Citation Nr: 21027688 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-36 502 DATE: May 6, 2021 ORDER Entitlement to an initial rating greater than 20 percent for lumbar spine strain, lumbar spine degenerative joint disease, and retrolisthesis (hereinafter lumbar spine disability) is denied. A separate 20 percent rating for radiculopathy, sciatic nerve, the right lower extremity is granted beginning December 17, 2020. A separate 20 percent rating for radiculopathy, sciatic nerve, left lower extremity is granted beginning December 17, 2020. A separate 20 percent rating for radiculopathy, femoral nerve, the right lower extremity is granted beginning December 17, 2020. A separate 20 percent rating for radiculopathy, femoral nerve, left lower extremity is granted beginning December 17, 2020. Entitlement to an initial 20 percent rating for left knee strain with ligament tear (hereinafter left knee instability disability) is granted. Entitlement to an initial rating greater than 10 percent for posterior cruciate ligament tear with ganglion cyst, left knee (previously evaluated as left knee strain with ligament tear) is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's thoracolumbar spine disability did not manifest in forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. Beginning December 17, 2020, the Veteran's radiculopathy, sciatic nerve, right lower extremity manifested as moderate incomplete paralysis. 3. Beginning December 17, 2020, the Veteran's radiculopathy, sciatic nerve, left lower extremity manifested as moderate incomplete paralysis. 4. Beginning December 17, 2020, the Veteran's radiculopathy, femoral nerve, right lower extremity manifested as moderate incomplete paralysis. 5. Beginning December 17, 2020, the Veteran's radiculopathy, femoral nerve, right lower extremity manifested as moderate incomplete paralysis. 6. During the entire appeal period, the Veteran's left knee instability did not manifest in severe instability or severe recurrent subluxation. 7. During the entire appeal period, the Veteran's posterior cruciate ligament tear with ganglion cyst, the left knee did not manifest in limitation of flexion to 30 degrees or limitation of extension to 10 and/or 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 20 percent for service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). 2. Beginning December 17, 2020, the criteria for a separate disability rating of 20 percent for radiculopathy, sciatic nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520. 3. Beginning December 17, 2020, the criteria for a separate disability rating of 20 percent for radiculopathy, sciatic nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520. 4. Beginning December 17, 2020, the criteria for a separate disability rating of 20 percent for radiculopathy, femoral nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8526. 5. Beginning December 17, 2020, the criteria for a separate disability rating of 20 percent for radiculopathy, femoral nerve, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8526. 6. The criteria for an initial disability rating of 20 percent for service-connected left knee instability have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.71a, Diagnostic Code 5257. 7. The criteria for an initial disability rating of 20 percent for service-connected left knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to November 2012. These matters come before the Board of Veterans Appeals (Board) from a May 2013 rating decision of the VA Regional Office (RO). A rating decision of December 2020 granted service connection for radiculopathy of the bilateral sciatic and femoral nerves, each at 10 percent disabling, effective December 17, 2020. A rating decision of January 2021 increased the 10 percent rating to 20 percent for his lumbar spine disability, effective November 08, 2012. As a claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, the claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The back and knee issues were previously before the Board in April 2018 and October 2020 and were remanded. In April 2018, the Board found the VA examinations of February 2013 and December 2014, for both the left knee and the lumbar spine disabilities, inadequate. The most recent Board decision of October 2020 also found the knee and back examinations of December 2018 inadequate. Upon remand, the Board mandated the RO to request that the Veteran complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms for his left knee and lumbar spine disabilities. Additionally, the RO was to schedule the Veteran for a VA examination to determine the current severity in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO was requested to also the VA examiner provide a retrospective opinion to supplement the December 2014 and 2018 VA examinations which estimated the amount in degrees of range of motion (ROM) lost due to pain in both weight-bearing and non-weight-bearing positions, both active and passive motion, and ROM due to flare-ups. In October 2020 correspondence, the RO provided the Veteran with release forms for private medical records. During a Report of General Information dated November 2020, the Veteran requested an additional 30 days to submit evidence for his remanded appeal. At the expiration of the 30 days, the Veteran had not provided the requested release or any outstanding private medical documents. After the 30 days had passed, the Veteran still had not provided the release forms or any outstanding private medical records. In December 2020, the Veteran was afforded a VA examination for his back and left knee. The examination complied with current VA regulations, including the criteria of Sharp and Correia. In the supplemental opinion of January 2021, the examiner concluded that the December 2020 examination findings were the best representation of the Veteran's current ROM of the back and left knee, and the examination should also be applied to the February 2013 VA, December 2014, and December 2018 examination findings. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also to be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (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, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Veteran contends that he is entitled to a higher rating is warranted for his back disability. The Veteran's lumbar spine disability is rated under Diagnostic Code 5242, which allows for a rating under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242, a 20 percent evaluation is warranted the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § § 4.71a. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Under the rating schedule, forward to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each is considered a normal range of motion of the thoracolumbar spine. Id. at Note 2 and Plate V. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to and from the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, for purposes of assigning evaluations for IVDS under Diagnostic Code 5243, an "incapacitating episode" was 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. 38 C.F.R. §§ 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Under the new changes implemented on February 07, 2021, Intervertebral Disc Syndrome, under Diagnostic Code 5243, is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses and rates degenerative arthritis, degenerative disc disease other than Intervertebral Disc Syndrome. The rater is also referred to as Diagnostic Code 5003 or 5010. As no clinician nor VA examiner during the period on appeal has noted that the Veteran has had an incapacitating episode, as defined by the older regulation, and/or disc herniation with compression and/or irritation of the adjacent nerve root, under the newer regulation, the Formula for Rating IVDS is not applicable. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). As indicated above, the Veteran was requested to provide authorization and release for all non-VA medical providers seen for signs or symptoms for his left knee and lumbar spine disabilities. As he has not provided said information, the only treatment records the VA treatment records addressed herein. In-service visit for depression screening dated in July 2012 notes the Veteran's backache and chronic lower back pain from degenerative joint disease (DJD). His back disability was noted as stable and well-controlled with exercise and absent medication. In December 2020, the Veteran was afforded a VA thoracolumbar spine conditions examination. He reported that his condition has worsened secondary to his ruptured disc, persistent pain, and radiculopathy of the bilateral lower extremities. The Veteran reported that his condition has worsened secondary to was ruptured disk, persistent pain, and radiculopathy of the bilateral lower extremities. The Veteran reported flare-ups, which resulted in 8/10 intermittent, sharp, dull, throbbing pain of the lumbar region of the spine. The condition worsened by repetitive reaching, prolonged sitting. Regarding the functional loss or functional impairment, the Veteran reported difficulty with prolonged standing, prolonged sitting, lifting greater than 30 pounds, walking, running, squatting, reaching, and kneeling. The Veteran reported flare-ups, including pain three times monthly, "which caused limited productivity at home and work." The examiner diagnosed degenerative arthritis of the spine and lumbosacral strain. He noted additional diagnoses pertaining to the thoracolumbar spine, including retrolisthesis, disc herniation, and radiculopathy of the bilateral lower extremities. Upon examination, the range of motion (ROM) was noted as abnormal or outside the normal range. The forward flexion was limited to 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, and left lateral rotation at 20 degrees. The abnormal ROM itself contributed to a functional loss with decreased ability to twist, bend over, squat, stretch, and kneel. Pain with the forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation was noted on examination and did not result in/caused a functional loss. Pain was not noted with weight-bearing. There was objective evidence of mild to moderate localized tenderness in the paravertebral, spinal musculature, lumbar region, consistent with the Veteran's lumbosacral strain. The examiner noted that the Veteran was able to perform repetitive use testing, absent additional loss of function of ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, fatigue, and weakness were noted to significantly limit the functional ability with repeated use over a period of time. In terms