Citation Nr: 21022727 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-32 263 DATE: April 19, 2021 ORDER A rating in excess of 10 percent for limitation of motion of the left is denied. A separate rating of 10 percent, but no higher, for instability of the left knee is granted, effective January 25, 2016. A rating of 20 percent, but no higher, for a low back disability prior to December 6, 2019, is granted. A rating in excess of 20 percent for a low back disability as of December 6, 2019, is denied. A rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. A rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s left knee was limited in motion to no less than 80 degrees flexion and 5 degrees extension. 2. As of January 25, 2016, the evidence is at least in equipoise as to whether the Veteran’s left knee disability results in slight lateral instability. 3. For the entire period on appeal, the evidence is at least in equipoise as to whether the Veteran’s low back disability resulted in limitation of forward flexion to 60 degrees or less. 4. For the entire period on appeal, the weight of the weight of the competent and probative evidence is against finding that the low back disability resulted in forward flexion to 30 degrees or less or ankylosis. 5. The weight of the competent and probative evidence is against finding moderately severe incomplete paralysis of the left lower extremity. 6. The weight of the competent and probative evidence is against finding moderately severe incomplete paralysis of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion of the left knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. As of January 25, 2016, the criteria for a separate rating of 10 percent, but no higher, for instability of the left knee instability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. 3. The criteria for a rating of 20 percent, but no higher, prior to December 6, 2019, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The criteria for a rating in excess of 20 percent as of December 6, 2019, for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 5. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8520. 6. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to July 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In July 2015 the Board remanded the issues on appeal because the evidence suggested that his service-connected disabilities had worsened since the July 2011 VA examination. Therefore, the remand directed the RO to schedule VA examinations to determine the current severity of the Veteran’s service-connected disabilities. Additionally, in October 2017, the Board again remanded the issues on appeal because the January 2016 VA examination was inadequate. The Veteran reported flare-ups for his service-connected disabilities; however, the examiner noted that the examination was not conducted during a flare-up and was not able to state whether the Veteran’s flare-ups would cause a greater limitation of range of motion. In August 2019, the Board remanded the issues on appeal because the June 2018 examiner noted flare-ups of the Veteran’s left knee and thoracolumbar spine. However, the examiner did not attempt to estimate additional loss during flare-ups or explain why this estimate could not be given. Finally, in October 2020 the Board remanded the issues on appeal because the record showed that the Veteran filed a Social Security Administration claim. Additionally, the Veteran obtained private pain management treatment from Dr. K. However, the claims folder did not contain such records. The record showed that the RO received the Social Security Administration records. See 10/30/2020 Medical Treatment Records – Furnished by SSA. Further, the RO sent the Veteran a correspondence asking the Veteran to sign a VA Form 21-4142 to obtain private medical records from Dr. K. See 12/7/2020 Subsequent Development Letter. However, the claims file does not show that the Veteran filed the signed VA Form 21-4142. After a February 2020 SSOC considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Veteran was contacted to provide a signed VA Form 21-4142 and the Social Security Administration records were obtained. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). While the appeals for increased ratings for the left knee and back were pending, a February 2016 rating decision granted an increased rating of 10 percent for the left knee effective July 7, 2010, and service connection for paralysis of the right and left lower extremities, each rated as 20 percent effective January 4, 2016. Additionally, a July 2020 rating decision granted an increased rating of 20 percent for the low back disability effective December 6, 2019. Although increased and separate ratings were granted, the issues remain in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 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. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); 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 § 4.71(a) [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. An initial rating in excess of 10 percent for a left knee disability. The Veteran’s left knee disability is rated as 10 percent disabling under Diagnostic Code 5260 (for limitation of flexion) and noncompensable under Diagnostic Code 5261 (for limitation of extension). Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71(a), DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71(a), DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71(a), DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. The Board notes that, while this appeal was pending, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85,523, 85,524 (Dec. 29, 2020). 