Citation Nr: 21028930 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-06 883 DATE: May 12, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for residuals, fracture of right tibia and fibula with degenerative changes of the right knee, is denied. Entitlement to an initial evaluation in excess of 20 percent for intervertebral disc syndrome (IVDS) (previously evaluated as degenerative changes of the lumbar spine), prior to March 25, 2020, and in excess of 40 percent thereafter, is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's residuals, fracture of right tibia and fibula with degenerative changes of the right knee have manifested by no more than malunion of the tibia and fibula with marked knee disability. 2. Prior to March 25, 2020, the Veteran's IVDS manifested as no more than forward flexion greater than 30 degrees but not greater than 60 degrees. 3. Since March 25, 2020, the Veteran's IVDS has manifested as no worse than forward flexion to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for residuals, fracture of right tibia and fibula with degenerative changes of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 2. The criteria for an increased rating in excess of 20 percent for IVDS lumbar spine prior to March 25, 2020 are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. 2. The criteria for an increased rating in excess of 40 percent for IVDS lumbar spine since March 25, 2020 are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1979 to August 1979 and in the United States Navy from August 1980 to September 1985 These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and May 2017 rating decisions by the Muskogee, Oklahoma Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a March 2019 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issues were previously before the Board in August 2019 at which time they were remanded for additional development. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March 2015 and in the December 2016 Fully Developed Claim Form submitted by the Veteran. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Right Knee The Veteran is seeking a rating in excess of 30 percent for his residuals, fracture of right tibia and fibula with degenerative changes of the right knee. His right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of tibia and fibula. There are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there is motion of the left knee, this Code is not applicable here. 38 C.F.R. § 4.71a. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Under the former criteria, a 10 percent evaluation is assigned for slight, recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Pursuant to the new criteria, Code 5257, recurrent subluxation or lateral instability, assigns a 10 percent evaluation 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 evaluation is assigned for either (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 evaluation is assigned 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (Effective February 7, 2021). Additionally, pursuant to the new criteria for Code 5257, a 10 percent evaluation is assigned for patellar instability when the condition is diagnosed and involves the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provided for a brace, cane or walker. A 20 percent evaluation is assigned for diagnosed patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provided for one of the following: a brace, cane, or walker. A 30 percent evaluation is assigned for a diagnosed patellofemoral instability 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) to Code 5257 for patellar instability, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) specifies that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (Effective February 7, 2021). Code 5258 assigns a 10 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking" pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. For limitation of motion, there are two potentially applicable Diagnostic Codes; the rating criteria for these codes were unaffected by the new regulations. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. Limitation to 5 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 10 degrees. Limitation to 15 degrees extension warrants a 20 percent evaluation. A 30 percent evaluation is assigned for limitation to 20 degrees of extension. A 40 percent evaluation is assigned for extension limited to 30 degrees. A 50 percent evaluation is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under the former criteria for Diagnostic Code 5262, tibia and fibula, impairment of, a 10 percent disability evaluation is assigned for malunion of with slight knee or ankle disability. A 20 percent disability evaluation is assigned for malunion with moderate knee or ankle disability. A 30 percent evaluation is assigned for malunion with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibular with loose motion, requiring brace. 