Citation Nr: 21015598 Decision Date: 03/18/21 Archive Date: 03/17/21 DOCKET NO. 17-43 310 DATE: March 18, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to April 10, 2017 for low back syndrome is denied. Entitlement to a 40 percent evaluation from April 10, 2017 for low back syndrome is granted. Entitlement to a separate 10 percent evaluation from April 10, 2017, and a 20 percent evaluation thereafter, for right lower extremity radiculopathy is granted. A separate 10 percent evaluation for left lower extremity radiculopathy is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for right knee condition is remanded. Entitlement to an evaluation in excess of 10 percent for left knee condition is remanded. FINDINGS OF FACT 1. Prior to April 10, 2017, the Veteran’s low back syndrome is manifest by painful motion limited to no less than 85 degrees. 2. From April 10, 2017, the Veteran’s low back syndrome is manifest by forward flexion of the thoracolumbar spine limited to between 30 and 40 degrees; ankylosis is not shown. 3. From April 6, 2015 to April 10, 2017, the Veteran’s service-connected low back syndrome results in mild right lower extremity radiculopathy; thereafter, it results in moderate right lower extremity radiculopathy. 4. From April 6, 2015, the Veteran’s service-connected low back syndrome results in mild left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Prior to April 10, 2017, the criteria for an evaluation in excess of 10 percent for low back syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5237. 2. From April 10, 2017, the criteria for a 40 percent evaluation for low back syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5237. 3. The criteria for a separate 10 percent evaluation for right lower extremity radiculopathy prior to April 10, 2017; and a 20 percent evaluation, thereafter, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5237; 4.124a, Diagnostic Code 8520. 4. The criteria for a separate 10 percent evaluation for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5237; 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1973 to July 1976 and from July 1978 to June 1995. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and L.R. testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2019. A transcript is of record. 1. Entitlement to an evaluation in excess of 10 percent prior to April 10, 2017 for low back syndrome is denied. 2. Entitlement to a 40 percent evaluation from April 10, 2017 for low back syndrome is granted. On April 6, 2016, the Veteran sought an increased rating for his low back syndrome which is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5237. Thus, the period under review begins on April 6, 2015, one year prior to receipt of the Veteran’s claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Disability ratings are determined by applying the criteria set forth in the VA Schedule for 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. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s low back syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5237. 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). On VA examination in May 2016, the Veteran reported that his back was stiff and tight, with less range of motion. He stated all pain is located in the lower part of his back and is “24/7.” His main complaint was lack of mobility. He denied any flare-ups or functional loss of the thoracolumbar spine. The examiner indicated the Veteran’s service-connected low back syndrome demonstrated no objective clinical evidence of associated functional loss. On examination, forward flexion was 85 degrees, and extension was 25 degrees. Right and left lateral flexion and rotation were all 30 degrees. All ranges of motion exhibited pain. There was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the back. The Veteran was able to perform 3 repetitions without any additional loss of function or range of motion (ROM). There was no guarding, muscle spasm, or muscle atrophy. Muscle strength was normal. There was no additional contributing factor of disability. His sensory exam was normal. There was no radiculopathy, ankylosis of the spine, neurologic abnormalities, or intervertebral disc syndrome (IVDS). Reflexes of the bilateral knees and ankles were normal. He did not use assistive devices. The examiner noted that a May 2016 imaging study showed early degenerative osteoarthritis. In the remarks, the examiner commented that the May 2016 imaging finding of nonservice-connected osteoarthritis is the most likely cause of the Veteran’s report of pain and exam findings today, and not the service-connected low back syndrome. A May 2016 imaging study from Fort Harrison Medical Center noted early degenerative osteoarthritis. On April 10, 2017, VA received a disability benefits questionnaire (DBQ) from Dr. H.M. dated in January 2017. The evaluation report shows the Veteran noted stabbing pain in the lower back, stabbing pain in front inner thigh, and mid