of ROM, the examiner noted that the forward flexion was limited to 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, and left lateral rotation at 20 degrees. The Veteran was not being examined during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain, fatigue, and weakness were noted to significantly limit the functional ability flare-ups. In terms of ROM, the examiner noted that the forward flexion was limited to 60 degrees, extension at 20 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, and left lateral rotation at 20 degrees. The Veteran did not have guarding of the thoracolumbar spine. He had muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. The examiner explained that there were palpable active trigger points throughout the lumbosacral paravertebral musculature. Additional factors contributing to disability included less movement than normal, instability of station, disturbance of locomotion, interference with sitting, interference with standing. The examiner explained that the Veteran had difficulty with prolonged standing, prolonged sitting, lifting greater than 30 pounds, walking, running, squatting, reaching, and kneeling. Muscle strength testing was noted as the active movement against some resistance, 4/5, for the bilateral hip flexion; the bilateral knee extension, ankle plantar flexion, ankle dorsiflexion, and great extension were noted as normal 5/5. The deep tendon reflexes (DTRs) were noted to be 1+, hypoactive for the bilateral knee and ankle. The sensation to light touch was normal for the bilateral upper anterior thigh, thigh/knee, and decreased for the bilateral lower leg/ankle and foot/toes. The bilateral straight leg rising tests were positive. The examiner noted that the Veteran has radicular symptoms as reflected by moderate intermittent pain and paresthesias and/or dysesthesias in the bilateral lower extremity. The radiculopathy involved the L2/L3/L4 nerve roots (femoral nerve) and the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides. The severity of the radiculopathy was deemed moderate on the right side and moderate on the left side. The examiner found that the Veteran did not have muscle atrophy or ankylosis. The examiner noted that the Veteran did not have IVDS. The Veteran's thoracolumbar spine disorder impacts his ability to work because the Veteran has difficulty with prolonged standing, prolonged sitting, lifting greater than 30 pounds, walking, running, squatting, reaching, and kneeling. Regarding the Correia standards, the examiner noted no evidence of pain when the back is used in non-weight bearing. Passive ROM of the back could not be performed or was not medically appropriate Based on the evidence presented above, a rating greater than 20 percent for the Veteran's lumbar spine disability is not warranted. The December 2020 VA examiner specifically found that he did not have ankylosis, and the medical and lay evidence of record shows that he can move his spine. Additionally, the evidence does not show that his forward flexion of the spine was more closely described as 30 degrees or less, including after repetitive motion over time or during a flare-up. As noted above, in January 2021, a VA examiner was able to provide a retrospective opinion. The examiner stated that the December 2020 examination findings are the "best representation" of the Veteran's range of motion and should be applied to the December 2018 and February 2013 findings. As the earlier examinations have all been deemed inadequate by the Board's prior remands, they will not be addressed or afforded probative weight. Even when considering the functional loss as outlined in 38 C.F.R. §§ 4.40 and 4.45, the Veteran's lumbar spine disability is not more closely approximated by the 40 percent criteria. Additionally, there is no probative medical or lay evidence supporting a finding that the Veteran has forward flexion of the thoracolumbar spine to 30 degrees or less or the functional equivalent of favorable ankylosis of the entire thoracolumbar spine. A 40 percent rating, therefore, is not warranted. Accordingly, the Board finds that the criteria for a higher disability rating are not met during the appeal period. There is also no evidentiary basis upon which to assign higher ratings than currently assigned or additional ratings. Since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. As the preponderance of the evidence is against an initial evaluation higher than 10 percent for a lower back disability, the claim must be denied. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Thus, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Regarding separate neurological manifestations, the Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Here, the medical and lay evidence of record does not show erectile dysfunction or bowel/bladder conditions associated with a lumbar spine disability. The Veteran's radiculopathy is addressed below. 2. A separate 20 percent rating for radiculopathy, sciatic nerve, right lower extremity is granted. 3. A separate 20 percent rating for radiculopathy, sciatic nerve, left lower extremity is granted. 4. A separate 20 percent rating for radiculopathy, femoral nerve, right lower extremity is granted. 