Citation Nr: 21025400 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-31 855 DATE: April 28, 2021 ORDER The issue of the propriety of the severance of the duplicate 20 percent disability rating for service-connected degenerative arthritis of the spine (hereafter referred to as a "low back disability") is dismissed. Entitlement to a disability rating in excess of 10 percent for service-connected left cheek epidermal cyst removal with residual scar (hereafter referred to as a "left cheek disability") is dismissed. Entitlement to service connection for a bilateral shoulder disability is dismissed. Entitlement to service connection for a heart disability is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for an acquired psychiatric condition, secondary to service-connected orthopedic conditions, is granted. Restoration from a 10 to a 20 percent disability rating for service-connected right knee osteoarthritis (hereafter referred to as a "right knee disability") is granted. Restoration from a 10 to a 30 percent disability rating for service-connected left knee limitation of extension (hereafter referred to as a "left knee disability based on range of motion") is granted. Prior to June 5, 2020, entitlement to a separate disability rating in excess of 10 percent for service-connected residuals of internal derangement left knee, status post arthroscopy times two (hereafter referred to as a "left knee disability") is denied. Prior to June 5, 2020, entitlement to an initial disability rating in excess of 20 percent for service-connected low back disability is denied. Prior to November 30, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is denied. Beginning November 30, 2017, entitlement to an initial 20 percent disability rating for service-connected radiculopathy of the right lower extremity is granted. Prior to November 30, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity is denied. Beginning November 30, 2017, entitlement to an initial 20 percent disability rating for service-connected radiculopathy of the left lower extremity is granted. Prior to June 5, 2020, entitlement to an initial disability rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity is denied. Prior to June 5, 2020, entitlement to an initial disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity is denied. Prior to June 5, 2020, entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. REMAND Beginning June 5, 2020, entitlement to a disability rating in excess of 10 percent for service-connected left knee disability is remanded. Beginning June 5, 2020, entitlement to an initial disability rating in excess of 20 percent for service-connected low back disability is remanded. Beginning June 5, 2020, entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is remanded. Beginning June 5, 2020, entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity is remanded. Beginning June 5, 2020, entitlement to a compensable disability rating for service-connected bilateral hearing loss is remanded. Entitlement to total disability based on individual unemployability (TDIU) prior to April 7, 2015, and beginning August 1, 2016, is remanded. FINDINGS OF FACT 1. At his June 5, 2020, hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of the propriety of the severance of the duplicate 20 percent disability rating for service-connected low back disability. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 2. At his June 5, 2020, hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to a disability rating in excess of 10 percent for service-connected left cheek disability. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 3. At his June 5, 2020, hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for a bilateral shoulder disability. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 4. At his June 5, 2020, hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for a heart disability. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 5. At his June 5, 2020, hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for hypertension. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 6. The Veteran’s acquired psychiatric disability proximately is due to his orthopedic service-connected disabilities. 7. The Veteran has not experienced improvement in his service-connected right knee disability that reflects an improvement in his ability to function under the ordinary conditions of life and work. 8. The Veteran has not experienced improvement in his service-connected left knee disability on the basis of range of motion that reflects an improvement in his ability to function under the ordinary conditions of life and work. 9. Prior to June 5, 2020, the Veteran’s service-connected left knee disability manifests no more than mild instability. 10. Prior to June 5, 2020, the Veteran’s service-connected low back disability does not manifest limitation of forward flexion to at least 30 degrees or ankylosis of any kind. 11. Prior to November 30, 2017, the Veteran’s service-connected radiculopathy of right lower extremity manifests mild symptoms. 12. Prior to November 30, 2017, the Veteran’s service-connected radiculopathy of left lower extremity manifests mild symptoms. 13. Beginning November 30, 2017, the Veteran’s service-connected radiculopathy of right lower extremity manifests moderate symptoms. 14. Beginning November 30, 2017, the Veteran’s service-connected radiculopathy of left lower extremity manifests moderate symptoms. 15. Prior to June 5, 2020, the Veteran’s service-connected radiculopathy of right lower extremity manifests symptoms no greater than moderate. 16. Prior to June 5, 2020, the Veteran’s service-connected radiculopathy of left lower extremity manifests symptoms no greater than moderate. 