back pain. He reported functional loss described as inability to climb steps, inability to sit for more than 30 minutes, inability to walk on uneven ground, and inability to run. The Veteran was diagnosed with mechanical back pain syndrome, lumbosacral sprain/strain, degenerative disc disease, and radiculopathy. Dr. H.M. noted these conditions were from injuries during military parachuting, injuries during military training over a 20-year career as a combat arms officer. On examination, forward flexion was to 40 degrees, extension was 10 degrees, right and left lateral flexion was 10 degrees, and right and left lateral rotation was 20 degrees. Dr. H.M noted the Veteran was unable to perform repetitive use testing due to pain and noted there was severe spasm of lumbar spine paraspinals. He noted ROM movements were painful on active, passive, or repetitive use testing, but did not contribute to functional loss. He noted ROM movements were painful when the joint is used in weight-bearing or non-weight-bearing and contributed to the Veteran’s inability to go up the stairs. There was localized tenderness or pain to palpation. The Veteran’s gait was abnormal due to muscle spasm and guarding. Dr. H.M noted weakened movement, excess fatigability, pain on movement, instability of station, and interference with sitting and standing contributed to functional loss. He noted flare-ups occurred daily. Dr. H.M. noted that during flare-ups or repeated use, forward flexion was decreased to 30 degrees, extension to 0 degree, right and left lateral flexion to 0 degree, and right and left lateral rotation to 10 degrees. There was no ankylosis. Dr. H.M noted the Veteran had IVDS with incapacitating episodes for at least 6 weeks over the past 12 months. Dr. H.M. noted MRIs showed disc disease in thoracic and lumbar spine. He noted arthritis was shown in a May 2016 record from Fort Harrison VA Center. Occasional use of brace and cane was noted. In the remarks, Dr. H.M. provided the following additional comment: Due to the repetitive trauma from parachuting, this gentleman has ended up with significant disc disease and degeneration throughout his spine - including cervical, thoracic, and lumbar spine. These discs have been causing long term compression of nerves leaving the spine causing severe pain in the thoracic region along with compressing a large sciatic and femoral nerve coming out of the lumbar spine and into his leg, which results in weakening and loss of strength and function. In addition, there is upper spine/neck/shoulder [ineligible] disease that is not mentioned above - all stemming from his injuries resulting from his Army experiences while enlisted and while jumping out of planes. The Veteran underwent a VA examination in May 2017. He was diagnosed with degenerative disc disease of the thoracolumbar spine and degenerative arthritis of the lumbosacral spine. He reported he was a parachutist during active service and had multiple rough landings. He reported his back condition is worsening. He reported the back pain feels like an aching pain, and it causes difficulty bending over with spasms in the mid back. He reported flare-ups. He reported functional loss described as “not able to walk up and down stairs, walking in grass, or jogging.” On examination, the Veteran’s flexion was 40 degrees, extension was 10 degrees, right and left lateral flexion was 20 degrees, and right and left lateral rotation was 10 degrees. The examiner noted range of motion contributed to functional loss and noted that the Veteran is unable to bend over to tie shoes or lift something from the floor. All ranges of motion exhibited pain and caused functional loss. There was objective evidence of localized tenderness or pain on palpation in the lumbar spine with moderate severity related to degenerative arthritis in thoracic and lumbar spine. There was no evidence of pain with weight bearing. The Veteran was able to perform 3 repetitions without additional loss of function or range of motion. The examiner noted that the examination was not being conducted during a flare-up or after repetitive use over time, and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up or repetitive use over time. There was no guarding, muscle spasm. There was no ankylosis. An additional factor contributing to disability was less movement than normal. Muscle strength was normal; there was no muscle atrophy. Reflex and sensory exam were normal. There was no radiculopathy or other neurologic abnormalities. The Veteran did not have IVDS. No assistive devices were noted. There was arthritis as evidenced by a December 2016 MRI of the thoracic spine that noted, “Disc narrowing mid thoracic. Intervertebral endplate herniations,” and a December 2016 MRI of the lumbar spine that noted, “Mild facet arthropathy L3-S1. Disc heights are preserved with shallow disc bulges.” There was objective evidence of pain when the back is used in non-weight bearing. In response to an RO clarification