Citation Nr: 21024401 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-28 717 DATE: April 22, 2021 ORDER A rating of 40 percent, from January 31, 2009, to October 18, 2019, for a thoracic spine disability, is granted subject to the laws and regulations regarding monetary benefits. A rating greater than 40 percent for a thoracic spine disability, is denied. A separate, 10 percent disability rating for right lower extremity radiculopathy, from February 18, 2016, is granted subject to the laws and regulations regarding monetary benefits. A separate, 10 percent disability rating for left lower extremity radiculopathy, from February 18, 2016, is granted subject to the laws and regulations regarding monetary benefits. REMANDED The appeal for a rating greater than 10 percent for a cervical spine disability is remanded. The appeal for a rating greater than 10 percent for the right knee disability is remanded. The appeal for a rating greater than 10 percent for the left knee disability is remanded. The appeal for an effective date for the 10 percent disability rating for the left knee disability prior to September 26, 2011, is remanded. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, from January 31, 2009, at worst, the thoracic spine disability resulted in forward flexion of the lumbar spine to 30 degrees but did not result in unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes with a duration of at least 6 weeks during a 12 month period. 2. Resolving doubt in favor of the Veteran, from February 18, 2016, the Veteran’s thoracic spine disability was productive of mild right and left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating from January 31, 2009, to October 18, 2019, for a thoracic spine disability, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242 (2020). 2. The criteria for a rating greater than 40 percent for a thoracic spine disability, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242 (2020). 3. Resolving all doubt in favor of the Veteran, the criteria for a 10 percent disability rating from February 18, 2016, for right lower extremity radiculopathy, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2020). 4. Resolving all doubt in favor of the Veteran, the criteria for a 10 percent disability rating from February 18, 2016, for left lower extremity radiculopathy, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5242, 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to August 2005. He served in Southwest Asia. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a December 2009 (cervical spine and thoracic spine) and January 2013 (knees) rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). Relevant to the thoracic and cervical spine claims, the Board remanded the claims for higher ratings in January 2015. Then, in February 2015, the Board vacated the decision on its own accord in order to afford the Veteran the full 90 day period to submit additional evidence in support of his claims. In May 2015, the Board once again remanded the claims for higher ratings. Relevant to the knee claims, a May 2015 Board decision denied the Veteran’s claim for increased rating and an earlier effective date for his knee disabilities. The Veteran appealed and, in February 2016, the United States Court of Appeals for Veterans’ Claims (Court) approved a Joint Motion for Partial Remand (“Joint Motion”) vacating and remanding those issues for additional development. In accordance with the Joint Motion, in July 2016, the Board remanded the knee disability claims for new VA medical examinations. The knee and spine claims were once again remanded for development in January 2019. In January 2019, the Board also remanded claims of entitlement to service connection for sleep apnea and gastroesophageal reflux disease (GERD). While on remand, service connection for sleep apnea and GERD was granted in an August 2020 rating decision. Thus, the appeals regarding service connection for sleep apnea and GERD are satisfied and will not be addressed herein. Increased Ratings 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 Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a rating greater than 10 percent prior to September 11, 2014; a rating greater than 20 percent from September 11, 2014, to October 18, 2019; and a rating greater than 40 percent from October 18, 2019, for the thoracic spine disability. Service connection for the thoracic spine disability was initially granted in an April 2006 rating decision. At that time, the agency of original jurisdiction (AOJ) assigned a 10 percent disability rating. In July 2009, the Veteran filed a claim for an increased rating. In the December 2009 rating decision on appeal, the AOJ continued the 10 percent disability rating. During the pendency of the appeal, the AOJ granted an increased rating to 20 percent from September 11, 2014. See October 2014 rating decision. Thereafter, the AOJ increased the rating to 40 percent, effective October 18, 2019. See January 2021 rating decision. The Veteran’s spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds, in pertinent part, that for DCs 5235 to 5243, a 10 percent rating is warranted for lumbar spine forward flexion 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 lumbar spine disabilities if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS 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 when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to clarify that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. As the regulations, as amended in February 2021, make the definition of incapacitating episodes even more restrictive than the former criteria, the Board will evaluate the thoracolumbar spine disability under the former, more liberal, criteria. A private treatment record authored by the Veteran’s primary care provider on January 31, 2009, indicates that the Veteran’s low back disorder had worsened in the few weeks prior to the treatment. Another private treatment record dated a few