5. A separate 20 percent rating for radiculopathy, femoral nerve, left lower extremity is granted. The Veteran is currently rated for radiculopathy, sciatic nerve, bilateral lower extremity, and radiculopathy, femoral nerve, bilateral lower extremity, each at 10 percent disabling, effective December 17, 2020, under Diagnostic Codes 8520 and 8526, respectively. Paralysis of the sciatic nerve is evaluated under the criteria outlined in 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, paralysis of the anterior crural nerve (femoral), a 10 percent evaluation is warranted for mild incomplete paralysis, a 20 percent evaluation is warranted for moderate incomplete paralysis, a 30 percent evaluation is warranted for severe incomplete paralysis, and a 40 percent evaluation if warranted for complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. Regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" 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 levels of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board notes that the back conditions examinations of February 2013 and December 2018 indicated normal bilateral muscle strength testing, 5/5, normal reflex examination at 2+, sensory examination, negative straight leg rising, and no radicular pain or any signs or symptoms due to radiculopathy. It was not until the December 2020 VA examination that radiculopathy was noted. During the said examination, the muscle strength testing was noted as active movement against some resistance, 4/5, for the bilateral hip flexion. The bilateral knee extension, ankle plantar flexion, ankle dorsiflexion, and great extension were normal, 5/5. The DTRs were noted to be 1+, hypoactive for the bilateral knee and ankle. The sensation to light touch was decreased for the bilateral lower leg/ankle and foot/toes but normal for the bilateral upper anterior thigh, thigh/knee. The bilateral straight leg rising tests were positive, and the examiner noted that the Veteran had radicular symptoms as reflected by moderate intermittent pain and paresthesias and/or dysesthesias in the bilateral lower extremity. The radiculopathy involved the L2/L3/L4 nerve roots (femoral nerve) and the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides. The severity of the radiculopathy was deemed moderate on the right side and moderate on the left side. Based on the evidence presented, the Board finds that the Veteran's radiculopathy of the bilateral lower extremity has been defined as moderate in severity during the appeal period. The evidence shows complaints of moderate intermittent pain, paresthesias and/or dysesthesias, and DTRs hypoactive but with normal muscle strength for the bilateral lower extremity. His sensory examinations for the bilateral lower leg/ankle and foot/toes were decreased. The severity of symptoms of radiculopathy of the bilateral lower extremity was described as moderate incomplete paralysis by the examiner. As the evidence shows that the Veteran's radiculopathy has been deemed moderate by the December 2020 VA examiner, a 20 percent is warranted for bilateral sciatic nerve and bilateral femoral nerve radiculopathy under Diagnostic Codes 8520 and 8526. The Veteran has not provided a lay description of his symptoms outside of what is documented in the medical record. A higher rating is not warranted for neither the lay nor clinical records support a finding of moderately severe (under Diagnostic Code 8520) or severe (under Diagnostic Code 8526) for the Veteran's radiculopathy in the lower extremity. A higher rating under Diagnostic Code 8520 or 8526 is not warranted. 6. Entitlement to an initial rating greater than 10 percent for posterior cruciate ligament tear with ganglion cyst, left knee is denied. 7. Entitlement to an initial 20 percent rating for left knee strain with ligament tear is granted. The Veteran contends that his left knee disabilities are warranted higher ratings. The Veteran's knee disabilities are currently rated under Diagnostic Codes 5257 and 5260 for left knee strain with ligament tear (5257) and posterior cruciate ligament tear with a ganglion cyst. Before February 07, 2021, under Diagnostic Code 5257, slight recurrent subluxation or lateral instability of the knee is rated 10 percent. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 is based on instability and subluxation, not the limitation of motion. As a result, the criteria outlined in DeLuca do not apply. DeLuca, 8 Vet. App. 202, 206 (1995). The words "slight/mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that the use of terminologies such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As previously noted, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). Under the amended regulations, Diagnostic Code 5257 now governs Recurrent subluxation or instability and Patellar instability of the knee. The new regulation provides that for: Recurrent subluxation or instability: A 10 percent is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent 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. Patellar instability: A 10 percent is warranted for 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. A 20 percent is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent is warranted for 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). There are two diagnostic codes for limitation of motion of the knee; they provide criteria for limitation of flexion and extension of the leg: Diagnostic Code 5260, which governs limitation of flexion of the leg; and Diagnostic Code 5261, which governs limitation of extension of the leg. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5261, the limitation of extension of the leg, a 10 percent evaluation is warranted when the extension of the leg is limited to 10 degrees. A 20 percent evaluation is warranted when the extension of the leg is limited to 15 degrees. A 30 percent is warranted when the extension of the leg is limited to 20 degrees. A 40 percent evaluation is warranted when the extension of the leg is limited to 30 degrees. A 50 percent evaluation is warranted when the extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a. The normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. During the period on appeal, the Veteran's in-service treatment records show a visit for depression screening dated in July 2012, wherein knee joint pain, with left knee chronic, secondary to PCL tear was noted. The examiner further noted that said knee pain was stable and controlled well with exercise, absent medication. The Veteran was afforded VA knee and lower leg conditions examinations in February 2013 and December 2014, where ROM testing was conducted. However, in October 2020 as the examinations were deemed inadequate for rating purposes because. The December 2020 examiner noted that the ROM testing conducted in December 2020 the best representation of the Veteran's current ROM and applicable to the December 2014 and 2018 VA examinations findings. In December 2020, the Veteran was afforded a VA knee and lower leg conditions examination. He reported jumping from a second-story building window into a trash dumpster injuring his left knee while in service. He was then diagnosed with a PCL tear and knee instability. Since then, he has had ongoing sequela. His current symptoms included daily flare-ups of pain x2, which resulted in 10/10, constant, sharp, and throbbing pain of the general knee, and positive sleep disturbance. The pain worsened with prolonged walking, negotiating stairs, and prolonged driving and is relieved with rest, Motrin, over the counter NSAIDs, and therapy. The flare-ups included daily pain that caused limited productivity at home and work. Regarding functional loss or functional impairment, the examiner noted that the Veteran had difficulties with prolonged standing, sitting, lifting greater than 30 pounds, walking, running, squatting, reaching, and kneeling. The examiner diagnosed the left knee posterior cruciate (strain) with ligament tear (instability) and ganglion cyst. The ROM testing revealed left knee forward flexion ended at 110 degrees, and the extension ended at 0 degrees. The ROM itself contributed to functional loss with decreased ability to squat, sit for prolonged periods, lift, negotiate stairs/steps. Pain was noted with weight-bearing. There was objective evidence of crepitus. There was also objective evidence of localized moderate tenderness or pain and palpation with the joint or associate tissue with the joint line, posterior knee, and consistent with knee instability. The Veteran was able to perform repetitive motion testing with three repetitions. The examiner noted no additional loss of function or ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, and fatigability significantly limited the functional ability with repeated use over a period of time. In terms of ROM, left knee forward flexion ended at 110 degrees, and extension ended at 0 degrees. The pain contributed to the functional loss or additional limitation of ROM. The Veteran was not being examined during a flare-up. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with flare-ups. Pain, weakness, and fatigability significantly limited the functional ability with flare-ups. In terms of ROM, left knee forward flexion ended at 110 degrees, and extension ended at 0 degrees. Additional contributing factors of the left knee disability included less movement than normal due to ankylosis, adhesions, swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The examiner also noted the decreased ability to squat, sit for prolonged periods, lift, and negotiate stairs/steps. The muscle strength testing of the left knee revealed flexion and extension of 4/5, active movement against some resistance. There was a reduction in muscle strength, which was entirely due to the diagnosed disabilities. Neither muscle atrophy nor ankylosis was noted. The joint stability testing of the left knee revealed no history of lateral instability. There was, however, a history of moderate recurrent subluxation. A history of recurrent effusion was also noted, as evidenced by the Veteran's edema with prolonged use of the left knee. Joint instability testing of the left knee was performed and revealed joint instability with the posterior at 2+, medial, and lateral stability at 1+. The anterior instability, posterior stability of the left knee was normal. The examiner noted that the Veteran did not have "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscectomy. The examiner noted no evidence of acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing of the left knee. The physician noted that the Veteran constantly used a cane as an assistive device for normal mode of locomotion for his left knee instability. The