Citation Nr: 21020835 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-32 551 DATE: April 8, 2021 ORDER Entitlement to a 10 percent disability rating for left knee instability is granted. Entitlement to a rating higher than 10 percent for a left knee disability based on limitation of motion is denied. Entitlement to a rating higher than 20 percent for a lumbar spine disability prior to March 11, 2019, and a rating higher than 40 percent thereafter, is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the left knee is manifested by slight instability. 2. The Veteran’s left knee disability is manifested by complaints of pain, with flexion limited to no less than 90 degrees and full extension. 3. Prior to March 11, 2019, the Veteran’s service-connected back disability was not shown to be manifest by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks, or associated neurological impairment. 4. From March 11, 2019, the Veteran’s back disability is shown to have been functionally limited to 30 degrees or less; but unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks, or associated neurological impairment, have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for a left knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for a separate 10 percent rating, but no higher, left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a rating higher than 20 percent for a lumbar spine disability prior to March 11, 2019, and a rating higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1991. During the pendency of the appeal, an October 2016 rating decision increased the Veteran’s disability rating for a left knee disability to 10 percent, effective October 1, 1991. It is unclear why the agency of original jurisdiction (AOJ) assigned this date, for the award of a 10 percent disability rating for the left knee disorder as the current appeal was initiated by a claim filed on July 17, 2008. In any event, the Board finds that the relevant appellate period under consideration before the Board does not extend beyond the date of claim. The appeal was previously before the Board in June 2018. At that time, the Board granted entitlement to an increased rating of 20 percent for the lumbar spine disability prior to September 22, 2016, and remanded the claim for a disability rating higher than 20 percent for additional development. A November 2018 rating decision implemented the Board’s grant of a 20 percent disability rating for the lumbar spine disability, effective November 16, 2012. As the Board’s decision granted the 20 percent rating for the entire period on appeal, the AOJ should take corrective measures to implement the 20 percent disability rating effective from July 18, 2008, the date the claim for an increased rating was received. The Board notes that a June 2019 rating decision increased the Veteran’s rating for a lumbar spine disability to 40 percent disabling, effective March 11, 2019. As this rating is less than the maximum benefit available, and the Veteran has not indicated satisfaction with the ratings as assigned, the appeal remains pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). 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 is more favorable to the Veteran will be applied. 1. Entitlement to a rating higher than 10 percent for a left knee disability The Veteran seeks a rating higher than 10 percent for his left knee disability. The Veteran’s service-connected left knee disability is currently assigned a 10 percent disability rating for limitation of flexion under Diagnostic Codes 5010-5260. 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. In this case, the hyphenated code indicates that the Veteran’s disability is evaluated as limitation of flexion based on the criteria found under Diagnostic Code 5260. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. VA’s General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Prior to the regulatory change, the rating schedule provided for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent subluxation or lateral instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage, or removal of the semilunar cartilage under Diagnostic Codes 5258, 5259; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. On VA examination performed in October 2008, the Veteran denied locking, but endorsed some popping and swelling. He used a brace for long distance walking. There was no effusion or joint line tenderness in the left knee, and the cruciate and collateral joints were intact. The examiner noted some mild crepitation. The examination reported knee flexion to 145 degrees and knee extension to 0 degrees without pain even upon repetitive motion. X-rays showed old Osgood-Schlatter’s disease. On VA examination in March 2011, the Veteran reported daily mechanical left knee pain rated as 7/10 in intensity. He denied any flare-up pain symptoms, or episodes of effusion. He stated that his left knee gave way almost daily. The Veteran used a cane and an off-the-shelf Neoprene patellar stabilizing knee brace to assist with ambulation. The examiner noted that the Veteran’s gait was antalgic favoring the left lower extremity. Range of motion of he left knee was 0 to 140 with no additional loss of motion on repetitive movement. In November 2012 the Veteran underwent a VA examination. He complained of chronic left knee pain, increased by walking over two blocks. He denied flare-ups. Examination showed range of motion following repetitive motion with flexion to 130 degrees and extension was to 0 degrees. It was limited to 110 degrees by pain. Following repetition, there was evidence of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. Instability testing was normal. There was no history of recurrent patellar subluxation or dislocation. There was no evidence of instability in the knee. The Veteran able was employed a warehouse supervisor which was relatively sedentary work. At a March 2014 Board hearing, the Veteran described left knee buckling. He indicated that he remained employed as a warehouse manager. On VA examination in September 2016, the Veteran denied flare-ups. Range of motion of the left knee