days later in February 2009 indicates that the Veteran was treated at the emergency room for severe low back pain and that magnetic resonance imaging (MRI) revealed disc herniation at L3-4. The private record also indicated that the Veteran was referred to a neuro spine surgeon for consultation. A private chiropractic treatment record also dated in February 2009 noted the Veteran was in the hospital with back pain but did not have any leg pain. The private physician noted that the Veteran’s pain was in the lumbar and sacroiliac area. The record noted that the Veteran went to the emergency room because he could not move one morning. See private chiropractor records. A July 2009 private treatment record noted the Veteran’s reports of low back pain for three days. The Veteran was afforded a VA examination of the spine in September 2009. At that time, the Veteran reported a constant sense of stiffness in his back. The Veteran denied having flare-ups and reported that he could not think of any situation that increased his pain. He reported that he was not taking any medication for the condition and required no assistive devices. He also denied any bowel, bladder, or erectile dysfunction. He reported that in February 2009, he received an epidural that gave him some relief. On objective examination in September 2009, range of motion of motion testing resulted in flexion to 90 degrees, extension to 30 degrees, right lateral bending to 30 degrees, left lateral bending to 40 degrees, right lateral rotation to 65 degrees and left lateral rotation to 55 degrees. The Veteran had full muscle strength in both lower extremities and there did not appear to be any sensory loss in either lower extremity. The examiner noted that there was no loss of joint function with repetitive use to due pain, fatigue, weakness, lack of endurance or incoordination. The examiner noted that the Veteran pointed specifically to his left sacroiliac joint as the site of his maximum pain and the examiner noted that there appeared to be some tenderness in that area. The examiner also noted, however, that there was no tenderness whatsoever on the muscle spasm related to the thoracic spine. The examiner noted that there was no swelling, heat, or redness noted. X-rays of the thoracic spine revealed no bone or disk abnormality. The examiner noted that the Veteran had the normal kyphotic curvature of the thoracic spine with no evidence of recent or old trauma or degenerative process. Overall, the examiner noted that the Veteran had experienced little to no disability from his thoracic spine. The Veteran’s attorney submitted a statement in October 2011 indicating that the Veteran had exacerbated his low back disability in December 2010 when he rotated his torso to place a camera on a table. The Veteran’s attorney also reported that the Veteran’s back had gone out twice in the four years prior to October 2011, resulting in paralyzing pain at the time. The attorney also noted the Veteran’s report of getting up two to three times per night. During the September 2014 VA examination, the Veteran reported experiencing immobility at intervals that lasted for 3 to 4 days. He reported pain rated at 7 out of 8 on the pain scale. He reported that he was treated by an acupuncture doctor for flare-ups. The Veteran reported that flare-ups occurred three to four times per week. On objective evaluation in September 2014, the Veteran had forward flexion to 70 degrees, extension to 30 or greater, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, left lateral rotation to 30 degrees. Following repetitive testing, flexion was limited to 60 degrees, extension was limited to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The September 2014 VA examiner opined that the Veteran had limited range of motion and pain in the spine that would limit functional ability during flare-ups or when the joint was used repeatedly over time; however, the examiner was note able to express any additional limitation in terms of degrees. The examiner noted that the opinion could not be rendered due to speculation. Based on the September 2014 VA examination report, the AOJ increased the Veteran’s thoracic spine evaluation to 20 percent. In the August 2015 remand, the Board determined that the September 2014 VA examination was not adequate. The Veteran was provided with another VA examination in February 2016. During the February 2016 VA examination, the examiner noted that the Veteran’s service-connected diagnosis was a lumbosacral strain. The examiner noted the Veteran’s report of progressively increasing pain since service. The examiner also noted that the Veteran denied flare-ups of the back problem. However, the Veteran reported functional impairment described as difficulty lifting and bending, can no longer run, and difficulty with prolonged sitting and driving. On objective evaluation in February 2016, the Veteran had flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. The Veteran had pain in all ranges of motion but no evidence of pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. Lower extremity testing was normal, and the examiner noted that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The examiner also noted that the Veteran did not have any other neurological abnormalities or findings related to the thoracic spine condition. The examiner noted that the Veteran did not have IVDS. Private treatment records dated in February 2016 noted the Veteran’s reports of severe back pain for more than 30 days, with radiculopathy at times. An August 2016 private imaging report noted stable mild degenerative changes in the lumbar spine. The Veteran was provided with another VA examination in October 2016. During the October 2016 VA examination, the examiner indicated that the thoracolumbar diagnoses were degenerative arthritis of the spine and thoracic spine strain. The Veteran reported that his pain in his back had increased and that he had an epidural that week for treatment. The Veteran