38 C.F.R. § 4.71a, Code 5262 (2020). Pursuant to the new criteria for Diagnostic Code 5262, for medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is assigned for treatment for less than 12 consecutive months, one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of tibia and fibula is evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, of 5270 or 5271 for the ankle whichever results in the highest evaluation. Nonunion of tibia and fibula with loose motion, requiring brace is assigned a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (Effective February 7, 2021). For VA purposes, normal range of knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The words "slight," "moderate," and "severe" as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than apply a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although not 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. The Veteran underwent a VA knee examination in January 2015. The VA examiner noted the Veteran's diagnosis of right knee joint osteoarthritis and degenerative joint disease, right knee residuals of fracture right tibia/fibula. Subjective complaints included burning pain over medial aspect and anterior aspect of right knee, feeling of tightness in right knee after prolonged sitting, avoidance of steps, walking more than 40 yards or standing for any prolonged period of time necessitates rest, intermittent giving way of right knee. Flare-ups were described as causing increased pain and decreased mobility. Functional loss or functional impairment was described as decreased mobility of the right knee. Range of motion of the right knee was flexion from 5 to 90 degrees and extension from 90 to 5 degrees. Pain was noted on flexion and extension but did not cause functional loss. Pain on weight bearing and tenderness to palpation throughout entire knee joint was noted. The Veteran was not able to perform repetitive use testing. Pain and fatigue limit functional ability with repeated use over time and significantly limit functional ability with flare-ups. Additional contributing factors of disability include disturbance of locomotion, interference with standing and prolonged standing/walking increases pain. Muscle strength of right knee was 4 out of 5 on flexion and reduced on extension. No muscle atrophy or ankylosis was present. No history of recurrent subluxation or lateral instability was noted. Joint stability testing revealed no joint instability in the right knee. The VA examiner indicated that the Veteran did not have shin splints, fractures or any other tibial and/or fibular impairment. The Veteran had right knee arthroscopy in service for right knee meniscal tear. The Veteran did not use any assistive devices as a normal mode of locomotion. In May 2015 the Veteran underwent a VA contract knee and lower leg examination. The VA contract examiner noted the Veteran's diagnosis of fracture of right tibia and fibula with degenerative changes of the right knee with scar. Subjective complaints included pain in the right knee. Range of motion of the right knee was flexion from 0 to 115 degrees and extension from 115 to 0 degrees. Range of motion contributed to functional loss as Veteran has difficulty squatting and climbing. Pain was noted on flexion. Objective evidence of crepitus was present. Repetitive use testing did not result in additional loss of function or range of motion. Pain was noted to significantly limit functional ability with repeated use over a period of time. No additional contributing factors of disability were noted. Muscle strength test results were 5 out of 5 on extension and flexion. No muscle atrophy or ankylosis was present. Joint stability tests revealed no joint instability of the right knee. The VA contract examiner noted a leg length discrepancy, with the right leg measuring 33 cms and the left leg measuring 33.5 cms which is due to his right tibia/fibula fracture. The Veteran's history of right meniscal tear and surgery were noted. VA treatment records include reports from June 2015 right knee x-rays which revealed mild to moderate degenerative changes in the right knee. Treatment records reflect complaints of right knee pain. The Veteran underwent a VA contract knee and lower leg examination in March 2017. The VA contract examiner noted the Veteran's diagnosis of status post fracture of right tibia and fibula with degenerative changes of the knee. Subjective complaints included increased symptoms with pain. Flare-ups were reported as experiencing difficulty sleeping, standing, and weather changes causing pain. Functional loss or functional impairment was reported as experiencing difficulty walking for extended periods of time knee will become very painful and he must sit to rest. Range of motion of the right knee was flexion from 0 to 80 degrees and extension from 80 to 0 degrees. Range of motion contributed to functional loss in that the Veteran could not fully flex. Pain was observed on examination, on both flexion and extension, and caused functional loss. Pain was present on weight bearing. Objective evidence of localized tenderness or pain on palpation of the joint was present. No crepitus was present. Repetitive use testing resulted in an additional loss of range of motion as flexion was limited to 0 to 70 degrees and extension was limited to 70 to 0 degrees. Pain caused this functional loss. Pain and weakness significantly limited functional ability with