Citation Nr: 21025362 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-24 133A DATE: April 27, 2021 ORDER From May 1, 2010, to April 10, 2014, a rating in excess of 10 percent for a right knee disability is denied. From April 11, 2014, to October 15, 2018, outside a period of convalescence, a 20 percent rating for a right knee disability is granted. From December 1, 2019, a rating in excess of 30 percent for a right knee disability is denied. A rating of 20 percent for a lumbar spine disability is granted. FINDINGS OF FACT 1. From May 1, 2010, to April 10, 2014, the Veteran’s right knee disability was not productive of ankylosis, recurrent subluxation or lateral instability, a semilunar cartilage condition, flexion functionally limited to 30 degrees or less, extension functionally limited to 10 degrees or more, an impairment of the tibia and fibula, or genu recurvatum. 2. From April 11, 2014, to October 15, 2018, outside a period of convalescence, the Veteran’s right knee disability was manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint; however, the Veteran’s right knee disability was not productive of ankylosis, recurrent subluxation or lateral instability, flexion functionally limited to 45 degrees or less, extension functionally limited to 10 degrees or more, an impairment of the tibia and fibula, or genu recurvatum. 3. From December 1, 2019, the Veteran’s right knee following a total knee replacement has not been manifested by chronic residuals consisting of severe painful motion and weakness, ankylosis, extension functionally limited to 30 degrees or more, or an impairment of the tibia and fibula. 4. Resolving all reasonable doubt in favor of the Veteran, the objective medical evidence and the Veteran’s statements regarding her symptomatology of her lumbar spine disability show a disability picture that most nearly approximates an assignment of a 20 percent rating. CONCLUSIONS OF LAW 1. From May 1, 2010, to April 10, 2014, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5256-63. 2. From April 11, 2014, to October 15, 2018, outside a period of convalescence, the criteria for a 20 percent rating for a right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a; Diagnostic Codes 5010, 5256-63. 3. From December 1, 2019, the criteria for a rating in excess of 30 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262. 4. The criteria for a disability rating of 20 percent for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to April 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2012 and November 2020 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the RO granted service connection for obstructive sleep apnea. This represents a complete grant of the appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” The 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). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Right Knee Disability At the outset, the Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. The regulations for rating knee disabilities under Diagnostic Codes 5258, 5260, and 5261 have not changed. Under Diagnostic Code 5010, applicable to traumatic arthritis, traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides for rating on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Degenerative or traumatic 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent 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 for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Codes 5258 and 5259 evaluates semilunar cartilage, or the meniscus. A 20 percent rating is assigned for a dislocated meniscus with frequent episodes of ‘‘locking,’’ pain, and effusion into the joint under Diagnostic Code 5258. A 10 percent rating is assigned for removal of the meniscus that is symptomatic under Diagnostic Code 5259. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for extension limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Prior to February 7, 2021, Diagnostic Code 5055, which evaluates knee replacement, provided that a 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in an intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness, and a 100 percent rating may be assigned for one year following implantation of prosthesis. Under criteria that became effective February 7, 2021, Diagnostic Code 5055 provides that prosthetic replacement of the knee joint warrants a 30 percent minimum rating for total replacement only. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for four months following implantation of the prosthesis or resurfacing. From May 1, 2010, to April 10, 2014 The Veteran seeks a higher rating for her right knee disability from May 1, 2010, to April 10, 2014. During this period, the Veteran’s right knee disability is rated as 10 percent disabling under Diagnostic Codes 5010-5260. At a November 2011 orthopedic examination, conducted in Frankfurt, Germany, the Veteran reported that her pain was primarily located behind the kneecap with an intensity of 6 to 7 with reactive effusion. Her knee did not give out. It was hard to use the stairs and going upstairs was more painful than going downstairs. She did not use orthotics or walking aids. She was able to tolerate sitting with her knees bent for about 15 minutes, then the knee pain became too great. Examination revealed no effusion. Collateral ligaments were stable in 0 degrees and 30 degrees flexion positions. There were no anterior or posterior drawer signs. Lachmann’s, Meniscus, and Clarke’s sign tests were negative. Flexion was limited to 124 degrees. For the following reasons, an increased rating in excess of 10 percent for osteoarthritis of the right knee, under Diagnostic Codes 5010-5260, is not warranted during the period on appeal. The range of motion of the right knee was, at worst, flexion to 124 degrees with pain. The Board acknowledges that the November 2011 orthopedic examination did not specify the type of testing on which ROM results were based (i.e. active or passive, weight-bearing or non-weight bearing), or provide results for each type of test, as required under Correia. There were also no flare-ups reported during the November 2011 orthopedic examination and no evidence of flare-ups reported during the period on appeal. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The evidence does not reflect that any flare-ups would be of such a significant degree to result in flexion limited to 30 degrees warranting a higher 20 percent rating under Diagnostic Code 5260. Furthermore, the Board has considered all of the evidence of record, and concludes that for the period on appeal, the evidence is sufficient to determine that even during any flare-ups, her disability did not approximate the criteria for a higher or additional rating. The evidence does not support a separate rating for limitation of extension under Diagnostic Code 5261. Here, there is no evidence of any limitation of extension of record, as limitation of extension was to 0 degrees even when considering pain and functional loss. See private examination report dated November 2011. There is also no indication that any flare-ups would have resulted in additional limitation of extension warranting a separate compensable rating. Thus, a separate rating under Diagnostic Code 5261 is not warranted. The Board must also consider whether the Veteran is entitled to a rating under any other potentially applicable Diagnostic Code. The evidence shows that the Veteran reported that her knee did not give out and no other evidence reflects evidence of locking or giving way. Therefore, a separate rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Diagnostic Code 5258 is not warranted. With respect to Diagnostic Code 5259, the record during the period on appeal does not contain any evidence of any semilunar cartilage condition; therefore, Diagnostic Code 5259 does not apply. Finally, the Board has considered the applicability of other potential Diagnostic Codes. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively, in the right knee. In sum, the Board concludes that, from May 1, 2010, through April 11, 2014, the criteria for a rating in excess of 10 percent under Diagnostic Code 5010-5260 for a right knee disability have not been met and, to this extent, the Veteran’s claim is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. From April 11, 2014, to October 15, 2018 During this period, the Veteran’s right knee disability was evaluated under a number of Diagnostic Codes during this period. From April 11, 2014, to May 21, 2014, she was assigned a 20 percent rating under Diagnostic Code 5258. From May 22, 2014, to June 30, 2014, she was assigned a 100 percent rating for surgical convalescence. From July 1, 2014, to April 1, 2018, she was assigned a 10 percent rating under Diagnostic Code 5260. From April 2, 2014, to October 15, 2018, she was assigned a 20 percent rating under Diagnostic Code 5258. The Board finds that for this entire period, the Veteran was entitled to a 20 percent rating under Diagnostic Code 5258. On April 11, 2014, a right knee MRI showed a torn medial meniscus. On examination, she had right knee joint effusion. In May 2014, the Veteran underwent a partial meniscectomy. She continued to report right knee pain in September 2014. An April 2018 MRI of the Veteran’s right knee was conducted at the Western Missouri Medical Center following the Veteran’s complaints of right knee pain. The MRI revealed advanced subchondral cystic changes involving the medial femoral condyle and medial tibial plateau with osteophytosis, degenerative change in subchondral cystic changes involving the lateral femoral condyle posteriorly with osteophytosis present. There was no bony contusion, formal fracture, or other imaged abnormality. The patella had uniform signal intensity and was unremarkable. The ACL, PCL, medial collateral and fibular collateral ligaments were intact and unremarkable. Patellar and quadriceps tendons had uniform signal intensity and were unremarkable. Popliteal fossa were grossly unremarkable without popliteal cyst. Marked abnormal signal intensity noted in the posterior