was 0 to 140 degrees. There was no additional functional loss or range of motion after three repetitions. There was evidence of pain with weight bearing, along with crepitus. Joint stability tests were negative. The examiner used a brace regularly for ambulation. X-rays revealed arthritis. Occupationally, the left knee condition created difficulty with walking and climbing. On VA examination in March 2019, the Veteran reported pain in his left knee with prolonged standing. He rated his pain as a 6-7/10. The examiner noted degenerative changes of the left knee. He used a prescription knee brace and cane for ambulation, along with Aleve as needed. He endorsed flare-ups with prolonged standing or walking. Range of motion was 0 to 105 degrees. The range of motion was reduced to 0 degrees of extension and 90 degrees of flexion, with repetitive use over time and with flare-ups. There was evidence of pain on weight bearing and on passive range of motion. There was tenderness to palpation of the medial and lateral joint line consistent with degenerative joint disease and crepitus. The Veteran had knee pain and swelling that impaired his ability to do prolonged sitting and standing. Joint stability testing revealed no abnormalities. The Veteran had recurrent effusion of the left knee. There was no history of recurrent subluxation. Occupationally, the Veteran’s knee condition impaired prolonged, standing and walking, and was productive of pain with squatting. The left knee surgical scar was not visible because it was well healed. The Board notes that Diagnostic Code 5003 cannot serve as the basis for higher ratings for either knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003, therefore a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. Pertaining to limitation of motion of the left knee, the range of motion findings detailed above, throughout the appeal, do not show limitation so severe as to meet the criteria for the next higher ratting under Diagnostic Codes 5260. In this regard, during the course of the claim the Veteran’s left knee flexion has been shown to be limited to, at worst, 90 degrees, during flare-ups and with repeated use over time. Additionally, the Veteran had full extension of the left knee. Thus, separate or higher ratings than the currently assigned 10 percent rating for the left knee disability based on limitation of motion are not warranted, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Although the Veteran has reported pain associated with his range of motion, the Court has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant’s contentions that he should be given the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because he experienced pain throughout the range of motion of the knee. Id. The Veteran has reported subjective complaints of instability, locking, giving way, stiffness, buckling and swelling throughout the appeal. However, joint stability testing throughout the appeal, consistently revealed no abnormalities, and the examiners noted no history of recurrent subluxation or lateral instability. The evidence shows that the Veteran wears a brace for his left knee, and the VA examiner in March 2019 noted tenderness to palpation of the medial and lateral joint line and indicated that the Veteran had been prescribed a knee brace and cane for ambulation. The Board acknowledges that there is a lack of clarity on whether the Veteran has had instability. However, after examining the medical evidence, the VA examinations, and the Veteran’s statements, the Board finds that knee instability has (it appears) played a role in his knee condition. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that a 10 percent disability rating for slight left knee instability under the rating criteria in effect prior to February 7, 2021, is warranted. There is no indication that any instability found to have been present was moderate in severity. Specifically, stability testing consistently revealed no abnormalities and muscle strength was full, with no atrophy. Additionally, while the evidence shows that the Veteran has been prescribed an assistive device for ambulation, to include a brace, there is no evidence of sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, or unrepaired or failed repair of complete ligament tear causing persistent instability. Accordingly, a rating of 10 percent, but no higher, for recurrent subluxation and lateral instability of the knee is warranted. 38 C.F.R. § 4.71a Diagnostic Code 5257. The findings regarding the knee are very consistent over a period of time. The post-service treatment records, as whole, do not fully support the Board’s grant of the claim above, let alone a higher evaluation. Additionally, while the left knee disability involves surgical scarring, as the scar on the left knee was not painful or unstable, nor covering a total area greater than 39 square cm. Accordingly, separate compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. While the Veteran clearly has problems with his left knee (if he did not, there would be no basis for the current compensation level) the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran’s left knee disorder. The medical reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. Thus, although the Veteran’s competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartleft v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the objective medical findings and opinions provided by the VA examiners have been accorded greater probative weight and outweigh the Veteran’s contentions. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of any higher and/or separate ratings for the left knee disability. See 38 U.S.C. § 5107 (b); Gilbert, supra. 2. Entitlement to a rating higher than 20 percent for a lumbar spine disability prior to March 11, 2019, and a rating higher than 40 percent thereafter The Veteran contends that he is entitled to higher disability ratings than those currently assigned for the lumbar spine. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran’s service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. 