repeated use over time and on flare-up; range of motion was limited to flexion from 0 to 60 degrees and extension from 60 to 0 degrees. No additional factors contributing to disability were noted. Muscle strength testing results were 2 out of 5 on flexion and extension. No muscle atrophy or ankylosis was noted. A history of moderate subluxation, moderate lateral instability, and effusion of the right knee was noted. Joint stability testing was performed and medial instability of 1+ was noted. No recurrent patellar dislocation, shin splints or stress fractures were noted. Frequent episodes of joint "locking," joint pain and joint effusion were noted. The Veteran used braces on both knees. The Veteran underwent a VA contract knee and lower leg examination in October 2018. The VA contract examiner noted the Veteran's residuals right leg broken tibia/fibula and right knee degenerative joint disease, torn meniscus, status post arthroscopic debridement. Subjective complaints include right knee popping and grinding, muscle atrophy and locking up of right knee. Flare-ups were reported as occurring due to walking, discomfort from right knee brace. No functional loss or impairment due to repeated use over time was reported. Range of motion of the right knee was flexion from 10 to 90 degrees and extension from 90 to 10 degrees. Pain was noted on examination on both flexion and extension. Objective evidence of pain with weight bearing and crepitus was present. There was no evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing which did not result in additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Additional factors contributing to disability included disturbance of locomotion, interference with standing and right knee joint pain. Muscle strength was 5 out of 5 on flexion and extension. No muscle atrophy or ankylosis was present. There was no reported history of recurrent subluxation, lateral instability, or recurrent effusion of the right knee. Joint instability test results were negative for joint instability of the right knee. The Veteran had no recurrent patellar dislocation, shin splints, stress fracture or any other tibial or fibular impairment. Symptoms relating to meniscus condition were noted as frequent episodes of joint "locking" and joint pain. The Veteran was noted to use bilateral knee braces to assist with ambulation. October 2018 x-rays of the right knee revealed moderate narrowing of both compartments, consistent with degenerative changes; chondrocalcinosis; old healed fracture proximal shaft of the fibula. X-rays of the right tibia/fibula showed old, healed fractures of tibia and fibula shafts. Objective evidence of pain on passive range of motion testing of the right knee; no evidence of pain on non-weight bearing testing of the right knee. At his March 2019 hearing, the Veteran testified that his tibia and fibula impairment functionally impacted his daily living. He testified that he experienced mobility issues and that his right leg was shorter than his left leg. The Veteran testified that he had problems with flexion and extension, he had fallen three times because of his knee giving out, experienced swelling, and experienced pain due to meniscal damage and pain due to motion damage. The Veteran underwent a VA contract knee and lower leg examination in September 2020. The VA contract examiner noted the Veteran's right knee meniscal tear, right knee osteoarthritis, right tibia and/or fibula fracture, degenerative arthritis, residuals fracture of right tibia and fibula with degenerative changes of the knee. Subjective complaints included constant pain on the inside right kneecap and underneath and pain on lower leg/shin which worsens when he walks or bears weight on his right leg. The Veteran reported flare-ups of the right knee when twisting or turning right knee too quickly, or on his leg for long period of time. Flare-ups occurred every 4 to 6 weeks and were described as an 8 out of 10 in intensity. Functional loss was described as an unsteady right knee, wearing right knee brace to support himself, inability to fully bend or extend right knee, and constant knee pain. Range of motion of the right knee was flexion from 20 to 100 degrees and extension from 100 to 20 degrees. Pain was noted on examination on rest and nonmovement. Objective evidence of sharp pain was noted in the right knee joint and lower leg and ankle, described as a 6 out of 10 in intensity. Objective evidence of pain with weight bearing and objective evidence of crepitus was present. The Veteran was able to perform repetitive use testing which did not result in additional loss of function. Pain and weakness were found to significantly limit functional ability with repeated use over a period of time and with flare-ups, resulting in flexion reduced to 25 to 90 degrees and extension from 90 to 25. There were no additional contributing factors of disability noted. Muscle strength testing revealed muscle strength of 2 out of 5 on flexion and 4 out of 5 on extension. No muscle atrophy or ankylosis was present. While no history of recurrent subluxation was noted, histories of moderate lateral instability and recurrent effusion were both noted. Joint