medial meniscus with oblique and horizontal intra-articular tear. Anterior medial meniscus was degenerative without intra-articular extension was clear and there was diffuse cartilaginous thinning noted medially. Posterior laterally, the meniscus was absent either surgically or secondary to posttraumatic change with degenerative signal noted in the foreshortened and truncated anterior lateral meniscus. There was diffuse cartilaginous thinning laterally. No intra-articular loose body with moderately large sub-/suprapatellar effusion with superior and numerous medial and lateral plica. There was moderately large intra-articular joint effusion. A May 2018 private treatment record reflects the Veteran’s complaints of pain with activity and some discomfort with rest. She had difficulty with stair climbing. Examination revealed no erythema or ecchymosis of the right knee. There was effusion, tenderness, crepitus, valgus deformity, lateral retinacular tenderness, and pseudo-laxity with a varus stress test. An August 2018 private treatment record reflects an examination of the Veteran’s right knee. Examination revealed no erythema or ecchymosis of the right knee. There was effusion, tenderness, crepitus, valgus deformity, lateral retinacular tenderness, and pseudo-laxity with a varus stress test. Range of motion testing revealed extension to 5 degrees and flexion to 115 degrees. In August 2020, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with a right knee meniscal tear from 2014. She reported intermittent right knee pain after extended use. The examiner indicated that the Veteran’s meniscal condition resulted in frequent episode of joint pain due to a 2014 right knee arthroscopy for a right meniscal tear. The Board finds that the criteria to assign a 20 percent rating under Diagnostic Code 5258 from April 11, 2014, to October 15, 2018, is warranted. The Veteran’s right knee disability resulted in a meniscal tear in April 214, and she underwent right knee meniscal surgery in May 2014. After the surgery, she continued to report right knee pain. While the Veteran has been assigned a 20 percent rating under Diagnostic Code 5258 from April 11, 2014, to May 21, 2014, and from April 2, 2018, to October 15, 2018, she was also assigned a 10 percent rating under Diagnostic Code 5260 from July 1, 2014, to April 1, 2018. However, as the Veteran’s symptoms have been consistent, and the August 2020 VA examiner indicated that the Veteran had frequent episodes of joint pain due to her right knee surgery, a 20 percent rating under Diagnostic Code 5258 for this period on appeal is more appropriate. Regarding limitation of flexion, the Veteran demonstrated right knee flexion to 115 degrees, which exceeds the 60 degree limitation equivalent to a noncompensable rating. Accordingly, the Veteran is not found to have met the criteria for a noncompensable rating under Diagnostic Code 5260, which requires flexion to be limited to 45 degrees. Turning to limitation of extension, the Board finds that the criteria to assign separate compensable rating under Diagnostic Code 5261 have not been met. The Veteran had extension limited to 5 degrees, which is equivalent to a noncompensable rating. Accordingly, the Veteran is not found to have met the criteria for a compensable rating under Diagnostic Code 5261, which requires extension to be limited to 10 degrees. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 for either knee. See also DeLuca, 8 Vet. App. 202. The Veteran’s treatment records do not document flexion or extension equivalent to compensable ratings during this time period. As such, the evidence simply does not support the conclusion that the Veteran’s right knee disability resulted in findings consistent with higher ratings. Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca from April 11, 2014, to October 15, 2018. While the Veteran has been shown to experience right knee pain, the Veteran consistently retained flexion and extension in excess of compensable ratings. As such, there is no basis for higher ratings under Diagnostic Codes 5260 or 5261. To the extent that it is argued that the Veteran’s range of motion was painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that 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. However, here, the Veteran is now assigned a 20 percent rating under Diagnostic Code 5258 from April 11, 2014, to October 15, 2018 , and a rating in excess of 20 percent based on pain alone is not warranted. Accordingly, the criteria for a schedular rating of 20 percent for the Veteran’s right knee disability from April 11, 2014, to October 15, 2018, outside a period of convalesce, have been met, and the Veteran’s claim is granted.   