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 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. On VA examination in October 2008 the examiner noted forward flexion to 75 degrees and extension to 45 degrees without pain. Right and left lateral flexion was to 30 degrees, bilaterally, and rotation was to 40 degrees, bilaterally and without pain. There was no change in range of motion upon repetitive motion. There were no incapacitating episodes. There was no tenderness on palpation or spasms. MRI in November 2007 revealed disc protrusions at L4/5, with a small effusion at L5/S21. Straight leg raising was negative, bilaterally. On examination in March 2011, the Veteran complained of back pain with nightly flare ups, that lasted one to two days. He rated the pain as 8/10. The Veteran denied any radicular signs or symptoms, or physician prescribed bedrest. Neurological examination showed sensation, motor strength and reflexes were normal. Straight leg raising was subjectively positive bilaterally. Flexion was to 70 degrees and extension was to 30 degrees. Lateral flexion was to 30 degrees, bilaterally, and rotation was also to 30 degrees, bilaterally. There was no additional loss of motion with repetitive movement. On VA examination in November 2012, flexion of the lumbar spine was limited to 50 degrees with pain. There was no additional limitation of motion on repetitive movement. There was tenderness with no spasms. Straight leg raising was negative. There were no signs or symptoms of radiculopathy or IVDS. The Veteran underwent a VA examination in September 2016. The Veteran reported back pain with no flare-ups. He wore a lumbar corset for comfort. Forward flexion was to 50 degrees, extension was to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. There was no additional loss of function or range of motion after three repetitions. There was no evidence of pain with weight bearing. The examiner noted mild tenderness over the lumbar right paraspinals. There was no radicular pain or any other signs or symptoms indicative of radiculopathy. Muscle strength, sensory examination and reflexes were normal throughout the lower extremities. Straight leg raising test was negative, bilaterally. No other neurologic abnormalities were identified. The examiner found no evidence of IVDS. The examiner noted that the back disability was productive of difficulty with walking and climbing. On VA examination in March 2019, the Veteran reported pain in his back with prolong sitting, and standing. He used a back brace as needed and has also had injections in his back. His last injection was in 2016, with no additional treatment. The Veteran endorsed flares up with prolonged sitting and standing, and with bending. Forward flexion was to 40 degrees. Flexion was reduced to 30 degrees with repetitive use over time and with flare-ups. There was pain on weight bearing. Passive range of motion testing was not indicated. The Veteran used a prescription back brace and cane for ambulation. Muscle strength was reduced at the hip level. There was no muscle atrophy in either leg. Reflexes and sensory examination were normal. Straight leg raise was negative, bilaterally. There were no radicular symptoms present, or other neurological abnormalities identified. There was no ankylosis or IVDS. Occupationally, the Veteran’s back condition impaired prolonged sitting, standing and walking, as well as lifting. The Board notes that the evidence does not show, nor does the Veteran claim, IVDS with physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total of at least four weeks during any given 12 months period. Accordingly, the Board finds that he is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. The Board finds that prior to March 11, 2019, the Veteran is not entitled to a rating in excess of 20 percent. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.71a. During this period, the only recorded range of motion findings show the Veteran’s flexion was no worse than to 50 degrees with pain. Considering all the evidence of record, including range of motion testing results, the evidence that prior to March 11, 2019, weighs against a finding of forward flexion limited to 30 degrees or less, even considering with repetition or during flare-ups. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Additionally, there is no evidence of ankylosis of the thoracolumbar spine. Therefore, the Board finds that prior to March 11, 2019 a rating in excess of 20 percent is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5235-5242. Effective March 11, 2019, the Veteran’s back disability was evaluated as 40 percent disabling. In order to warrant a rating higher than 40 percent for the lumbar spine disability under the General Rating Formula, the evidence must show unfavorable ankylosis of the thoracolumbar spine. As the evidence shows the Veteran has movement in his thoracolumbar spine, it follows that the thoracolumbar spine is not ankylosed. Consistent with this finding, the VA examiner in 2019 found no objective evidence of ankylosis of the spine. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment, bowel impairment or neurological impairment in the lower extremities as a result of his service-connected back disorder, and the VA examiners specifically found no neurologic impairment associated with the back. For this reason, separate ratings for objective neurological abnormalities were not warranted at any time during the period on appeal. The Board finds that a disability rating higher than 20 percent for a low back disability prior to March 11, 2019, and a rating higher than 40 percent thereafter, are not warranted. The Board finds that the preponderance of the evidence is against the assignment of any ratings higher than those assigned. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page)   Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include VA treatment records and examination reports, shows that during the pendency of this appeal the Veteran retired from full-time. In this case, a TDIU was not reasonably raised by the record or asserted by the Veteran. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.