stability testing revealed anterior instability 1+, medial instability 1+, and lateral instability 1+. The VA contract examiner noted the Veteran has not had any recurrent patellar dislocation, shin splints or any other tibial or fibular impairment. The VA contract examiner noted the Veteran's history of meniscal condition, including symptoms of meniscal tear, frequent episodes of joint "locking," and frequent episodes of joint pain. The VA contract examiner noted the Veteran's use of bilateral knee braces to assist with ambulation. There was objective evidence of pain on passive range of motion testing, and when the joint is used on non-weight bearing. Based on the findings of the September 2020 VA contract knee examination, the Veteran was awarded a separate 20 percent evaluation for right knee instability, effective September 18, 2020. The October 2018 VA examination revealed the Veteran's right knee extension was limited to 10 degrees, which met the criteria for a 10 percent evaluation pursuant to Code 5261. At the September 2020 VA contract examination, his right knee extension was limited to 20 degrees, which met the criteria for a 30 percent evaluation pursuant to the criteria for Code 5261. After a thorough review of the evidence of record, the Board finds that the 30 percent disability evaluation assigned for the Veteran's service-connected residuals fracture of right tibia and fibula with degenerative changes of the right knee contemplates the Veteran's symptoms of limitation of motion, swelling, pain, and joint "locking." These are the symptoms that have been consistently considered in assigning the 30 percent evaluation for this disability pursuant to the former rating criteria for Code 5262. The medical evidence of record does not establish that the Veteran has a nonunion of the tibia and fibula with loose motion which requires a brace. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors as described by the examiners and by the Veteran in competent and credible lay statements, and finds that the disability picture of the Veteran's right knee tibia/fibula malunion disability does not more nearly approximate the rating criteria for a rating in excess of 30 percent. Therefore, the currently assigned 30 percent disability rating contemplates the Veteran's functional limitations and compensates him for such. See DeLuca. The Board has considered whether a higher, 40 percent rating is warranted under the rating criteria for Code 5256 and 5261. See 38 C.F.R. § 4.71a. As the Veteran has not been shown to have ankylosis of the right knee, an increased evaluation of 40 percent under DC 5256 is not warranted. The Veteran has not been shown to have extension of the right knee limited to 30 degrees, and therefore an increased evaluation of 40 percent under Diagnostic Code 5261 is not warranted. Additionally, the Veteran was assigned a separate, 20 percent evaluation for right knee instability in September 2020 based on the finding of the September 2020 VA contract examination. Under the new criteria for Code 5262, effective February 7, 2021, the Veteran's malunion of tibia and fibula would be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, whichever results in the highest evaluation. The Veteran's evaluation would remain unchanged as he would receive a 30 percent evaluation for limitation of extension of the right knee to 20 degrees, pursuant to the new criteria, and would continue to receive a separate 20 percent evaluation for instability of the right knee. Therefore, there would be no change in his combined evaluation for the right knee. Accordingly, entitlement to a rating in excess of 30 percent for residuals, fracture of right tibia and fibula with degenerative changes of the right knee is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. IVDS, Lumbar Spine The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5242 pertains to degenerative arthritis of the spine and Diagnostic Code 5243 pertains to intervertebral disc syndrome. Both Code 5242 and 5243 direct that evaluations of the lumbar spine are to be rated under the General Rating Formula for Diseases and injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. As discussed above, the rating criteria for musculoskeletal disorders were revised on February 7, 2021. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria. Pursuant to the general rating criteria for diseases and injuries of the spine, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal, kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Pursuant to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Under the former rating criteria, Diagnostic Code 5242 evaluated Degenerative arthritis of the Spine (see also diagnostic code 5003). 