From December 1, 2019 From December 1, 2019, the Veteran’s right knee disability is assigned a 30 percent rating under Diagnostic Code 5055, which is the minimum rating following a total knee replacement. Pursuant to the January 2019 Board remand, the Veteran underwent VA examination in August 2020. Following a total right knee joint replacement, the Veteran reported that currently, she did not have constant knee pain anymore. She reported that she would only get intermittent pain if she had been working a lot in her yard. She denied current treatment if her knee hurt and would just rest. She did not report flare-ups. The Veteran reported having functional loss or functional impairment of her right knee in that she could not bend it to get onto the floor for something. Flexion was limited to 110 degrees and extension was to 0 degrees. There was no pain noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Pain and weakness caused this functional loss. In terms of range of motion, flexion was limited to 100 degrees and extension was to 0 degrees. The examination was not being conducted during a flare up. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare up. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. There were no additional factors contributing to disability. Muscle strength was normal and there was no reduction in muscle strength. The Veteran did not have muscle atrophy. There was no ankylosis and no joint instability. The Veteran had a meniscus (semilunar cartilage) condition which involved a meniscal tear and frequent episodes of joint pain. The examiner noted that in October 2018, the Veteran had a total right knee joint replacement. Residuals included intermediate degrees of residual weakness, pain or limitation of motion. She also had an arthroscopy in 2014. The Veteran did not report the use of any assistive devices. Due to the Veteran’s right knee condition, there was no functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted the Veteran worked as a records information management specialist. She lost no more than one week of work in the past 12 months. The examiner again noted the Veteran’s report that she could not bend her right knee to get onto the floor for something. The examiner indicated this impact was related to status post right knee arthroplasty. The Veteran no longer had functional loss related to arthritis or meniscal tear as this was corrected in surgery. There was no objective evidence of pain on passive range of motion testing. There was no objective evidence of pain when the joint was used in non-weight bearing. The Veteran’s VA and private treatment records do not reveal any findings that would warrant a rating in excess of 30 percent. Upon review of the record, the criteria to assign a rating for the Veteran’s right total knee replacement in excess of 30 percent have not been met under both the former and revised criteria set forth in Diagnostic Code 5055. The Veteran’s right knee disability was not shown to result in severe residuals consisting of severe painful motion or weakness, which would be consistent with a 60 percent rating under Diagnostic Code 5055. The August 2020 VA examiner specifically found that the Veteran’s right knee residuals were best characterized as intermediate degrees of residual weakness, pain, or limitation of motion. The August 2020 VA examiner noted that there was pain and weakness in the right knee and that the Veteran reported she could not bend it to get onto the floor for something. However, the Veteran has not shown severe weakness. In fact, she showed 5/5 strength in the right knee at the August 2020 VA examination. The Veteran’s collective symptoms of her right total knee replacement do not indicate chronic residuals consisting of severe painful motion or weakness. The Board further concludes, based on the evidence, that a rating in excess of 30 percent is not warranted for the Veteran’s service connected right total knee replacement, under Diagnostic Code 5055, including in light of 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia. Lastly, higher ratings under Diagnostic Codes 5256, 5261 and 5262 are not available as ankylosis has not been found in either knee, extension has not been shown to be limited to 30 degrees or more, and there is no evidence of impairment of the tibia and fibula. As such, a rating in excess of 30 percent under Diagnostic Code 5055 have not been met. Lumbar Spine Disability The Veteran’s lumbar degenerative disc disease with levoscoliosis with is rated under Diagnostic Code 5242. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. The regulations for rating lumbar spine disabilities under SC 5242 have not changed. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gain or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Formula. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General 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. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Pursuant to the January 2019 Board remand, the Veteran was afforded an August 2020 VA examination. She was diagnosed with spondylolisthesis and degenerative disc disease lumbar spine with levoscoliosis. The Veteran reported that she had low back pain on her right side. She reported going to pain management every 6 months to a year, and that they burn the nerves in her back. She further reported that following that, she would be “pretty much” symptom free for months after that. The Veteran stated that she was able to tell when the nerves regenerate because her low back would start aching again. The Veteran stated she no longer had numbness, tingling or shooting pain in her leg after spinal fusion surgery. She received radiofrequency ablations at least once per year. She reported flare-ups described as sharp stabbing pain like someone put a knife in her back and twisted it. This occurred once or twice per year and the severity was a 7 out of 10. It lasted until she could have another ablation procedure. She reported having functional loss or functional impairment described as difficulty sitting, standing or walking for extended periods of time due to discomfort and stiffness. Range of motion testing was normal. Pain was noted on examination but did not result in or cause functional loss. Bilateral lateral flexion and bilateral lateral rotation exhibited pain. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examination was not being conducted during a flare up. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups. Pain and weakness caused this functional loss. The examiner indicated the Veteran did not have guarding or muscle spasm. Muscle strength testing was normal. Straight leg raising test was negative. She did not have any radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have IVDS. She did not report the use of any assistive devices. Due to the Veteran’s lumbar spine condition, there was no functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. There was no objective evidence of pain when the spine is non-weight bearing. Passive range of motion testing of the spine was not performed as it was not feasible to do so in a safe and reasonable manner. The examiner also noted x-rays on the day of examination were not clinically indicated. In December 2020 correspondence, the Veteran reported that she suffered from muscle spasms and that daily medication had been prescribed for this condition. She further reported having been diagnosed with scoliosis. Based on the foregoing, the Board finds that an increased rating of 20 percent, but no higher, is warranted effective May 1, 2010, the date of the claim on appeal. The Board finds the Veteran’s statements regarding muscle spasms to be credible and notes that the Veteran also has scoliosis, which was identified in private treatment records and has been present throughout the period on appeal. Although the August 2020 VA examination did not reflect report of muscle spasms, private treatment records reflect the Veteran has been prescribed medication used to treat and relieve muscle spasms, namely Tizanidine. Muscle spasms with scoliosis warrants a 20 percent rating. To warrant a rating in excess of 20 percent for the thoracolumbar spine, there would need to be forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine. Forward flexion has been documented as 90 degrees at worst, even after repetitive testing, and there has been no evidence of ankylosis throughout the appeal period. See, e.g., August 2020 VA examination report. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The August 2020 VA examiner, however, specifically stated that there was no further loss of motion or limitation of function after repetitive testing due to factors such as pain. There is no evidence of additional functional loss due to pain or other factors which would warrant the assignment of an increased rating in this case. Additionally, the Veteran’s complaints of pain on motion are fully contemplated by her current ratings. 38 C.F.R. § 4.59. Additionally, considering all the evidence of record, including range of motion testing results, the evidence weighs against a finding of forward flexion limited to 30 degrees or less, even considering with repetition or during flare-ups. See Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. No additional higher or alternative ratings under different Diagnostic Codes can be applied at any point during the period on appeal. The August 2020 VA examiner noted that the Veteran did not have IVDS, and the VA and private treatment records do not contain show IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Therefore, an increased rating based on IVDS is not warranted. Id. Similarly, as ankylosis of the thoracolumbar spine is not shown, a rating higher than 20 percent is not warranted. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, the August 2020 VA examiner stated that there was no evidence of radiculopathy associated with the low back disability, and treatment records from the period on appeal contain no diagnoses of radiculopathy or abnormal neurologic evaluations. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Throughout the appeal period, the preponderance of the evidence supports a 20 percent rating, but no higher, for the Veteran’s lumbar spine disability due to the occurrence of muscle spasms and diagnosis of scoliosis during that time. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.