee subluxation have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 2. The criteria for a disability rating in excess of 20 percent for left knee patellar tendonitis with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261 (2020). 3. The criteria for a disability rating in excess of 40 percent for lumbar spine sprain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes 5242-5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 2008 to March 2013. The Veteran testified before the undersigned Veterans Law Judge during an October 2017 hearing. These matters are on appeal from a January 2015 rating decision. The issues listed on the title page were previously remanded by the Board in January 2018 to afford the Veteran additional VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. In an October 2018 decision, the Board denied the Veteran’s claims with regard to the issues listed on the title page. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties agreed to vacate the Board’s decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in July 2019. These claims were remanded again by the Board in January 2020 to afford the Veteran additional VA medical opinions.  The Board found that those opinions did not answer the questions posed by the Board and remanded the claims again in a November 2020 decision to afford the Veteran additional VA medical opinions. The AOJ did so in December 2020. In a February 2021 statement, the Veteran’s representative contended that the rationales for the December 2020 opinions were unclear. The December 2020 medical opinions are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they described the physical effects of medications taken for his left knee and low back symptoms in detail sufficient to allow the Board to make fully informed determinations.  There was therefore substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).   Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed.  Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2020).   Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect for these disabilities during the entire appeal period. 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.”). 1. Left Knee Subluxation 2. Left Knee Patellar Tendonitis with Degenerative Arthritis The Veteran contends that his left knee patellar tendonitis with degenerative arthritis warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261, with a 20 percent rating on and after March 5, 2013. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). Diagnostic Code 5003 pertains to degenerative arthritis and Diagnostic Code 5261 pertains to limitation of leg extension. VA received the Veteran’s claim for an increased rating on November 28, 2014. Diagnostic Code 5003 provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the knee is considered a major joint. 38 C.F.R. § 4.45. As the Veteran is already in receipt of a 20 percent rating based on limitation of motion throughout the period on appeal, a rating under Diagnostic Code 5003 is not applicable. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2020) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2020). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). The Veteran was afforded a VA examination in January 2015. The clinician diagnosed tendonitis of the left knee. The Veteran reported worsening daily left knee pain and that it interfered with exercise, prevented running, and limited walking to one block. He denied any flare ups. On examination, range of motion was reported as 10 degrees of extension to 80 degrees of flexion, but the range of motion did not itself contribute to functional loss. Pain was noted on flexion but did not cause functional loss. There was no tenderness or pain to palpation. There was no additional loss of function or range on repetition. The clinician noted that the examination was not after repetition over time but opined that those factors would not significantly limit functional ability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. On examination, there was no anterior, posterior, medial, or lateral instability. There was no tibial or fibular impairment. There was no history of meniscal conditions. The Veteran did not report using any assistive devices. The clinician found that the Veteran’s left knee disability would have no impact on his ability to work. During a September 2015 VA treatment appointment, the Veteran reported that he did not feel he had any restrictions with walking or lifting. On examination, range of motion was reported as intact with no effusion. During his October 2017 Board hearing, the Veteran testified that he did not walk long distances or climb stairs due to knee pain. He also testified that he felt his knee sometimes bent backward. He denied any history of left knee surgery. The Veteran was afforded an additional VA examination in June 2018. The clinician diagnosed Osgood-Schlatter’s syndrome and patellar tendonitis of the left knee. The Veteran reported exertional knee pain several times a week. The Veteran denied any flare ups or functional impairment. On examination, range of motion was reported as 0 degrees of extension to 100 degrees of flexion, but the range of motion did not itself contribute to functional loss. Pain was noted on flexion but did not cause functional loss. There was no evidence of pain with weight bearing or of tenderness or pain on palpation. There was no objective evidence of crepitus. There was no additional loss of motion on repetition. The clinician indicated that the examination was immediately after repetitive use over time and that this caused no significant limitation. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation. Joint stability testing was normal. There was no tibial or fibular impairment or any history of a meniscal condition. The Veteran did not report using any assistive devices. The clinician found that the Veteran’s left knee disability would have no impact on his ability to work. The clinician added that there was no pain with passive range of motion or with non-weight-bearing use of the left knee. The Veteran was afforded an additional VA examination in February 2020. The clinician diagnosed left knee tendonitis or tendinosis and knee joint osteoarthritis. The Veteran reported worsening left knee pain over the years. He also reported weekly flare ups that he characterized as severe and lasting for days, precipitated by overuse. He also reported functional impairment in the form of inability to sit, stand or walk for more than thirty minutes without resting due to pain. On examination, range of motion in the left knee was reported as 0 degrees of extension to 100 degrees of flexion. The range of motion did not itself contribute to functional loss. Pain was noted on flexion and extension but did not cause functional loss. There was no objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. There was no additional loss of range on repetition. The clinician found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that, under those circumstances, pain would further limit the range of motion to 0 degrees of extension to 90 degrees of flexion. The clinician also found that the examination was medically consistent with the Veteran’s statements describing functional loss with flare ups and that, under those circumstances, pain would further limit the range of motion to 0 degrees of extension to 70 degrees of flexion during flare-ups. Disturbance of locomotion and interference with sitting and standing were additional factors contributing to disability. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis and the clinician found no history of recurrent subluxation, effusion, or instability. Anterior, posterior, medial, and lateral stability testing was normal. There was no tibial or fibular impairment. There was no history of a meniscal condition. The Veteran did not report using any assistive devices. The clinician also noted that there was no evidence of pain on passive range of motion testing or on non-weight bearing. The clinician also opined that it was impossible to articulate what the Veteran’s range of motion would be absent the effects of medication. In a November 2020 decision, the Board found this rationale inadequate and requested an additional opinion by a different clinician, which the Veteran was afforded in December 2020. The December 2020 VA clinician opined that, absent the effects of medication, the Veteran would have increased pain with decreased ability to flex the knee, with a probable range of motion of 10 degrees of extension to 80 degrees of flexion. The clinician’s rationale for this opinion was that the Veteran’s medications are anti-inflammatory, meaning that they help to suppress the inflammation of arthritic changes and tendonitis, and that his range of motion has improved over time with ongoing treatment with medication. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. As of February 7, 2021, under the amended criteria, a compensable rating for knee subluxation requires that subluxation be the result of a ligament tear. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Because the record contains no evidence of a ligament tear, these criteria are less favorable to the Veteran and the old criteria will be used throughout the period on appeal. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left knee subluxation warrants a separate 10 percent rating throughout the period on appeal. The Veteran testified that his knee sometimes bends backward but no examiner or treatment provider has found subluxation and stability testing during the period on appeal has found no instability. Diagnostic Code 5257 does not require objective medical evidence of subluxation or lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee subluxation, the Board finds that a separate 10 percent rating is warranted for slight subluxation of the left knee. The Veteran’s knee subluxation is not more accurately described as moderate. The medical records do not describe subluxation or instability of the knee joint and VA examiners have found that the knee joint is normal on all stability tests. The Board finds that knee subluxation that causes functional impairment but is undetectable on all forms of examination is best characterized as slight. Additionally, the VA examiners have consistently found that there was no history of lateral instability or recurrent subluxation. The preponderance of the evidence described above also shows that the Veteran’s left knee patellar tendonitis with degenerative arthritis does not warrant a rating in excess of 20 percent under Diagnostic Code 5261. A 30 percent rating under Diagnostic Code 5261 requires limitation to 20 degrees. No examiner or treatment provider has found that the Veteran’s left leg extension has been limited to less than 10 degrees during this period, including with the effects of repetition over time or flare ups or absent the effects of medication. The preponderance of the evidence described above also shows that the Veteran’s left knee patellar tendonitis with degenerative arthritis does not warrant a separate rating under Diagnostic Code 5260. The Veteran is already compensated for painful movement of his left knee joint in his rating under Diagnostic Code 5261. A 10 percent rating under Diagnostic Code 5260 requires limitation to 45 degrees. No examiner or treatment provider has found that the Veteran’s left leg flexion has been limited to less than 70 degrees during this period, including with the effects of repetition over time or flare ups or absent the effects of medication. The preponderance of the evidence also shows that the Veteran’s left knee disability was not manifested by ankylosis, a meniscal condition, or impairment of the tibia or fibula during this period. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his left knee disability and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has accepted those statements as the basis for granting a separate 10 percent rating for subluxation of the left knee. However, nothing in the Veteran’s lay statements provides a basis for assigning higher ratings than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain or any other DeLuca factor causes functional impairment equivalent to the criteria for ratings in excess of those already in effect or assigned herein. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. 3. Lumbar Spine Sprain with Degenerative Arthritis The Veteran contends that his lumbar spine sprain with degenerative arthritis warrants a rating in excess of 40 percent. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, with a 20 percent rating from March 5, 2013 to November 27, 2014 and a 40 percent rating on and after November 28, 2014. Diagnostic Code 5242 pertains to degenerative arthritis of the spine and Diagnostic Code 5237 pertains to lumbosacral or cervical strain. VA received the Veteran’s claim for an increased rating on November 28, 2014. Diagnostic Code 5237 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Diagnostic Code 5242 provides for rating under the General Formula or under 38 C.F.R. § 4.71a, Diagnostic Code 5003 for arthritis. As Diagnostic Code 5003 provides for a compensable rating only if one is not available under the General Formula, it is not applicable to this case. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). Under the General Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). For VA rating purposes, 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). The Veteran was afforded a VA examination in January 2015. The clinician diagnosed lumbosacral strain and degenerative arthritis of the spine. The Veteran reported he could not “bend that much” and that he had daily pain. He denied flare ups. On examination, thoracolumbar motion was reported as 50 degrees of forward flexion, 20 degrees of extension, 20 degrees of right lateral flexion, 30 degrees of left lateral flexion, and 30 degrees of right and left lateral rotation. The clinician found that limited flexion and extension caused functional loss and that pain on forward flexion and extension also caused functional loss. There was no evidence of pain with weight bearing and there was no tenderness or pain on palpation. On repetition, there was no additional loss of function or range of motion. The clinician indicated that the examination was not immediately after repetitive use over time but that there would be no additional functional limitation with repetitive use over time. There was no muscle spasm or guarding, but there was localized tenderness not resulting in abnormal gait or spinal contour. There was no muscle atrophy and muscle strength was normal. Reflexes were normal. Sensory examination was normal. There was no radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran did not report using any assistive devices. The clinician did not opine as to the functional impact of the Veteran’s lumbar spine disability. During a September 2015 VA treatment appointment, the Veteran reported that he did not feel he had any restrictions with walking or lifting. On examination, range of motion was reported as intact. The treatment provider noted that the Veteran carried a large backpack to the appointment. In his September 2015 Notice of Disagreement (NOD), the Veteran contended that “[r]easonable doubt should have been applied for numbness/tingling,” but he did not report numbness or tingling and he had not done so at any prior point during the period on appeal. During his October 2017 Board hearing, the Veteran testified that his low back symptoms had worsened and prevented him from standing for long periods or lifting anything heavy. He denied any history of low back surgery. He did not describe radiating pain, numbness, tingling, or other symptoms in his lower extremities. The Veteran was afforded an additional VA examination in June 2018. The clinician diagnosed lumbosacral strain and degenerative arthritis of the spine. The Veteran reported exertional back pain several times a week. He denied any flare ups or functional impairment. On examination, thoracolumbar motion was reported as 70 degrees of flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion, 20 degrees of right lateral rotation, and 30 degrees of left lateral rotation. There was no pain during range of motion testing. The loss of motion did not itself contribute to functional loss and there was no pain noted on examination. There was no evidence of pain with weight bearing or tenderness with palpation. There was no additional loss of function on repetition. The clinician indicated that the examination was immediately after repetitive use over time and that this caused no significant limitation. There was no guarding or muscle spasm. There was no muscle atrophy or reduction in muscle strength. Reflexes and sensory examination were normal. The Veteran did not have radicular pain and his straight leg raising test was negative bilaterally. There was no radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The clinician characterized the functional limitation of the Veteran’s lumbar spine as limiting walking to one block on level ground and lifting and carrying to 25 pounds. The clinician noted that both passive and active range of motion were assessed and that there was no pain or change in passive range of motion in the supine position or active range of motion in the upright weight bearing position. The Veteran was afforded an additional VA examination on February 11, 2020. The clinician diagnosed lumbosacral strain and degenerative arthritis of the spine. The Veteran reported worsening back pain over the years. He also reported daily flare ups that he characterized as severe, lasting for days, and precipitated by overuse. He also reported functional impairment in the form of inability to walk for long periods of time due to pain. On examination, thoracolumbar motion was reported as 40 degrees of flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion, and 20 degrees of right and left lateral rotation. The range of motion did not itself contribute to functional loss. There was pain on forward flexion, extension, right and left lateral flexion, and right and left lateral rotation, but it did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation. There was no evidence of pain with weight bearing. There was no additional loss of function on