38 C.F.R. § 4.71a, Code 5242 (2020). Under the new criteria, Code 5242 applies to Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either diagnostic code 5003 or 5010). See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (Effective February 7, 2021). Under the former rating criteria, Diagnostic Code 5243 evaluated Intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Code 5243 (2020). Under the new criteria, Code 5243 still applies to Intervertebral disc syndrome; but more specifically as this code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (Effective February 7, 2021). VA treatment records include an October 2016 CT scan of the lumbar spine which revealed loss of lordotic curvature with slight rotary dextro curvature apex at L3 with left lateral bridging osteophytes at L1-L2 and L2-L3, No subluxation. Ventral bridging osteophytes from L2 through L5. Moderate to severe disc height loss from L2-L3 through L4-L5 and severe at L5-S1. Moderate disc height. Severe arthritic disease was noted in treatment notes. Treatment notes reflect complaints of back pain. The Veteran underwent a VA back examination in April 2017. The VA examiner noted the Veteran's diagnosis of degenerative arthritis of the spine. Subjective complaints included increasing low back pain and radiation down the right leg. Flare-ups were reported as pain when lifting something heavy; pain is in lower back and requires rest for 20 minutes. Functional loss or functional impairment is described as limiting ability to stand to 30 minutes, sitting to 30 minutes, walking to 20 minutes, and lifting to 20 pounds. Range of motion of the back was flexion from 0 to 45 degrees; extension from 0 to 10 degrees; right lateral flexion from 0 to 20 degrees; left lateral flexion from 0 to 30 degrees; right lateral rotation from 0 to 30 degrees; left lateral rotation from 0 to 30 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination, in all ranges of motion, and caused functional loss. There was no evidence of pain with weight bearing. Objective evidence of localized tenderness or pain in bilateral paraspinal muscles in the lower lumbar area was noted. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. No guarding or muscle spasm of the back was present. Additional factors contributing to disability were interference with sitting and standing as each are limited to 30 minutes. Muscle strength test results for the lower extremities were normal in all areas. No muscle atrophy was present. Deep tendon reflexes were hypoactive in bilateral knees and ankles. Sensory examination results were normal for bilateral upper thighs, bilateral thigh/knee, bilateral lower leg/ankle and left foot and toes; decreased for right foot/toes. No ankylosis was present. The VA examiner noted that the Veteran has IVDS, but that the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported that he used a back brace when he goes out of the house. Pain was not observed on passive range of motion, active and passive range of motion were equal. Pain was not found on non-weight bearing; Veteran reported pain at the extremes of range of motion in all planes, right lateral flexion is the worst. VA treatment notes indicate the Veteran received a TENS unit in April 2018 for his back pain. In June 2018, the Veteran submitted a VA back conditions disability benefits questionnaire (DBQ) completed by his private physician, Dr. WRE. Dr. WRE noted the Veteran's diagnosis of degenerative disc disease, lumbosacral sprain/strain, and radiculopathy. Dr. WRE indicated that the Veteran reported flare-ups. Range of motion was noted to contribute to functional loss. The Veteran was unable to perform repetitive use testing due to pain and fatigue. Pain was noted on range of motion testing and contributed to functional loss or additional limitation of range of motion. Pain was present when joint was used in weight-bearing or non-weight bearing and contributed to functional loss or additional limitation of range of motion. The Veteran had localized tenderness or pain in lower lumbar midline and around right sacroiliac joint, tender glute, in both active and passive range of motion. Dr. WRE indicated the Veteran had guarding or muscle spasms of the thoracolumbar spine. Spinal contour was abnormal due to muscle spasm and guarding. Additional contributing factors of disability were less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. Pain significantly limited functional ability during flare-ups or with repeated use over time. Muscle strength was reduced in both lower extremities. Dr. WRE indicated the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Sensation was decreased in right upper thigh and right thigh/ankle only. Dr. WRE noted the Veteran's IVDS and that he had not had any incapacitating episodes in the past 12 months but that in March 2017 the Veteran had debilitating back pain and "was unable to do anything for weeks." Dr. WRE indicated the duration of the Veteran's incapacitating episodes for the past 12 months was at least 6 weeks. Dr. WRE noted the Veteran wore a back brace and used a TENS unit. VA requests for records from Dr. WRE relating to the Veteran's back disability received no response. VA treatment records through February 2019 continue to reflect treatment for complaints of back pain. At his March 2019 hearing, the Veteran testified that Dr. WRE never put him on bed rest. The Veteran underwent a VA contract back examination in March 2020. The VA contract examiner noted the Veteran's diagnosis of IVDS and degenerative disc disease of the lumbar spine. Subjective complaints included inability to lean over and bend at the waist, limited