17. Prior to June 5, 2020, the Veteran’s better ear (left) manifests Level I hearing impairment, and his worse ear (right) manifests Level IV hearing impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of the propriety of the severance for the duplicate 20 percent disability rating for service-connected low back disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 2. The criteria for withdrawal of entitlement to a disability rating in excess of 10 percent for service-connected left cheek disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 3. The criteria for withdrawal of entitlement to service connection for a bilateral shoulder disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 4. The criteria for withdrawal of entitlement to service connection for a heart disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 5. The criteria for withdrawal of entitlement to service connection for hypertension are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 6. The criteria for entitlement to service connection for an acquired psychiatric disability, as secondary to service-connected orthopedic disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for restoration from a 10 to a 20 percent disability rating for service-connected right knee disability are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), (i), 3.344(a)–(b), 4.1, 4.2, 4.10. 8. The criteria for restoration from a 10 to a 30 percent disability rating for service-connected left knee disability based on range of motion are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), (i), 3.344(a)–(b), 4.1, 4.2, 4.10. 9. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 10. The criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243. 11. Prior to November 30, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 12. Prior to November 30, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 13. Beginning November 30, 2017, the criteria for entitlement to an initial 20 percent disability rating for service-connected radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 14. Beginning November 30, 2017, the criteria for entitlement to an initial 20 percent disability rating for service-connected radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 15. Prior to June 5, 2020, the criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 16. Prior to June 5, 2020, the criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, DC 8520. 17. Prior to June 5, 2020, the criteria for entitlement to a compensable disability rating for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to October 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was conducted via video conference in conjunction with the RO in Nashville, Tennessee. A transcript of this hearing is contained within the electronic claims file. See June 5, 2020, Hearing Transcript (Tr.). Voluntary Dismissal As it pertains to oral withdrawals of appeals at a Board hearing, withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57–58 (2011). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement (NOD) and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). At the hearing, the undersigned Veterans Law Judge (VLJ) asked if it was correct that the issues of (1) the propriety of the severance for the duplicate low back rating; entitlement to (2) a disability rating in excess of 10 percent for a left cheek disability; service connection for (3) a bilateral shoulder disability, (4) a heart disability, and (5) hypertension were being withdrawn. Counsel confirmed that the VLJ was correct. Tr. at 2. The VLJ further clarified of the Veteran and Counsel that they were aware that by withdrawing these appeals, the Veteran would “lose any effective date that [the Veteran] might have gotten if [he decides to] file . . . later. Counsel confirmed on the Veteran’s behalf that he was aware of such consequences. Id. 2–3. The Board is satisfied that, with respect to the above-noted issues, the Veteran—through private Counsel—effectively has withdrawn these issues. Thus, the NOD and substantive appeal for these issues have been withdrawn, and the Board no longer has jurisdiction to adjudicate these appeals. They, therefore, are dismissed. See Acree, 891 F.3d at 1012; 38 C.F.R. § 19.55(c). Service Connection The Veteran contends that the limitations he experiences due to his various service-connected orthopedic conditions have caused him to become depressed. Tr. at 4. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. In October 2015, the Veteran’s Social Security Administration (SSA) records were uploaded into his VA claims file. In pertinent part, there is a September 2009 mental evaluation by Dr. M.J. Under the section discussing the Veteran’s affect and mood, Dr. M.J. noted that the Veteran stated that he “does not want to live or exist by having needles ‘shot through [his] spine.’” At his hearing, the Veteran testified that, due to his service-connected orthopedic conditions, he no longer is able to enjoy, gardening, yard care, and fishing; he further noted that his overall decreased mobility has increased his depression. Tr. at 4. The VLJ left the record open for sixty days so that the Veteran could supplement the record with a medical opinion expressing a relationship between the Veteran’s orthopedic disabilities and his psychiatric disability. Id. at 5. In December 2020, the Veteran submitted a private Psychological Evaluation completed by Dr. D.D. in October 2020. The report indicates that the Veteran has a diagnosis of depressive disorder due to another medical condition. Specifically, Dr. D.D. stated that the progression of [the Veteran’s] depression is greater than expected and is clearly connected to his medical difficulties, which occurred as a result of his service in the Army. In the opinion of the undersigned [the Veteran’s] depression is at least as likely as not a result of his service-connected conditions. Based on this evidence alone, the Board finds that secondary service connection is warranted. The Veteran has a diagnosis of depression and is service connected various orthopedic and neurological conditions. Dr. D.D. has opined that the depression is secondary to the Veteran’s service-connected conditions, and the SSA evaluation confirms that the Veteran has been experiencing depressive-like symptoms due to, at least in part, his back pain. Thus, the Board finds that all the necessary elements of secondary service connection have been established, and the Veteran’s appeal on this issue is granted. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Rating Reductions Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In any rating reduction case, it must be determined that an improvement in a disability actually has occurred, and also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281–82. For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. 