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); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. Under the amended version of DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a 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 complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device 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 and bracing for ambulation. 38 C.F.R. § 4.71a (2021). The Veteran asserts that he is entitled to a higher rating for his left knee disability. Specifically, the Veteran’s mother contended that the Veteran “was walking kind of stiff” and that his disability has worsened “year after year.” See 4/25/2012 Buddy/Lay Statement. Additionally, the Veteran contends that due to his disability he experiences difficulty squatting, standing, walking, kneeling, and stair climbing. See 10/30/2020 Medical Treatment Records – Furnished by SSA, at pages 22, 44, and 45. The Board finds that a rating in excess of 10 percent for limitation of motion of the left knee is not warranted. The relevant evidence reflects that the Veteran underwent a VA examination in September 2010. The Veteran reported pain, stiffness, and an inability to squat, run, kneel, or crawl. However, the Veteran also reported no weakness, heat, redness, instability, locking, fatigability, lack of endurance, flare-ups, episodes of dislocation, recurrent subluxation, or use of assistive devices. Additionally, the Veteran reported he could walk 1 to 3 miles, stand for 3 to 8 hours with frequent rest breaks, and perform all activities of daily living independently. Further, the reviewing clinician did not report on the Veteran’s range of motion measurements. See 9/2/2010 VA Examination, at pages 5 and 6. The Veteran also underwent a VA examination in July 2011. The Veteran was diagnosed with an intermittent and uncomplicated left knee strain. The objective examination showed that the Veteran had one episode of crepitus during repetitive motion. However, the Veteran also had normal strength, reflexes, sensation, and range of motion, and no atrophy, spasms, other muscle abnormalities, effusion, tenderness, laxity, ankylosis, or joint swelling or instability. Additionally, the Veteran had no effusion, redness, patellar abnormalities, or objective evidence of pain on active motion or pain after three repetitions. See 7/25/2011 VA Examination, at pages 15, 18, 19, and 28. In January 2016 the Veteran underwent another VA examination. The Veteran was diagnosed with a left knee strain with patellofemoral pain syndrome. The Veteran reported popping and grinding, and feelings of giving way and instability. Regarding flare-ups, the Veteran reported that his pain would be worse with prolonged walking and standing. As functional loss, the Veteran reported that he could not walk for too long or climb the bleachers at his children’s games. The objective examination showed normal extension and painful flexion limited to 110 degrees. Additionally, the Veteran had tenderness over the patella tendon and objective evidence of crepitus. Further, the examiner noted no additional loss of function or range of motion after three repetitions. In addition, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limit the Veteran’s functional ability with repeated use or flare-ups. Furthermore, the Veteran had normal muscle strength for flexion and extension, and no muscle atrophy, joint instability, ankylosis, or history of recurring subluxation, lateral instability, or recurrent effusion. The Veteran used a brace and a cane constantly. Finally, the examiner noted as functional impact that the Veteran’s knee pain would exclude his participation in physical/heavy labor, including lifting more than 10 pounds, twisting, pushing, pulling, stooping, kneeling, squatting, and prolonged walking and standing. However, it would not interfere with his ability to perform sedentary employment. See 1/25/2016 C&P Examination. The Veteran was afforded another VA examination in June 2018. The Veteran was diagnosed with left knee tendonitis/tendinosis with patellofemoral pain syndrome. The examiner noted that it was a progression of the previous diagnosis of uncomplicated left knee strain with patellofemoral pain syndrome. Regarding flare-ups, the Veteran reported shooting pain, popping, and stiffness, and no functional loss due to flare-ups. The objective examination showed normal extension and painful flexion limited to 110 degrees. Additionally, the Veteran had mild generalized tenderness to palpation and objective evidence of crepitus. The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limit the Veteran’s functional ability with repeated use or flare-ups. Further, the Veteran had pain on non-weight bearing testing of the left knee and normal muscle strength for flexion and extension. In addition, he had no muscle atrophy, joint instability, ankylosis, evidence of pain on passive range of motion testing, pain on non-weight bearing, or history of recurring subluxation, lateral instability, or recurrent effusion. The Veteran used a brace regularly and a cane occasionally. Finally, the examiner noted as functional impact that the Veteran had decreased ability to walk, squat, or climb for extended periods. See 6/26/2018 C&P Examination. The most recent VA examination was performed in December 2019. The Veteran was diagnosed with a left knee strain with patellofemoral pain syndrome. Regarding flare-ups, the Veteran reported occasional episodes of more pronounced left knee pain, stiffness, and grinding. As functional loss, the Veteran reported difficulty squatting, stair climbing, and with prolonged walking. The objective examination showed normal extension, flexion limited to 90 degrees, which slowed walking pace and interfered with squatting and stair climbing. The Veteran also had