walking, lifting limit of 10 pounds and walking problems. Flare-ups of the back were reported as occurring daily and described as moderate, lasting for hours, and precipitated by activity such as walking and bending over. Flare-ups are alleviated by rest. Functional loss or functional impairment due to inability to bend over fully, loss of motion and limits on walking due to pain were reported. Range of motion testing revealed forward flexion from 0 to 30 degrees; extension from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees; left lateral flexion from 0 to 15 degrees; right lateral rotation from 0 to 15 degrees and left lateral rotation from 0 to 20 degrees. Pain was noted in all ranges of motion and caused functional loss. Objective evidence of pain on weight bearing was present. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine was noted in the mid thoracic paravertebral muscles and was severe. Pain, fatigability, and lack of endurance caused functional loss with repeated use over time. Range of motion decreased the following areas on repeated use over time: forward flexion to 20 degrees, left lateral flexion to 15 degrees and left lateral rotation to 15 degrees. Pain, fatigue, weakness, and lack of endurance contributed to functional loss during flare-ups. Range of motion during flare-up was described as forward flexion from 0 to 15 degrees; extension from 0 to 5 degrees; right lateral flexion from 0 to 10 degrees; left lateral flexion from 0 to 10 degrees; right lateral rotation from 0 to 10 degrees; and left lateral rotation from 0 to 15 degrees. Guarding or muscle spasm were not present. Additional factors contributing to disability were less movement than normal due to ankylosis, limitation or blocking adhesions; weakened movement due to muscle or of peripheral nerves injury; disturbance of locomotion; interference with sitting; and interference with standing. Muscle strength test results were 4 out 5 for right lower extremity and were 5 out of 5 for left lower extremity. There was no muscle atrophy present. Sensory examination revealed decreased sensation in the right lower leg/ankle and foot/toes. No ankylosis of the spine was present. The VA contract examiner noted the Veteran's IVDS and that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The VA contract examiner noted that the Veteran used a brace for his lower spine. Prior to March 25, 2020 The Board has carefully considered all evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level prior to March 25, 2020. The Veteran did not have flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Motion is, at worst, limited to forward flexion to 45 degrees warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use. The evidence of record does not show that the Veteran's overall disability picture warrants the assignment of a 40 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, nor a 40 percent disability under the Formula for Rating IVDS Based on Incapacitating Episodes as he did not experience any incapacitating episodes. Therefore, the Board finds that an evaluation in excess of 20 percent for the Veteran's IVDS prior to March 25, 2020 is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. Since March 25, 2020 The Board has carefully considered all evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's lumbar spine disability as of March 25, 2020 does not more nearly approximate the rating criteria of a higher disability evaluation. The 40 percent disability evaluation has been assigned effective March 25, 2020 based on the findings of the March 2020 VA spine examination. The Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine which would warrant a 50 percent disability evaluation; nor did he experience incapacitating episodes of IVDS at least 6 weeks during the past 12-month period so as to warrant a 60 percent disability evaluation. Motion is, at worst, limited to forward flexion to 25 degrees on repeated use warranting the currently assigned 40 percent rating, even upon consideration of the functional impact of pain with use. The Board notes the June 2018 VA Back DBQ completed by Dr. WRE indicating the Veteran has unfavorable ankylosis of the entire thoracolumbar spine, however this simply does not match up with the findings of the April 2017 and March 2020 VA examinations which revealed the Veteran had motion of his lumbar spine and no ankylosis. Additionally, there is no medical evidence of record which demonstrates the functional loss experienced by the Veteran during a flare-up is consistent with that contemplated by the rating criteria associated with ankylosis. See Chavis v. McDonough, No. 18-2928, U.S. App. LEXIS (April 16, 2021). The evidence of record does not show that the Veteran's overall disability picture warrants the assignment of a 50 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, nor a 60 percent disability under the Formula for Rating IVDS Based on Incapacitating Episodes. Therefore, the Board finds that an evaluation in excess of 40 percent for the Veteran's IVDS of the lumbar spine disability is not warranted at any point during the appellate period. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.