38 C.F.R. § 3.344(c). For ratings in effect for five years or more, 38 C.F.R. § 3.344(a)–(b) applies. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. The Veteran’s 30 percent rating was effective beginning November 17, 2011, and his reduction to 10 percent was effective August 1, 2016. Because the 30 percent rating was established for less than five years, the provisions of 38 C.F.R. § 3.344(a)–(b) do not apply in this case. With a rating reduction that results in a reduction in the overall amount of compensation paid, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). When VA makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). VA must issue a rating action proposing the reduction and set forth all material facts and reasons for the reduction. The Veteran must then be given sixty days to submit additional evidence and thirty days to request a predetermination hearing. A rating action then will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i). In January 2016, VA issued to the Veteran a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. In the February 2016 notice letter accompanying the rating action, the RO informed the Veteran that he had sixty days to submit additional evidence showing that his compensation payments should be continued at their present level, and thirty days from the date of the notice letter to request a predetermination hearing. The Veteran neither submitted additional evidence, nor did he request a hearing. In a May 2016 rating decision, VA effectuated the reductions. The right knee disability was reduced from 20 to 10 percent, and the left knee disability based on range of motion was reduced from 30 to 10 percent. The effective date of the reductions was August 1, 2016, which is more than the last day of the month in which the sixty-day period from the notice of the rating action ended. See 38 C.F.R. § 3.105(e). For these reasons, the Board finds that VA has complied with the procedural due process requirements of 38 C.F.R. § 3.105(e). Thus, the Board now will assess the merits of the reductions, finding that such action was not warranted. While the pertinent question is not whether the Veteran currently meets the schedular criteria for a particular rating, it is helpful in this case to examine the relevant criteria here. The Veteran’s left and right knee were rated under DC 5260—limitation of flexion—but actually were rated under the criteria for limitation of extension, DC 5261. Under the latter, a 30 percent disability rating requires extension of the leg be limited from 29 to 20 degrees. A 20 percent disability rating requires extension of the leg be limited from 19 to 15 degrees. A 10 percent disability rating requires extension of the leg be limited from 14 to 10 degrees. Limitation to 5 degrees is rated as noncompensable. The Veteran’s left knee was awarded the 30 percent rating for range of motion (ROM) purposes on the basis that he experienced limitation of extension to 20 degrees; the right knee was awarded the 20 percent rating for limitation of extension to 15 degrees. March 5, 2012, Rating Decision. The February 2012 VA examination that reported these limitations in the Veteran’s knees noted that the Veteran constantly used a walker, could not walk more than 100 feet without rest or assistance, and experienced painful motion. The SSA records include a decision that found that the Veteran partly was unemployable due to his left knee. Although a December 2015 VA examination showed improved range of motion in the Veteran’s knees, the Veteran required regular use of a cane, and the examiner noted that, due to his knees, the Veteran was prevented from engaging in physical employment. A July 2016 entry in the Veteran’s VA medical center (VAMC) records reveal that he reported constant, chronic knee pain. A September 2016 VA examination noted that ROM testing could not be performed due to pain and weakness. The Veteran’s knees exhibited reduced muscle strength of 4/5, and the Veteran required constant use of a scooter. The examiner noted that the Veteran could not engage in activity that requires repetitive squatting, kneeling, running, or crawling; standing is limited to five minutes. Based on this evidence, the Board does not find that the Veteran’s knees reflect an improvement in his ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 349. VA used the incorrect standard when it reduced the Veteran’s ratings. VA solely relied on the fact that the Veteran’s knee did not meet the respective criteria for his then-current ratings. That, however, is not the inquiry. VA was to assess whether the Veteran’s condition actually had improved under the ordinary conditions of life and work. The evidence available to the RO at the time of the reduction, and shortly thereafter, confirm that such improvement indeed did not occur. At the time VA decided to reduce the Veteran’s rating it had before it the SSA decision, which found the Veteran partly unemployable due to his left knee, and the December 2015 VA examination, which stated that the Veteran’s knees prevent him from engaging in physical employment. Surely, despite the fact that the latter indicated improvement in ROM, the Veteran’s knees overall did not improve so as to constitute improvement under the ordinary conditions of life and work. The Veteran’s knees prevented him from engaging in employment. If there still is doubt whether the evidence available to the RO at the time of reduction showed improvement in the Veteran’s condition, then the Board is satisfied that post-reduction evidence shortly thereafter elucidates the Board’s finding, and it is permitted to evaluate such evidence. See Dofflemyer, 2 Vet. App. at 281–82. The July 2016 VAMC entry notes that the Veteran continues to complain of constant, chronic pain, and the September 2016 VA examination reveals that the Veteran requires constant use of a scooter. Pain and weakness in the Veteran’s knees are so bad, that range of motion testing could not be performed; the examiner further indicated the strict limitations the Veteran would encounter in the workforce, noting only the ability to engage in sedentary employment. This evidence comes only four months after VA reduces the Veteran’s ratings; it is not so far removed from the reduction so as to permit a period of worsening between the decision and the Veteran’s then-current state. Thus, the Board finds that VA erred when it reduced the Veteran’s left knee disability based on range of motion and his right knee disability, as there was no evidence to show that the Veteran’s disabilities improved under the ordinary conditions of life and work. The former will be restored to a 30 percent rating, and the latter will be restored to a 20 percent rating. See Faust, 13 Vet. App. at 349; Dofflemyer, 2 Vet. App. at 281–82. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Prior to June 5, 2020, entitlement to a disability rating in excess of 10 percent for service-connected left knee disability is denied. The Veteran originally was awarded service connection for his left knee disability in a March 1985 rating decision; he was granted a 10 percent disability rating (under DC 5257) effective October 31, 1984. In a February 2008 decision, the Veteran was awarded a temporary total rating beginning July 16, 2007; the 10 percent rating was reinstated beginning September 1, 2007. What follows next is a procedural convolution involving untimely filings and VA acquiescence thereof. In July 2008, the Veteran requested an increase for his knee, asking for a new examination. An October 2008 rating decision denied the increase. A January 2009 letter from VA confirmed receipt of the Veteran’s notice of disagreement (NOD) with the October 2008 decision. VA prepared the necessary statement of the case (SOC) in January 2010. The Veteran never perfected his appeal with a VA Form 9 substantive appeal; however, in September 2010, VA increased the Veteran’s left knee disability rating to 20 percent. VA again issued in November 2011 a SOC, reflecting the issue on appeal as entitlement to a rating in excess of 20 percent. The Veteran filed in February 2012, albeit untimely, see 38 C.F.R. § 19.52(b)(1), a VA Form 9. VA made no indication that it was rejecting the Veteran’s substantive appeal and instead afforded him a new examination that same month. In a March 2012 decision, VA increased the Veteran’s rating from 20 to 30 percent. In a February 2013 decision, VA noted that it committed clear and unmistakable error (CUE) and assigned him a separate 30 percent rating for the limitation of motion in his left knee (the rating discussed in the reduction section above); the Veteran’s initial left knee disability, established in the March 1985 was continued at the original 10 percent level. In March 2013, VA prepared a supplemental SOC (SSOC) containing both left knee disabilities. Nothing further was done on this claim until the January 2016 rating decision, which originally proposed the Veteran’s knee reductions and continued the Veteran’s 10 percent rating for his other left knee disability, noting that, as a rating in effect for more than twenty years, it cannot be reduced except upon a showing of fraud. The decision continued to note that an increased rating was not warranted unless the Veteran’s condition manifested moderate subluxation or lateral instability. At the outset, the Board finds that this claim has remained pending since the Veteran’s July 2008 request for an increase. While VA could have closed the Veteran’s appeal without notice to him for failure to respond timely to the November 2011 SOC, the record reflects that it did not do so. See 38 C.F.R. § 19.32. The United States Court of Appeals for Veterans Claims (CVAC) has held that VA may waive non-jurisdictional elements of an appeal to the Board, such as the timely filing of a VA Form 9. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Veteran’s February 2012 VA form 9 comes roughly ninety days after the November SOC—well outside the time allotted to perfect his appeal. See 38 C.F.R. § 19.52(b)(1). While VA could have elected to close out the appeal without notifying the Veteran, it chose—three days after it received the late VA Form 9—to provide the Veteran examinations for his knee. From a practical standpoint, these examinations would have been scheduled much earlier than the date the Veteran submitted the Form 9, indicating that VA intended to waive the non-jurisdictional requirement of the Form 9 and continue with development. On the other hand, even if the examinations were scheduled and afforded in the three days after receipt of the Form 9, that also signals that VA intended to waive the untimely filing and accept his substantive appeal Either way the Board views it, the fact that VA conducted additional development after the allotted time to file a substantive appeal, awarded the Veteran a higher rating (March 2012 decision) and issued a SSOC (March 2013), VA waived the non-jurisdictional requirement for filing a substantive appeal, and the Board finds that the Veteran’s July 2008 claim has remained pending until this day. See Percy, 23 Vet. App. at 46; 38 C.F.R. §§ 19.32, 19.52(b)(1). Under DC 5257, severe, moderate, or slight recurrent subluxation or lateral instability warrants either a 30, 20, or 10 percent disability rating, respectively. The Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,462, 76,469 (Nov. 30, 2020). DC 5257 has undergone significant changes. See id. at 76,463. For recurrent subluxation or instability, a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating requires either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) a unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating requires 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. For patellar instability, a 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for either a brace, cane, or walker. A 10 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to DC 5257 states that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). A September 2008 VAMC entry notes that the Veteran’s left knee disability was causing pain and instability with altered gait. The instability causes the Veteran secondary back pain. A June 2010 VA examination noted that the Veteran’s diagnosis was “internal derangement left knee, status post arthroscopic surgery with moderate instability, arthroscopy scars left knee.” The report, however, contradictorily also notes that the Veteran does not experience instability when the examiner did not check off that it