pain with flexion and extension. The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over a period of time, but no additional loss of range of motion; however, pain with prolonged use limited the Veteran’s ability to continue. Further, the examiner noted that pain significantly limited the Veteran’s functional ability with flare-ups; his extension was limited to 5 degrees and his flexion to 80 degrees. In addition, the Veteran had objective evidence of crepitus and normal muscle strength for flexion and extension. Furthermore, he had no muscle atrophy, joint instability, ankylosis, tenderness, evidence of pain on passive range of motion testing, weight bearing, or non-weight bearing, or history of recurring subluxation, lateral instability, or recurrent effusion. The Veteran used a cane regularly. Finally, the examiner noted as functional impact that the Veteran had difficulty squatting, stair climbing, and with prolonged walking. See 12/11/2019 C&P Examination. The Board finds the VA examination to be adequate for rating purposes, as it is based on in-person examination of the Veteran, objective testing, and medical expertise. After review of the competent and probative evidence, the Board finds that a rating in excess of 10 percent for limitation of motion is not warranted. During the entire period on appeal, the Veteran has had at worst flexion limited to 80 degrees and extension limited to five degrees. Compensable ratings under Diagnostic Codes 5260 and 5261 require limitation of flexion to 45 degrees and limitation of extension to 10 degrees, respectively. The Veteran is in receipt of a 10 percent rating for painful motion under 38 C.F.R. § 4.59. The Board acknowledges the above-mentioned Veteran’s mother contentions that the Veteran “was walking kind of stiff” and has worsened “year after year.” See 4/25/2012 Buddy/Lay Statement. Additionally, the Board acknowledges the Veteran’s contentions that due to his disability he experiences difficulty squatting, standing, walking, kneeling, and stair climbing. See 10/30/2020 Medical Treatment Records – Furnished by SSA, at pages 22, 44, and 45. However, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups is more nearly approximated by a higher rating. Moreover, considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already compensates the Veteran for any functional loss due to pain affecting the left knee. Deluca, 8 Vet. App. at 204-07. The Board finds that the Veteran’s pain is contemplated and compensated by the current 10 percent rating that considers factors, such as pain on movement. In light of the foregoing, the Board finds that an increased rating based on limitation of motion is not warranted. Further, the Board finds that a separate rating of 10 percent for slight instability of the left knee is warranted from January 25, 2016, onward, under DC 5257. As mentioned above, the Veteran stated that his left knee feels unstable and as if it would give way. See 1/25/2016 C&P Examination. As such a rating of 10 percent for slight instability is warranted from January 25, 2016, onward. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). A rating higher than 10 percent for instability, however, is not warranted, as there is no indication that the Veteran’s symptoms were moderate or severe, nor does the evidence demonstrate persistent instability. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals in this case in the 2016, 2018, and 2019 VA examinations, and the joint stability testing revealed that anterior, posterior, medial, and lateral were all normal. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements in determining whether a rating in excess of 10 percent is warranted. Finally, ratings under 5256, 5258, 5259, 5262, and 5263 are also not warranted as the Veteran does not have ankylosis, a history of semilunar cartilage condition, an impairment of the tibia and fibula, or genu recurvatum. 2. A rating in excess of 10 percent prior to December 6, 2019, and in excess of 20 percent thereafter, for a low back disability. The Veteran asserts that he is entitled to a higher rating for his low back disability. Specifically, the Veteran’s mother contended that the Veteran “was walking kind of stiff” and that his disability has worsened “year after year.” See 4/25/2012 Buddy/Lay Statement. Additionally, the Veteran contends that due to his disability he experiences difficulty squatting, standing, walking, kneeling, and stair climbing. See 10/30/2020 Medical Treatment Records – Furnished by SSA, at pages 22, 44, and 45. Further, the Veteran reported that his low back pain had worsened and that he cannot cut grass, stand to wash dishes without a break, perform prolonged walking, or ride his motorcycle. See 1/25/2016 C&P Examination. The record shows that the Veteran is currently rated at 10 percent (under DC 5242) prior to December 6, 2019, and in excess of 20 percent thereafter. The question for the Board is whether higher or separate ratings are warranted during the period on appeal. The Board finds that a rating of 20 percent, but no higher, is warranted for a low back disability for the entire period on appeal. The Veteran underwent a VA examination in September 2010. The objective examination showed that the Veteran had an antalgic gait and no ankylosis, muscle spasms, guarding, or weakness or loss of endurance with repetition. Additionally, the Veteran had normal range of motion and straight leg raise test results. See 9/2/2010 VA Examination. In July 2011 the Veteran underwent another VA examination. The Veteran was diagnosed with a mild degenerative disk disease of the lumbar spine. The objective examination showed that the Veteran had no guarding, spasm, tenderness, or ankylosis. Additionally, the Veteran had