also reported that he had numbness and tingling with flare-ups at intervals. The Veteran reported that he experienced severe flare-ups of the back disability once per month. On objective evaluation, the Veteran had flexion to 40 degrees, extension, right and left lateral flexion all to 20 degrees, and right and left lateral rotation to 25 degrees each. There was evidence of pain with weightbearing as well as objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive testing without any loss of function. The examiner was unable to estimate whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time or during flare-ups. The examiner explained that the conclusion was based on the fact that the examiner had not seen the Veteran over time and that there was no flare-up during the examination. In January 2019, the Board remanded the increased rating claim and noted that the examinations provided in February 2016 and October 2016 were inadequate as the examiner did not elicit information regarding the Veteran’s reported flare-ups in order to adequately rate the disability. On remand, the Veteran was provided with another examination in October 2019. At that time, the VA examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran reported flare-ups of the back disorder when picking up a coffee pot or leaning wrong. The Veteran explained that in most instances, flare-ups occurred when picking up an object but that they could happen even in bed when turning. The Veteran reported additional functional loss or impairment as awkward posture, cannot fully extend back, cannot sit, cannot work behind a desk, cannot do physical labor, can barely walk [during a flare-up]. On objective evaluation in October 2019, the Veteran had flexion to 75 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 12 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. The examiner noted that the limitation of motion made standing, sitting, walking difficult and also made it difficult for the Veteran to stand straight. Pain causing additional functional loss was noted in all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive testing, but motion was further limited. Following repetitive testing, the Veteran had flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 16 degrees, left lateral flexion to 29 degrees, right lateral rotation to 23 degrees, and left lateral rotation to 18 degrees. Although the examiner did not evaluate the Veteran after repeated use over time, the examiner was able to describe any further limitation in terms of degrees as follows: flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 16 degrees, left lateral flexion to 29 degrees, right lateral rotation to 23 degrees, and left lateral rotation to 10 degrees. Similarly, the examiner noted that the evaluation was not conducted during a flare-up but additional limitation during a flare-up, in terms of range of motion was as follows: flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 16 degrees, left lateral flexion to 29 degrees, right lateral rotation to 23 degrees, and left lateral rotation to 18 degrees. The October 2019 VA examiner also noted that the Veteran had guarding or muscles spasm that resulted in abnormal gait or abnormal spinal contour. The examiner explained that the Veteran was unable to stand straight when muscle spasm is severe. The examiner also described the Veteran’s guarding as the Veteran being unable to stand straight and walking very gingerly. Overall, the examiner noted that the Veteran’s back disability resulted in walking a limited range of 5 feet before pain, that sitting increased pain after a couple of minutes, and that standing led to bad pain in minutes. The Veteran had full muscle strength. Sensory testing was normal on both lower extremities. The October 2019 VA examiner determined that the Veteran did not have any radicular pain or other signs or symptoms due to radiculopathy. The examiner also noted that the Veteran did not have IVDS. Regarding assistive devices, the October 2019 VA examiner noted that the Veteran occasionally used a brace for his back condition and that the brace decreased some of the Veteran’s pain and increased his mobility. VA and private treatment are consistent with the October 2019 VA examination regarding the Veteran’s back disability. As discussed above, private treatment records dated in February 2016 also indicate onset of bilateral lower extremity radiculopathy. Following the October 2019 VA examination, the AOJ increased the Veteran’s back disability rating to 40 percent, effective October 18, 2019, the date of the VA examination. See January 2021 rating decision. Based on the foregoing, the Board resolves doubt and finds that the Veteran is entitled to a 40 percent disability rating for the entire period on appeal. In this regard, the September 2014, February 2016, and October 2016 VA spine examination reports dated prior to October 2019 were inadequate as they did not adequately describe the Veteran’s limitation of motion during flare-ups. The Board acknowledges that the September 2009 VA examination report indicated that the Veteran denied flare-ups. However, given the private treatment records dated earlier in 2009 which indicate flare-ups so severe that the Veteran had to seek treatment from the emergency room, the Board places only a limited probative value on the September 2009 range of motion findings. Moreover, the Board finds that the appropriate effective date for the increased rating is January 31, 2009, the first ascertainable date of evidence of worsened symptoms, the date that the Veteran was admitted to a private hospital emergency room for back pain. This date falls within the one year period prior to the claim for increased rating filed in July 2009. See 38 C.F.R. § 3.400(o). Notably, the Board has considered whether the Veteran may be entitled to a temporary total rating for hospitalization due to the service-connected disability but finds that he is not as there is no indication