repetition. The clinician found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that, under those circumstances, pain, weakness, fatigability or incoordination would further limit the range of motion to 35 degrees of forward flexion, with all other ranges remaining the same. The clinician also found that the examination was medically consistent with the Veteran’s statements describing functional loss with flare ups and that, under those circumstances, pain would further limit the range of motion to 30 degrees of forward flexion, 15 degrees of extension, 15 degrees of right and left lateral flexion, and 15 degrees of right and left lateral rotation. There was guarding and muscle spasm, but not resulting in abnormal gait or abnormal spinal contour. Disturbance of locomotion and interference with sitting and standing were additional factors contributing to disability. There was no muscle atrophy or reduction in muscle strength. Reflexes and sensory examination were normal. Straight leg raising tests were positive in both legs and the Veteran reported mild constant and mild intermittent pain in both legs, with no other signs or symptoms of radiculopathy. The clinician found that both sciatic nerves were affected and that the severity of radiculopathy was mild in each leg. There were no other neurologic abnormalities and there was no ankylosis or IVDS. The Veteran did not report using any assistive devices. The clinician characterized the functional limitation of the Veteran’s lumbar spine as inability to sit, stand or walk for more than 30 minutes without resting or changing positions due to pain. The clinician noted that there was no evidence of pain on passive range of motion testing or non-weight bearing testing. The clinician also opined that it was impossible to articulate what the Veteran’s range of motion would be absent the effects of medication. In a November 2020 decision, the Board found this rationale inadequate and requested an additional opinion by a different clinician, which the Veteran was afforded in December 2020. The December 2020 VA clinician opined that, absent the effects of medication, the Veteran would likely have increased pain but no significant change in his range of motion. The clinician’s rationale for this opinion was that the Veteran’s medications are anti-inflammatory, meaning that they help to suppress the inflammation of arthritic changes, but that his range of motion has been noted to be limited since his separation from active duty service in 2013. The preponderance of the evidence described above does not show that the Veteran’s lumbar spine sprain with degenerative arthritis warrants a rating in excess of 40 percent. Given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the thoracolumbar spine as defined above. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 92 (33rd ed. 2020). In addition, no examiner or treatment provider has found unfavorable ankylosis of the entire thoracolumbar spine and the Veteran’s symptoms are not analogous to unfavorable ankylosis of the entire thoracolumbar spine as defined above. The Board has additionally considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. There is no evidence of a diagnosis of IVDS or of incapacitating episodes having a duration of at least six weeks in twelve months during the period on appeal. For this reason, a rating in excess of 40 percent based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his low back disability and his descriptions are credible. See Jandreau, 492 F.3d at 1376-77. However, nothing in the Veteran’s lay statements provides a basis for assigning a higher rating because the Veteran does not report unfavorable ankylosis of the entire thoracolumbar spine. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to unfavorable ankylosis, including with the effects of repetition over time or flare ups or absent the effects of medication. “Unfavorable ankylosis” is defined as “a condition in which the entire cervical spine, 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.” 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). None of these situations are present. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Any associated objective neurologic abnormalities caused by the Veteran’s low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). The Veteran’s radiculopathy of the left and right lower extremity are separately service connected with 10 percent ratings for each leg under Diagnostic Code 8520 for the sciatic nerve on and after February 11, 2020. This contemplates mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a . Prior to this VA examination, there were specific findings in VA examinations that there was were no symptoms of radiculopathy and radiculopathy was not diagnosed. Although the Veteran mentioned numbness and tingling in his September 2015 NOD, he did not describe radiculopathy symptoms at his hearing or report it at his VA examinations, nor was it detected by the VA examiners during the straight leg tests and sensory examinations until February 11, 2020. A vague statement that “reasonable doubt should have been applied for numbness/tingling” is not probative evidence that he had radiculopathy, more probative weight is given to the specific findings of the VA examiners that stated he did not have radiculopathy. February 11, 2020 is the earliest date that there was evidence of radiculopathy, and there is no information contained in the examination report to provide a different effective date. No revision to those ratings is warranted at this time. The examiner described the overall severity of the radiculopathy as mild and the only manifestations were mild constant and intermittent pain. There were no paresthesias and/or dysesthesias or numbness, and the examiner found that there were no other signs or symptoms of radiculopathy. As noted above, reflex and sensory examinations were normal. This disability picture is best characterized as mild. There is no other probative evidence of additional neurologic abnormalities caused by the Veteran’s low back disability. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.