was a noted symptom. A February 2012 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. Joint stability tests were performed but showed no abnormalities; there also was no recurrent patellar subluxation. The examiner noted constant use of a walker. Private treatment records from March 2015 show that, after an endograft AAA and right common iliac artery aneurism repair in February 2014, the Veteran had no trouble ambulating. Entries from December 2015, however, showed difficulty walking due to a pinched nerve. A December 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. There was no history of recurrent subluxation, recurrent effusion, or lateral instability. The examiner noted regular use of a cane. A September 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. There was no history of recurrent subluxation or recurrent effusion. Instability was indicated, but tests could not be performed due to pain in the Veteran’s knee. The examiner noted constant use of a scooter. A December 2017 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. There was no history of recurrent subluxation, recurrent effusion, or lateral instability. The examiner noted constant use of a walker and regular use of a scooter. There is conflicting evidence throughout the claims file about whether the Veteran experiences instability in his left knee. VAMC entries support his contentions of instability, but all the VA examinations of record that reported testing for instability noted that the Veteran did not exhibit any. It is true that “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” English v. Wilkie, 30 Vet. App. 347, 352 (2018). Nevertheless, the Board is “free to discount such lay evidence on a case-by-case basis and to weigh that evidence as it sees fit in its role as fact finder.” Id. at 353. The CAVC has stated, on at least two prior occasions, that, where the applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand in order to satisfy its obligation to provide adequate reasons or bases. Johnson v. Wilkie, 30 Vet. App. 245, 254–55 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 219–20 (2018). While the Board finds credible the Veteran in his assertions that he has, at some times, experienced instability of the left knee, the sheer fact that multiple VA examinations have confirmed the absence of instability, upon medical testing and examination, lead the Board to conclude that such instability does not rise to the level of moderate as contemplated by the rating criteria. While the severity terms in DC 5257 are undefined, there is no evidence in the claims file to suggest how often the Veteran experiences instability or how severe such instability is. Wherever the lines may be drawn, the Board finds that the Veteran’s periodic complaints of left knee instability cannot rise to anything higher than mild. In the absence of any evidence discussing the overall severity and frequency of the instability, the Board finds that, prior to February 7, 2021, the minimum rating for the Veteran’s left knee instability is appropriate. See 38 C.F.R. § 4.71a, DC 5257. While there is one, brief mention of “moderate” instability in the June 2010 VA examination report, the Board finds that simply using the word “moderate” is not enough to find that the Veteran experiences moderate symptoms. The Board finds the other evidence discussed above more probative on this matter. 2. Prior to June 5, 2020, entitlement to a disability rating in excess of 20 percent for service-connected low back disability is denied. DCs 5235 through 5242 pertain to various disease and injuries of the spine. Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is rated 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 under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Under 38 C.F.R. § 4.71a, DCs 5235–5242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating pertains only to the cervical spine so it herein will not be discussed. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). Under DC 5243, incapacitating episodes of IVDS having a total duration of at least six weeks during the past twelve months warrants a 60 percent rating. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months yields a 40 percent rating. Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months warrants a 20 percent rating. Incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months is rated as 10 percent disabling. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Notes (1) and (2). The rating criteria for the spine did not undergo any substantive changes with the most recent update. Rather, the rating schedule merely reflects updated DCs. DC 5242 now is assigned for degenerative arthritis and degenerative disc disease other than IVDS. DC 5243—IVDS—now will be assigned only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be assigned for all other disc diagnoses. DC 5244 is created for complete, traumatic paralysis; if it does not cause loss of use of both hands or feet, then it is incomplete paralysis, and the residuals thereof should be rated under the appropriate DCs for the peripheral nerves. Paraplegia is to be rated under DC 5110. 85 Fed. Reg. at 76,469. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran’s symptoms are most prevalent (“flare-ups”) due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204–07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. As an initial disability rating, this claim stems back to the date of the application for service connection that ultimately was granted. Here, the Veteran filed a request to reopen his previously denied back claim in 2008. That claim eventually went to the Board, which, in a March 2014 decision, determined that reopening was warranted but remanded the case on the merits for an examination. In a June 2014 rating decision, VA awarded the Veteran service connection with an evaluation of 20 percent effective December 22, 2008. The Veteran timely appealed. Private treatment records from June and December 2009 show that the Veteran had a history of chronic low back pain, which sometimes radiated into the Veteran’s chest. The July 2011 SSA decision noted that the Veteran was unemployable partly due to his back. An April 2014 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicated that Veteran suffers from degenerative arthritis. The Veteran reported flare-ups described as severe pain and limited range of motion. Initial range of motion was recorded as follows: forward flexion: 0–50 degrees; extension: 0–0 degrees; bilateral lateral flexion: 0–20 degrees; bilateral lateral rotation: 0–20 degrees. Pain was noted for all ranges of motion. Repetitive use testing was performed and confirmed additional loss of range of motion as follows: forward flexion: 0–40 degrees; extension: 0–0 degrees; bilateral lateral flexion: 0–15 degrees; bilateral lateral rotation: 0–15 degrees. Contributing factors to this additional loss of range of motion were less movement than normal, weakened movement, excess fatiguability, pain on movement, and lack of endurance. There was evidence of guarding of the thoracolumbar spine, which did result in abnormal spinal contour. Muscle strength for all joints measured was 4/5. There was no muscle atrophy or ankylosis; radiculopathy was noted but will be discussed in the section below. The examiner noted that the Veteran did have IVDS but that he did not have any incapacitating episodes within the last twelve months. The Veteran occasionally used a wheelchair and brace but regularly used a cane and walker. With respect to occupational impact, the examiner noted that the Veteran was unable ot stand straight or walk without devices. In July 2015, the Veteran submitted a Lumbar Spine Impairment Questionnaire (LSIQ) completed by N.M. The LSIQ indicates that range of motion was not tested but that the Veteran has pain with prolonged ambulation and bending. In an eight-hour workday, the Veteran would be able to sit for four hours and stand/walk for two. It was recommended that the Veteran not sit continuously in a work setting. A December 2017 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicated that Veteran suffers from degenerative arthritis. The Veteran did not report flare-ups; however, he described functional loss as an inability to stand or walk for any length of time due to pain, as well as an inability to stand up straight or bend over without falling. Initial range of motion was recorded as follows: forward flexion: 0–85 degrees; extension: 0–0 degrees; bilateral lateral flexion: 0–20 degrees; bilateral lateral rotation: 0–10 degrees. Pain was noted for all ranges of motion. There was pain on weight bearing and no evidence of localized tenderness or pain on palpation. Repetitive use testing was not observed, nor was the Veteran examined after repeated use over time. Pain, fatigue, weakness, lack of endurance, and incoordination all limited functional ability. There was evidence of guarding or muscle spasms; muscle strength for all joints were normal, and there was no muscle atrophy or ankylosis. Radiculopathy was noted but will be discussed in the section below. IVDS was not indicated on this report. The Veteran regularly used a walker and motorized scooter. With respect to occupational impairment, the examiner noted that the Veteran was unable stand or walk for any length of time, bend forward without losing his balance, and carry any significant weight while ambulating. Throughout the claims file are various VAMC records that document the continued care and treatment for the Veteran, but they do not discuss any of the pertinent rating criteria for the Veteran’s back disability. Evaluating the evidence of record, the Board finds that, prior to June 5, 2020, a rating in excess of 20 percent is not warranted. Neither VA examination nor the LSIQ disclose that the Veteran experiences limitation of flexion to 30 degrees or less. At worst, the evidence shows that the Veteran’s flexion is limited to 40 degrees. The range of motion measurements taken throughout the examinations also consider the Veteran’s painful motion. Thus, the Board is satisfied that the ranges of motion reported consider the necessary factors contemplated by the regulations. See DeLuca, 8 Vet. App. at 204–07; 38 C.F.R. §§ 4.40, 4.45, 4.59. Furthermore, there is no evidence of ankylosis, either favorable or unfavorable. Thus, the Board finds that, for this time period, a disability rating in excess of 20 percent is not warranted, and the Veteran’s appeal on this issue is denied. See 38 C.F.R. § 4.71a, DCs 5235–5243. 3. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right and left lower extremity, prior to November 30, 2017, is denied, and 20 percent thereafter is granted. The Veteran was awarded service connection for radiculopathy of the bilateral lower extremities in the June 2014 rating decision that awarded service connection for the Veteran’s back. Each leg received a disability rating of 10 percent and an effective date of December 22, 2008. For reasons unknown, when VA mistakenly awarded the Veteran a duplicative rating for his lower back (dismissed above) in a November 2014 rating decision, it also “awarded” service connection for radiculopathy of the bilateral lower extremities effective April 22, 2014. That improper effective date continues to remain. Thus, in the remand portion, the Board will instruct VA to correct its mistake so that the Veteran’s disability picture accurately reflects the proper effective dates for his radiculopathy. Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, cranial or peripheral, 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. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. The opening paragraph to the table for diseases of the peripheral nerves states that the term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The United States Court of Appeals for the Federal Circuit has held that the M21 does not “carry the force of law.” DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (2017). It is “an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.” Id. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)). The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board “is not bound by Department manuals, circulars, or similar administrative issues.” 38 C.F.R. § 20.105. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), however, the CAVC held that the Board is required to discuss “any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision.” Section III.iv.4.N.4.c. of the M21 provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia. That table is as follows: Degree of Incomplete Paralysis Description Mild • As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. • In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. • A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate • Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). • Symptoms will likely be described by the claimants and medically graded as significantly disabling. • In such cases a larger area in the nerve distribution may be affected by sensory symptoms. • Other sign/symptom combinations that may fall into the moderate category include • 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. • Moderate is also the maximum evaluation that can be assigned for • neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or • neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe • The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. • This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. • Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. • Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe • 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. • For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. • 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. • Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). There is scant-to-no guidance on how to define the severity terms for the peripheral nerves. Where the Board otherwise is required to define these terms when adjudicating the Veteran’s appeal, see Overton, 30 Vet. App. at 264, it likewise finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive. The April 2014 VA back examination noted above also included findings of radiculopathy. The examiner noted bilateral and mild intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength for all joints was 4/5, but there was no muscle atrophy. Reflexes and sensation all were normal. Overall, the examiner described the Veteran’s radiculopathy as mild. While the LSIQ indicated that the Veteran does suffer from radiculopathy, it failed to indicate the severity and simply notes “per MRI findings.” The November 2017 VA back examination noted above also included findings of radiculopathy. The examiner noted bilateral and mild constant pain, paresthesias and/or dysesthesias, and numbness. Muscle strength for all joints was normal, and there was no muscle atrophy. Reflex testing showed bilateral hypoactive knees and ankles. Sensory examination revealed a decrease in the lower leg/ankle and in the foot/toes, bilaterally. Overall, the examiner described the Veteran’s radiculopathy as mild. The other evidence of record, to include private treatment records, VAMC records, and SSA records, document the Veteran’s pain and continued treatment for his radiculopathy. Prior to November 30, 2017, the Board does not find that the record supports an award of a disability rating in excess of 10 percent; beginning that date, however, a 20 percent rating is warranted. Prior to November 30, 2017, there is no indication in the record that the Veteran’s radiculopathy was anything more than mild. As previously discussed, the severity terms in DC 8520 are not defined; however, the M21 lends substantial guidance. Looking to the table above, a moderate rating is the maximum evaluation for sensory-only impairment. See 38 C.F.R. § 4.124a. The April 2014 VA examination revealed mild sensory-only symptoms, no impairment as to sensation or reflexes, and involvement of nerves L4/L5/S1/S2/S3. The pain noted in the Veteran’s bilateral lower extremities at that time was “intermittent.” There is no other evidence to suggest that, prior to November 30, 2017, the Veteran’s condition was any worse than indicated by the April 2014 examiner. Thus, the Board finds that, for this time periods, the Veteran’s bilateral radiculopathy is mild, and his appeal on this issue is denied. See 38 C.F.R. § 4.124a, DC 8520; M21 at III.iv.4.N.4.c. Beginning November 30, 2017, entitlement to a 20 percent rating is warranted. The VA examination on that date indicates that the Veteran’s pain has increased from intermittent to “constant.” Sensation in the Veteran’s knees, ankles, feet, and toes were affected, and the Veteran had hypoactive knees and ankles. Comparing these two examinations, the Veteran’s condition worsened. Where the Veteran’s pain once was intermittent, it then was noted as constant. The loss sensation and hypoactive joints further leads the Board to find that the Veteran’s disability picture for his bilateral radiculopathy more suitably fits the criteria for a 20 percent disability rating for this time period. See 38 C.F.R. § 4.124a, DC 8520; M21 at III.iv.4.N.4.c. Prior to June 5, 2020, however, there is no indication that the Veteran’s bilateral radiculopathy rises to the level of moderately severe. The M21 indicates that the moderately severe level contemplates motor and reflex impairment at a high level of limitation or disability, and atrophy may be present. The Board does not find that, for this time period, the evidence discloses such a disability picture. The +1 hypoactive reflexes for the Veteran’s knees and ankles do not meet these criteria, and the Veteran never has had a diagnosis of muscle atrophy. Therefore, the Board does not find that that the signs for an evaluation of moderately severe, or higher, are present, and will deny an increase for this time period. See 38 C.F.R. § 4.124a, DC 8520; M21 at III.iv.4.N.4.c. 4. Prior to June 5, 2020, entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. The Veteran originally was awarded service connection for right ear hearing loss in a July 2012 rating decision; he was assigned a noncompensable rating effective November 17, 2011. In July 2017, the Veteran filed for an increase. A December 2017 rating decision awarded the Veteran service connection for the left ear and rated it together with his right; the noncompensable rating was continued. The Veteran timely appealed in February 2018. The assignment of disability ratings for hearing impairment are to be derived by mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In cases in which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the pure tone threshold average (horizontal axis) and the percentage of speech discrimination (vertical axis). The Roman numeral designation is located at the point where the pure tone threshold average and the percentage of speech discrimination intersect. 