physician noted that imaging studies of the left knee had been performed, but neither degenerative nor traumatic arthritis was documented. The physician noted that the Veteran's knee disabilities impacted his ability to work because of the difficulty with prolonged standing, prolonged sitting, lifting greater than 30 pounds, walking, running, squatting, reaching, and kneeling. The examiner remarked that regarding the Correia factors, there was no objective evidence of pain on the non-weight bearing when the right knee was used in non-weight-bearing. The passive ROM of the right knee was the same as the active ROM. Based on the above, the Board finds that the newer regulation, effective February 07, 2021, is not more favorable to the Veteran. Although the December 2020 VA examiner noted that the Veteran's knee disability was now a "posterior cruciate ligament tear," there is no indication of record that the Veteran's use of a cane as an assistive device for normal mode of locomotion for his left knee instability, was prescribed by a medical professional. Under the older regulation, the Board finds that an initial evaluation of 20 percent is warranted for the Veteran's left instability. Throughout the appeal period, the Veteran has had instability in the left knee. Specifically, the December 2020 VA examiner noted that the best representation of the Veteran's current ROM should also be applied to the December 2014 and 2018 VA examination findings. Also, the examiner noted the presence of crepitus, a history of moderate recurrent subluxation, recurrent effusion as evidenced with the Veteran's edema with prolonged use of the left knee, and the Veteran's constant use of a cane for left knee instability. Moreover, the examiner stated the correct diagnosis for this condition is now posterior cruciate ligament tear with ganglion cyst, left knee. Thus, an initial rating of 20 percent is warranted for moderate instability, effective December 03, 2014. A higher evaluation of 30 percent is not warranted, for there is no medical or lay evidence showing severe instability or severe recurrent subluxation. Therefore, a higher rating under Diagnostic Code 5257 is not for application, and the appeal must be denied. 38 C.F.R. § 4.71a. Regarding the Veteran's left posterior cruciate ligament tear with ganglion cyst, the Board finds that the evidence presented above, an initial evaluation greater than 10 percent is not warranted. While factors such as pain and weakness have been considered, they have not been shown to result in additional functional limitation consistent with the limitation of motion associated with the next higher rating of 20 percent under Diagnostic Codes 5260 or 5261, which requires the limitation of flexion to 30 degrees or limitation of extension to 15 degrees. Here, the criteria are not met or approximated. Based on the December 2020 VA examination findings, the Veteran's left knee disability warranted a noncompensable rating for when viewed strictly from the range of motion criteria under Diagnostic Code 5260 and 5261. At worst the Veteran's flexion was limited to 110 degrees and extension at 0 degrees, which the December 2020 examiner found to be the best representation of the Veteran's current ROM and applicable to the December 2014 and 2018 VA examination findings. Nonetheless, because the Veteran reported experiencing flare-ups with constant, sharp, and throbbing pain, which worsened with prolonged walking, negotiating stairs, and prolonged driving, he was entitled to the minimum compensable evaluation, a 10 percent, based on painful motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. The are no treatment records of evidence showing a limitation of flexion to 30 degrees or limitation of extension limited to 10 and/or 15 degrees. There are no medical findings nor lay statements of evidence indicating the requisite limitation of motion necessary for a higher or separate rating. Therefore, a higher and/or separate rating was not warranted based on the limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board acknowledges the Veteran's statement in his October 2014 Form 9, Appeal to the Board, that his left knee flexion was between 10-20 degrees, his having permanent instability, and as such his left knee disabilities warrant a 40 percent rating. Also, his repetition in his April 2015 statement that his left knee is structurally damaged, with flexion between 10-20 degrees and a 40 percent is warranted. The Board finds the Veteran competent and credible in his reports of a painful left knee and instability, therefrom. Jandreau v. Nicholson, 492 F.3d 1372. His complaints were investigated by the December 2020 VA examiner, who used a goniometer to determine the flexion and extension of the left knee and found no pain with flexion nor extension at a degree that would warrant a compensable rating. Also, he found not severe instability. The Board has also considered other potentially applicable Diagnostic Codes for the Veteran's left knee disability and found none applicable. During this period, the Veteran was not diagnosed with ankylosis or nonunion or malunion of the tibia and fibula, dislocated cartilage with episodes of locking, removal of cartilage, and genu recurvatum. Therefore, a higher and/or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.