request on whether the prior diagnosis of low back syndrome was in error or whether the thoracolumbar degenerative disc disease diagnosed in the January 2017 private evaluation was the proper diagnosis, the examiner noted that the prior diagnosis was likely not in error as the current diagnoses were more than likely not present at the time of the initial diagnosis. The examiner noted that the proper current diagnoses are thoracolumbar degenerative disc disease and degenerative arthritis of the lumbosacral spine. The examiner noted the current diagnoses are not a progression of low back syndrome, and are new and unrelated. The examiner noted current diagnoses are expected to be found in a person of the Veteran’s age, and therefore are less likely than not due to or caused by events during service, to include parachute jumps. The RO also requested the examiner discuss the remarkable decrease in ROM between the May 2016 exam and the January 2017 private exam, and whether there was an intercurrent injury. The examiner noted there was no intercurrent injury, and commented that during the examination by the examiner, the Veteran seemed to have exaggerated his symptoms on testing as the exam results were more severe than the observed ability of the Veteran such when he was taking off his socks and shoes. In an October 2019 letter, Dr. H.M. noted that thoracic spine pathology usually comes with traumatic events. He noted that the Veteran’s history of parachuting out of airplanes during his military experience is a classic example of how this kind of damage would have resulted. Dr. H.M. also noted that the Veteran has pains from the lower back down in a sciatic distribution to his legs and the right thigh. Dr. H.M noted that the Veteran’s lumbar spine scanning shows compression of the appropriate nerves to produce these symptoms, thus giving him the diagnosis of lumbar radiculopathy. Dr. H.M noted that the thigh pain can indeed come from his lumbar radiculopathy and is most likely the cause. Given the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s low back syndrome prior to April 10, 2017. Thereafter, resolving any doubt in the Veteran’s favor, a 40 percent rating is warranted. For the period prior to April 10, 2017, the evidentiary record does not show limitation of forward flexion to 60 degrees or less. The May 2016 VA examination report revealed painful motion of the thoracolumbar spine, however forward flexion was limited to 85 degrees and the combined range of motion was 230 degrees. The Veteran denied flare-ups, and there was no showing of 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 Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and lack of mobility. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has difficulty with mobility would not result in limitation of motion more nearly approximate the limited forward flexion((greater than 30 degrees but not greater than 60 degrees) to warrant a higher rating prior to April 10, 2017. Thus, a rating in excess of 10 percent is not warranted. For the period from April 10, 2017, the evidence showed forward flexion was limited to between 30 and 40 degrees. The January 2017 DBQ shows forward flexion limited to 30 degrees, at worst, considering flare-ups and repetitive use. At the May 2017 VA examination, forward flexion was limited to 40 degrees. The examiner did not, however, provide an adequate opinion regarding the effect of the Veteran’s reported flareups on the range of motion. For this reason, and because the January 2017 DBQ does provide an estimate of the additional limitation of motion due to flare-ups, the Board will resolve doubt in the Veteran’s favor and find that a 40 percent rating is warranted from April 10, 2017. For this period, the Veteran is in receipt of the highest rating allowed for limitation of motion. There is no showing of unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher rating for limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that 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. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes Note 1. The Board acknowledges the finding in the January 2017 DBQ that the Veteran has IVDS and had incapacitating episodes for at least 6 weeks over the past 12 months. However, May 2016 and May 2017 VA examinations noted that the Veteran did not have IVDS. Further, the Veteran’s VA and private treatment records in the claims file are devoid of any records of any doctor-prescribed bedrest due to his low back syndrome including by Dr. H.M. Accordingly, the preponderance of the evidence is against the assignment of a compensable rating for IVDS manifested by incapacitating episodes. 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). The amendments revised select diagnostic codes including Diagnostic Code 5243 where it only applied when there is disc herniation with compression and/or irritation of the adjacent nerve root. In the present case, the amendment does not affect the evaluation as the record is devoid of any incapacitating episodes due to his back condition still required for a compensable rating. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s low back syndrome prior to April 10, 2017; a 40 percent rating is warranted thereafter. 3. Entitlement to a separate 10 percent evaluation prior to April 10, 2017 for right lower extremity radiculopathy; and a 20 percent evaluation thereafter is granted thereafter. 4. Entitlement to a separate 10 percent evaluation for left lower extremity radiculopathy is granted. As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code. Separate ratings for bilateral lower extremity radiculopathy arose from the claim for increased rating for low back syndrome. Thus, the appeal period begins on April 6, 2015, one year prior to receipt of the Veteran’s claim for increased rating for low back syndrome. Gaston, 605 F.3d at 982. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. Historically, an October 2011 record from Dr. H.M., a neurologist, received in January 2012 noted lumbar radiculopathy. At the May 2016 VA examination, the Veteran complained of lack of mobility, but the examiner noted that his low back syndrome demonstrated no objective clinical evidence of associated functional loss. There was no guarding, muscle spasm, or muscle atrophy. His muscle strength was normal. The sensory exam was normal. There was no radiculopathy or other neurologic abnormalities. Reflexes of the bilateral knees and ankles were normal. No assistive device was noted. A December 2016 private record from Dr. H.M noted the Veteran’s worst lower back pain is on the right that radiate in the internal right leg to the knee, that is severe and lancinating without any provocation. A December 2016 x-ray report from Northside Hospital received in April 2017 noted history of lumbar radiculopathy for 20 years with no known trauma. The impression was mild facet arthropathy L3-S1 with disc heights preserved with shallow disc bulges. A December 2016 record from Dr. H.M. received in October 2019 noted lumbar radiculopathy, and further noted, “I suspect that we are dealing with the ramifications of his VA related service injuries as he has not done anything since his leaving the military that would provoke these since.” A January 2017 record from Dr. H.M. received in October 2019 noted that MRI of the lumbar spine showed L3-4 disc disease with nerve root compression and multi-level disc degenerative disease and osteophytes. Lumbar radiculopathy was noted for assessment. In the January 2017 DBQ from Dr. H.M. a diagnosis of radiculopathy in the bilateral lower extremities was provided. Dr. H.M. reported that the Veteran’s gait was abnormal due to muscle spasm and guarding. Right hip and knee muscle strength was 3/5; ankle plantar and dorsiflexion was 4/5; foot adduction, abduction, and great toe extension was normal. Muscle strength of the left hip, knee, and ankle was 4/5; muscle strength was normal for ankle dorsiflexion, and foot adduction, abduction, and great toe extension. The sensory examination revealed normal sensation throughout the lower extremities. The reflex examination revealed hypoactive (1+) deep tendon reflexes in the bilateral knees; the bilateral ankle deep tendon reflexes were absent (0+). There was no muscle atrophy. There was radiculopathy with constant severe pain in the right lower extremity, and dull mild pain in the left lower extremity. There was no numbness or paresthesias. The radiculopathy involved L2/L3/L4 nerve roots for the right, and L4/L5/S1/S2/S3 for the left. The severity of radiculopathy was noted as ‘severe’ for the right and ‘mild’ for the left. At the May 2017 VA examination, the Veteran’s muscle strength was normal. There was no muscle atrophy. Reflex and sensory exam were normal. There was no radiculopathy or other neurologic abnormalities. No assistive devices were noted. The examiner noted that an additional factor contributing to disability was less movement than normal. In an October 2019 letter, Dr. H.M. noted that the Veteran has pains from the lower back down in a sciatic distribution to his legs and the right thigh. He added that the Veteran’s lumbar spine scanning showed compression of the appropriate nerves to produce these symptoms, which indicated a diagnosis of lumbar radiculopathy. In short, there is a conflict in the competent medical evidence with respect to whether the Veteran’s service-connected low back disability has progressed to include degenerative disc disease and resultant neurologic abnormities of bilateral lower extremity radiculopathy. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s degenerative disc disease of the lumbar spine is related to his service-connected low back syndrome and manifests with radiculopathy. Hence, the Board will rate the radiculopathy affecting each lower extremity pursuant to Note (1) of the General Rating Formula for Disabilities of the Spine. For the appeal period that is prior to April 10, 2017, the evidence reflects that the low back syndrome manifested with right lower extremity radiculopathy that most closely approximated mild incomplete paralysis of the sciatic nerve due to symptoms of mild impairment of motor function and reflexes, and mild pain; thereafter, his right lower extremity radiculopathy most closely approximated moderate incomplete paralysis due to additional symptom of constant, severe pain. The Veteran’s left lower extremity radiculopathy most closely approximated mild incomplete paralysis of the sciatic nerve due to symptoms of mild impairment of motor function and reflexes, and mild pain. Regarding impairment of motor functions, the medical records indicate abnormal gait and lessened movement. The May 2016 VA examiner noted the Veteran’s low back syndrome demonstrated no objective clinical evidence of associated functional loss. The private DBQ received in April 2017 noted abnormal gait due to muscle spasm and guarding, and occasional use of brace and cane. The May 2017 examiner noted less movement than normal. Assistive devices were not noted in the May 2016 and May 2017 VA exams. Regarding sensory disturbance, the medical records noted normal senses. The DBQ received in April 2017 noted that the sensory exam revealed normal sensation throughout both lower extremities without paresthesias or numbness. The May 2016 and 2017 VA exams noted sensory exams were normal. Regarding loss of reflexes, the medical records show mild loss of reflexes. The May 2016 and May 2017 VA exam noted normal reflexes. The private DBQ received in April 2017 noted that reflex exam revealed hypoactive deep tendon reflexes in the bilateral knees, and reflexes absent in the bilateral ankle deep tendon. Regarding pain, the medical records show mild to severe radicular pain. A December 2016 private record noted that lower back pain radiated in the internal right leg to the knee. The DBQ received in April 2017 noted constant and severe radicular pain in the right lower extremity, and dull and mild radicular pain in the left lower extremity. An October 2019 statement noted that the Veteran has pains from the lower back down in a sciatic distribution to his legs and the right thigh. Regarding muscle atrophy, none was shown during the appeal period. The May 2016 VA exam noted no muscle atrophy, and his muscle strength was normal. The DBQ received in April 2017 noted no muscle atrophy. It noted mild loss of muscle strength in the bilateral lower extremities. The May 2017 VA exam noted no muscle atrophy, and his muscle strength was normal. Higher ratings are not warranted as the Veteran’s radicular symptoms do not appear to have caused a greater degree of impairment. For instance, the left lower extremity during the appeal period, and the right lower extremity prior to April 10, 2017 displayed mild impairment of motor functions and reflexes, and mild radicular pain. With respect to the right lower extremity from April 2017, while the DBQ noted constant, severe radicular pain, it also noted normal sensation in both lower extremities without any paresthesias or numbness. It noted that there was no muscle atrophy, and his muscle impairment was mild. Further, the May 2016 and May 2017 VA examiners consistently noted that the Veteran did not have radiculopathy, his reflex and sensory exams were normal, and that the Veteran did not use assistive devices. Having considered the evidence as a whole, the Board finds that the overall disability picture of the right radiculopathy from April 2017 more closely approximates a ‘moderate’ radiculopathy. In conclusion, resolving any doubt in the Veteran’s favor, a separate 10 percent rating for the appeal period prior to April 10, 2017; and a 20 percent rating thereafter is warranted for right lower extremity radiculopathy. A separate 10 percent rating is warranted from April 6, 2015 for left lower extremity radiculopathy. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent disabling for right knee condition is remanded. 2. Entitlement to an evaluation in excess of 10 percent disabling for left knee condition is remanded. At the October 2019 Board hearing, the Veteran stated that his bilateral knee pain has worsened. The Veteran also reported flare-ups described as increased pain, swelling, and stiffness that occurred every other week, lasting one day to two and a half days. The Veteran last underwent a VA examination May 2016. The Veteran should be scheduled for a VA examination to determine the current severity of his bilateral knee disability. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral knee conditions. The Veteran’s bilateral knees should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. The examiner is asked to express an opinion regarding whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups. The examiner should estimate any additional functional impairment in terms of range of motion. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.