38 C.F.R. § 4.85(b). Table VIA, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). “Puretone threshold average,” as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations for Hearing Impairment (Diagnostic Code 6100),” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing of the two ears, and the vertical column represents the ear having the better hearing of the two. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment occur when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. When this occurs, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. With respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). A September 2017 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. That examination produced the following results: Hertz (HZ) 1000 2000 3000 4000 Average Hz Right Ear 55 60 65 60 60 Left Ear 25 30 50 45 38 The Veteran’s right ear received a speech discrimination score of 84 percent, and his left ear received a score of 94 percent. The Veteran described his functional loss as difficulty localizing sound and misunderstanding or missing parts of conversations. With an average pure tone threshold of 60 and a speech discrimination score of 84 percent, the Veteran’s right ear manifests Level III impairment. With an average pure tone threshold of 38 and a speech discrimination score of 94 percent, the Veteran’s left ear manifests Level I impairment. See 38 C.F.R. § 4.85(b), Table VI. Thus, with the Veteran’s better ear (left) manifesting Level I hearing impairment, and with the Veteran’s worse ear (right) manifesting Level III hearing impairment, his bilateral hearing loss meets the criteria for a noncompensable rating only. See 38 C.F.R. § 4.85(e), DC 6100, Table VII. Because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more in the Veteran’s right ear, he exhibits exceptional hearing loss. See 38 C.F.R. § 4.86. Thus, the Veteran’s right ear may be evaluated under Table VI or VIA, whichever yields a more favorable result. Evaluating the Veteran’s right ear under Table VIA, his right ear manifests level IV hearing impairment. Reevaluating the Veteran’s bilateral hearing impairment under Table VII, shows that he still is entitled to only a noncompensable rating. See 38 C.F.R. §§ 4.85, 4.86. This examination is the only one of record for this time period, and, as the law makes clear, an increased rating for hearing loss is based on a mechanical application of the audiological testing data. Plugging the results of the Veteran’s examination into the pertinent rating tables does not show that he is entitled to a compensable rating. Thus, his appeal on this issue is denied. See 38 C.F.R. §§ 4.85, 4.86, DC 6100. REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a VLJ or panel of VLJs shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 5. Beginning June 5, 2020, entitlement to a disability rating in excess of 10 percent for service-connected left knee disability is remanded. At his hearing, the Veteran alleged that his knee has worsened since his last VA examination in December 2017. Tr. at 9. Where the record does not adequately reflect the current state of a veteran’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Because VA has amended its rating criteria for DC 5257 (noted above) the Board finds that an updated examination is warranted so that it properly may assess the Veteran both under the new criteria and to determine if his condition has worsened. As discussed, much of the criteria for increased ratings hinge on whether assistive devices are prescribed by a medical provider. While the record reflects that Veteran uses such devices, it does not disclose whether such devices are prescribed. Thus, remand is required. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.”); 38 C.F.R. § 20.904(a). 6. Beginning June 5, 2020, entitlement to (a) an initial disability rating in excess of 20 percent for service-connected low back disability, (b) initial 20 percent disability ratings for radiculopathy of each the right and left lower extremity, and (c) a compensable disability rating for bilateral hearing loss are remanded. As noted, the Veteran testified at his hearing that these conditions all have worsened since his last VA examinations. Tr. at 7, 8. Like with the left knee, the Board finds that an updated examination is necessary to rate properly the Veteran’s conditions. See Green, 1 Vet. App. at 124; 38 C.F.R. § 20.904(a). In specific regard to the radiculopathy of each the right and left lower extremity, it is reiterated that the June 2014 rating decision granted service connection for radiculopathy assigning a 10 percent disability rating for each leg effective December 22, 2008. For reasons unknown, when VA mistakenly awarded the Veteran a duplicative rating for his lower back (dismissed above) in a November 2014 rating decision, and it also “awarded” service connection for radiculopathy of the bilateral lower extremities effective April 22, 2014. That improper effective date continues to remain. Thus, below the Board instructs VA to correct this error so that the Veteran’s disability picture accurately reflects the proper effective dates for his radiculopathy. 7. Entitlement to TDIU prior to April 7, 2015, and beginning August 1, 2016. is remanded. The Board has awarded the Veteran considerable benefits, which undoubtedly will change the overall makeup of his disability picture. Furthermore, it is undetermined what the Veteran’s disability ratings will be beginning June 5, 2020. Because the AOJ needs to assign initial ratings, implement restoration of old ratings, and adjudicate partial remands, this claim inextricably is intertwined, requiring remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation); 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Correct the effective dates for the Veteran’s radiculopathy of the bilateral lower extremities to December 22, 2008. 2. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 3. Afford the Veteran the opportunity to attend examinations to assess the severity of his left knee, bilateral hearing loss, low back, and radiculopathy of the bilateral lower extremities. 4. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.