normal strength, sensation, reflexes, and straight leg raise test results. Further, the Veteran had normal range of motion, except for a limited extension of 26 degrees, and pain with flexion. In addition, the Veteran had no loss of range of motion on repetitive motions. See 7/25/2011 VA Examination. The record showed an additional VA examination in January 2016. The Veteran was diagnosed with degenerative arthritis of the spine. Regarding flare-ups, the Veteran reported that he experienced flare-ups with prolonged walking, standing, and staying in the same position for too long. Regarding functional loss, the Veteran reported that he could not bend, stoop, sit or stand too long, mow the lawn, or stand too long to wash the dishes. The objective examination showed that the Veteran had forward flexion of 70 degrees, extension of 20 degrees, left lateral flexion of 20 degrees, right lateral flexion of 20 degrees, right lateral rotation to 30 degrees, and lateral rotation of 30 degrees. Additionally, the examiner noted that the Veteran had pain with forward flexion and that the Veteran would have difficulty picking up an object off the floor. Further, the examiner noted localized tenderness, disturbance in locomotion, interference with standing, and no evidence of pain with weight bearing or additional loss of function or range of motion after three repetitions. In addition, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limited the Veteran’s functional ability with repeated use or flare-ups. Furthermore, the Veteran had no muscle spasms, guarding, muscle atrophy, ankylosis, or neurologic abnormalities. The Veteran used a brace and a cane constantly. Additionally, the Veteran had IVDS; however, there were no episodes of acute signs or symptoms that required bed rest in the past 12 months. The Veteran had moderate radiculopathy of the sciatic nerve of the bilateral lower extremities. Additionally, the Veteran had normal muscle strength, sensation, reflexes, and straight leg raise test results. Finally, regarding functional impact, the examiner reported that the Veteran’s back pain would exclude his participation in physical/heavy labor, including lifting more than 10 pounds, twisting, pushing, pulling, stooping, kneeling, squatting, and prolonged walking and standing. However, it would not interfere with his ability to perform sedentary employment. See 1/25/2016 C&P Examination. An additional VA examination from June 2018 showed that the Veteran was diagnosed with degenerative arthritis of the spine. Regarding flare-ups, the Veteran reported that he experienced pain and tightness; however, he reported no functional loss. The objective examination showed that the Veteran had forward flexion of 90 degrees, extension of 20 degrees, left lateral flexion of 20 degrees, right lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 20 degrees. Additionally, the examiner noted that the Veteran had pain with extension, left lateral flexion, and left lateral rotation. Further, there was no evidence of pain with weight bearing and no additional loss of function or range of motion after three repetitions. In addition, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limited the Veteran’s functional ability with repeated use or flare-ups. Furthermore, the Veteran had no back tenderness, muscle spasms, guarding, muscle atrophy, radiculopathy, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a brace regularly and a cane occasionally. Additionally, the Veteran had normal muscle strength, sensation, reflexes, and straight leg raise test results. Regarding functional impact, the examiner reported that the Veteran would have decreased ability to stand, bend, carry objects, and twist. See 6/26/2018 C&P Examination. The most recent VA examination was performed in December 2019. The Veteran was diagnosed with degenerative arthritis of the lumbar spine and left lower extremity radiculopathy. Regarding flare-ups, the Veteran reported that he experienced frequent episodes of more intense pain and stiffness that last 1 or 2 days. Regarding functional loss, the Veteran reported that he experienced difficulty with heavy lifting, squatting, driving, or prolonged sitting or standing. The objective examination showed that the Veteran had forward flexion of 70 degrees, extension of 20 degrees, left lateral flexion of 20 degrees, right lateral flexion of 20 degrees, right lateral rotation of 20 degrees, and lateral rotation of 20 degrees. Additionally, the examiner noted that the Veteran’s range of motion itself would inhibit bending, twisting, or his lifting ability. Further, the examiner reported that the Veteran had pain with range of motion. In addition, there was no evidence of pain with weight bearing and the examiner noted no additional loss of function or range of motion after three repetitions. Furthermore, the examiner reported that pain would significantly limit the Veteran’s functional ability with repeated use, but the examiner was unable to describe it in terms of range of motion. Additionally, the examiner reported that pain would significantly limit the Veteran’s functional ability with flare-ups; the Veteran would have forward flexion of 45 degrees, extension of 15 degrees, lateral flexion of 10 degrees, and lateral rotation of 15 degrees. Further, the Veteran had no back tenderness, muscle spasms, guarding, muscle atrophy, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a cane regularly. The Veteran had moderate radiculopathy of the sciatic nerve to the left lower extremity. In addition, the Veteran had normal muscle strength, sensation, reflexes, and straight leg raise test results. Finally, regarding functional impact, the examiner reported that the Veteran would experience difficulty with heavy lifting, squatting, driving, and prolonged sitting or standing. See 12/11/2019 C&P Examination. The Board finds the VA examination to be adequate for rating purposes, as it is based on in-person examination of the Veteran, objective testing, and medical expertise. Although the December 2019 VA examiner was unable to provide range of motion measurements after repeated use over time without resorting to mere speculation, the Board finds that the remaining medical and lay evidence is sufficient to allow it to render a decision that addresses the Mitchell and DeLuca criteria. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back disability resulted in limitation of forward flexion to 60 degrees or less for the entire period on appeal. However, the Board finds that the weight of the competent and probative evidence is against a finding that the Veteran’s low back disability resulted in limitation of forward flexion to 30 degrees or less, ankylosis, or prescribed periods of bed rest due to IVDS. The Board acknowledges the above-mentioned Veteran’s mother contentions that that the Veteran “was walking kind of stiff” and that his disability has worsened “year after year.” See 4/25/2012 Buddy/Lay Statement. Additionally, the Board acknowledges the Veteran’s contentions that his low back pain had worsened and due to his disability, he experienced difficulty squatting, standing, walking, kneeling, and stair climbing, and cannot cut grass, stand to wash dishes without a break, perform prolonged walking, or ride his motorcycle. See 10/30/2020 Medical Treatment Records – Furnished by SSA, at pages 22, 44, and 45; see also 1/25/2016 C&P Examination. However, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. The Board finds that the current rating already contemplates and compensates the Veteran for any functional loss due to pain, fatigability, weakness, and incoordination during flare-ups and after repeated use over time. In light of the foregoing, the Board finds that a rating in excess of 20 percent for a low back disability is not warranted. 3. An initial rating in excess of 20 percent for radiculopathy of the left and right lower extremities. The Veteran asserts that he is entitled to disability ratings in excess of 20 percent for radiculopathy of the left and right lower extremities. Specifically, the Veteran asserted that he experienced occasional pain radiation down to the left leg. See 1/25/2016 C&P Examination. The Veteran’s service-connected radiculopathy has been rated as 20 percent disabling for each leg under Diagnostic Code 8520. Under this regulatory provision, an 80 percent rating is warranted for complete paralysis of the sciatic nerve in which the foot dangles and drops; there is no active movement possible of the muscles below the knee; and flexion of the knee is weakened or lost. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. VA guidance states that moderate incomplete paralysis will likely be described by the veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. For severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The Court held in Miller v. Shulkin that, “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as “tending toward the mean or average amount.” Merriam-Webster’s Collegiate Dictionary 798 (11th ed. 2003). Severe is generally defined as “of a great degree” or “serious.” Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. The record shows that the Veteran’s radiculopathy of the bilateral lower extremities is currently rated under DC 8520, at 20 percent from January 4, 2016. The Board finds that a rating in excess of 20 percent for the Veteran’s radiculopathy of the bilateral lower extremities is not warranted. A July 2011 VA back examination indicated that there were no motor, sensory, or reflexive abnormalities on examination, and the straight leg raise test was negative. The January 2016 VA peripheral nerves examination showed that the Veteran was diagnosed with lumbar radiculopathy. The Veteran had symptoms, such as moderate constant and intermittent pain, numbness, and paresthesias and/or dysesthesias in his bilateral lower extremities. The objective examination showed that the Veteran had normal strength, sensation, and reflexes. Additionally, the Veteran had moderate incomplete paralysis of the sciatic and external popliteal nerves of the bilateral lower extremities. See 1/25/2016 C&P Examination. The Veteran’s most recent December 2019 VA examination showed that the Veteran was diagnosed with left lower extremity radiculopathy. The Veteran had symptoms, such as mild left lower extremity constant pain and numbness, and moderate intermittent pain and paresthesias and/or dysesthesias. The objective examination showed that the Veteran had moderate sciatic nerve incomplete paralysis of the left lower extremity. Additionally, the Veteran normal strength, reflexes, sensation, and straight leg raise test result. See 12/11/2019 C&P Examination. The Board finds the VA examinations to be adequate for rating purposes, as they are based on in-person examination of the Veteran and medical expertise. After review of the competent and probative evidence, the Board finds that a rating in excess of 20 percent for radiculopathy of the left and right lower extremities is not warranted. The weight of the competent and probative evidence is against finding moderately severe incomplete paralysis of either leg. The Board finds this evidence to be competent and probative as it was gathered by examiners who physically examined the Veteran. The competent medical findings from these examination reports tend to weigh against a higher rating. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, Associate 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.