that the Veteran was hospitalized for 21 days or more. The private record indicates that the hospital visit was an emergency room visit, not an overnight admission. The grant of the 40 percent disability rating is the maximum available rating for limitation of motion. Thus, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet.App. 202 (1995) is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Further, there is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine as required to support a rating a 50 percent or 100 percent disability rating, at any time. See e.g. October 2019 VA examination report. The Board has also considered whether a higher rating is warranted for IVDS but finds that it is not. In this regard, none of the VA examination reports, private or VA treatment records indicated that the Veteran had a diagnosis of IVDS or six weeks of physician-prescribed bedrest. Further, the Board finds that separate, 10 percent ratings are warranted for mild lower extremity radiculopathy in each lower extremity, effective February 18, 2016. The February 2016 record is the first objective evidence of lower extremity radiculopathy and indicates that the radiculopathy was bilateral. The Board has considered whether higher ratings are warranted for lower extremity radiculopathy but finds that they are not as objective evidence of radiculopathy was not noted on objective testing of the lower extremities during the October 2016 and October 2019 VA examination reports. Additionally, no muscle atrophy has been shown at any time. See October 2019 VA examination report; see also VA and private treatment records. The evidence does not suggest, and the Veteran has not reported, any additional neurological complaints associated with the lumbar spine disability. In reaching this conclusion, the Board has considered the Veteran’s attorney’s October 2011 statement which indicated that the Veteran had urinary frequency at night due to his spine condition. However, in each of the VA examinations, the Veteran consistently denied any bowel or bladder complaints, or any other neurological symptoms associated with his back pain. The Board acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant higher ratings; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran’s assessment of the severity of his disabilities. In sum, resolving all doubt in favor of the Veteran, the Board finds that a higher, 40 percent disability rating is warranted for the thoracic spine disability from January 31, 2009 and separate 10 percent disability ratings are warranted for right and left lower extremity radiculopathy, from February 18, 2016. Further, the Veteran is not entitled to higher ratings for the thoracic spine disability or associated lower extremity radiculopathy at any time pertinent to the appeal. See Hart, supra. REASONS FOR REMAND Entitlement to a rating greater than 10 percent for cervical spine disability. The Board remanded the appeal for a higher rating for the cervical spine disability in January 2019, in pertinent part for a VA examiner to estimate limitation of motion during flare-ups. While on remand, the Veteran was provided with a VA examination in October 2019 but the examiner once again, did not estimate the limitation of motion during a flare-up. As such, the Veteran should be provided with another VA examination or opinion. Entitlement to a rating greater than 10 percent for a left knee disability. Entitlement to a rating greater than 10 percent for a right knee disability. The Board remanded the appeals for higher ratings for the right and left knee disabilities in January 2019, in pertinent part for a VA examiner to estimate limitation of motion during flare-ups. While on remand, the Veteran was provided with a VA examination in October 2019 but the examiner did not estimate the limitation of motion during a flare-up. The Board acknowledges that the October 2019 VA examiner determined that the Veteran did not experience flare-ups at the time of the examination; however, as the Veteran previously reported flare-ups, the examiner should have offered a retroactive opinion regarding those flare-ups or explained why such was not possible. Moreover, if the examiner estimated that the Veteran’s “flare-up” was consistent with the limitation following repetitive use, the examiner should have so stated. Additionally, the October 2019 VA examiner noted the Veteran’s reports of giving way but also noted that instability testing was normal. Given the recent changes in VA regulation regarding instability, on remand, the examiner should be asked to note whether the Veteran’s giving way is persistent. For these reasons, the Veteran should be provided with another VA examination or opinion. Entitlement to an effective date earlier than September 26, 2011, for assignment of a 10 percent rating for the left knee disability. The Veteran’s claim for increased rating for his left knee disability is remanded, as discussed above. The claim for and earlier effective date for the left knee disability rating is, in part, dependent on the outcome of the increased rating claim. Accordingly, it is inextricably intertwined with the remanded claim, and must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Thus, the Board will not address the issue at this time. The matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his cervical cervical spine disability and bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all cervical spine pathology and bilateral knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Even if the Veteran reports that he no longer experiences flare-ups, the examiner is asked to address any limitation caused during prior flare-ups, including those which were reported at prior VA examinations. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Further, regarding the knee disabilities, the examiner is asked to address whether the Veteran’s reported “giving way” is persistent. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.