Citation Nr: 21030022 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-09 299 DATE: May 17, 2021 ORDER An increased disability rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine (thoracolumbar spine disability) is denied. An increased disability rating in excess of 10 percent for right knee patellar tendonitis (right knee disability) is denied. An increased disability rating in excess of 10 percent for left knee patellar tendonitis (left knee disability) is denied. A separate 10 percent disability rating for slight right knee instability is granted. A separate 10 percent disability rating for slight left knee instability is granted. A higher initial disability rating in excess of 10 percent for the right ankle strain (right ankle disability) is denied. A higher initial disability rating in excess of 10 percent for the left ankle strain (left ankle disability) is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire rating period from July 7, 2015, the thoracolumbar spine disability has more nearly approximated pain and limitation of forward flexion greater than 30 degrees, without ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12-month period. 2. For the entire rating period on appeal from July 7, 2015, the right knee patellar tendonitis disability has been manifested by flexion greater than 60 degrees, extension less than 5 degrees and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 3. For the entire rating period on appeal from July 7, 2015, the left knee patellar tendonitis disability has been manifested by flexion greater than 60 degrees, extension less than 5 degrees and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 4. For the entire rating period on appeal from July 7, 2015, the right knee has been manifested by slight instability. 5. For the entire rating period on appeal from July 7, 2015, the left knee has been manifested by slight instability. 6. For the entire initial rating period on appeal from July 7, 2015, the right ankle disability has been manifested by symptoms of painful moderate limitation of motion, without marked limitation of motion, malunion of the os calcis or astragalus, and/or ankylosis of the ankle, subastragalar joint, or tarsal joint, and the Veteran did not undergo an astragalectomy. 7. For the entire initial rating period on appeal from July 7, 2015, the left ankle disability has been manifested by symptoms of painful moderate limitation of motion, without marked limitation of motion, malunion of the os calcis or astragalus, and/or ankylosis of the ankle, subastragalar joint, or tarsal joint, and the Veteran did not undergo an astragalectomy. CONCLUSIONS OF LAW 1. For the entire rating period from July 7, 2015, the criteria for an increased disability rating in excess of 20 percent for the thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. For the entire rating period on appeal from July 7, 2015, the criteria for an increased disability rating in excess of 10 percent for the right knee patellar tendonitis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. For the entire rating period on appeal from July 7, 2015, the criteria for an increased disability rating in excess of 10 percent for the left knee patellar tendonitis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. Resolving reasonable doubt in the Veteran's favor, for the entire rating period on appeal from July 7, 2015, the criteria for a separate 10 percent disability rating for slight instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 5. Resolving reasonable doubt in the Veteran's favor, for the entire rating period on appeal from July 7, 2015, the criteria for a separate 10 percent disability rating for slight instability of the left knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 6. For the entire initial rating period on appeal from July 7, 2015, the criteria for a higher initial disability rating in excess of 10 percent for the right ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 7. For the entire initial rating period on appeal from July 7, 2015, the criteria for a higher initial disability rating in excess of 10 percent for the left ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 2005 to December 2006. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 claimant. 38 C.F.R. § 4.3. 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); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the thoracolumbar spine disability For the entire rating period on appeal from July 7, 2015, the Veteran is in receipt of a 20 percent disability rating for the service-connected degenerative arthritis of the thoracolumbar spine (thoracolumbar spine disability) under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran contends that an increased disability rating for the thoracolumbar spine disability is warranted due to pain and loss of functional ability. See July 2016 Notice of Disagreement. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated 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 rating for that segment. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from July 7, 2015, the criteria for an increased disability rating in excess of 20 percent for the thoracolumbar spine disability have not been met. Throughout the rating period on appeal from July 7, 2015, the thoracolumbar spine disability has more closely approximated pain, stiffness, and limitation of forward flexion greater than 30 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating). The Veteran underwent a VA examination in August 2015. Examination revealed forward flexion measured to 60 degrees, with a combined range of motion of 165 degrees in the thoracolumbar spine. The August 2015 VA examiner noted painful motion and localized tenderness across the thoracolumbar spine that does not result in abnormal gait or abnormal spinal contour. The Veteran was examined during a flare up and also following repetitive use. The VA examiner found that flare ups and repetitive use caused increased symptoms without additional changes in range of motion noted on examination. The VA examiner noted the Veteran did not experience any incapacitating episodes of back pain in the past year. An August 2016 VA treatment record reflects the Veteran was able to perform trunk flexion with finger and palms to the floor, although more pain was reported coming back up from flexion than going down. Extension, right rotation, and left rotation were all measured to 30 degrees with painful motion noted upon examination. See also, December 2016 VA treatment record; June 2017 VA treatment record. The Veteran underwent another VA examination in September 2017, the examination report for which shows the Veteran complained of constant back pain that radiates down both lower extremities. The Veteran endorsed episodes of flare ups resulting in pain, stiffness, and decreased range of motion. Range of motion in the thoracolumbar spine was normal with flexion measured to 90 degrees and a combined range of motion of 240 degrees in the thoracolumbar spine. The VA examiner noted no objective evidence of painful motion was noted and found no additional functional loss or loss of motion in the thoracolumbar spine during episodes of flare ups and following repetitive use. The September 2017 VA examiner noted that examination of the thoracolumbar spine was unremarkable and that the thoracolumbar spine disability was asymptomatic. The record also includes private treatment records spanning a two-month period in August 2017 and September 2017 that represent assessments of extreme and severe thoracolumbar spine symptoms such a flexion limited to 30 degrees and left side bending of only 2 degrees; however, these private treatment records showing severe thoracolumbar spine symptoms are inconsistent with the other lay and medical evidence of record, including VA treatment records, both prior to and immediately after the two-month private treatment period. See June 2017 VA treatment record (reflecting Veteran was able to forward bend with fingers and palms touching the floor, with more pain noted coming back up from forward flexion; extension, right rotation, and left rotation all measured at 30 degrees); September 2017 VA examination report (reflecting full range of motion in the thoracolumbar spine without objective evidence of painful motion). As such, reconciling the disability picture into a whole, the Board finds that purported severe symptoms as represented in the private treatment records from August 2017 and September 2017 are outweighed by the other lay and medical evidence of record, so outweighed by the composite picture of disability in the several year rating period in this case. After considering all the evidence, the Board finds that the weight of the evidence demonstrates that the thoracolumbar spine disability has not manifested in ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating). The overall disability picture does not demonstrate that the thoracolumbar spine was limited to 30 degrees or less of forward flexion throughout the rating period on appeal from July 7, 2015. Instead, the August 2015 VA examiner measured forward flexion was limited to 60 degrees, and the September 2017 VA examiner found full flexion in the thoracolumbar spine of 90 degrees without evidence of painful motion. For the above reasons, the Board finds that, for the rating period from July 7, 2015, the weight of the evidence is against the assignment of an increased disability rating for the thoracolumbar spine disability in excess of 20 percent. 38 U.S.C. § 5107; 38 C.F.R. § § 4.3, 4.7. 2. Rating the right knee patellar tendonitis disability 3. Rating the left knee patellar tendonitis disability For the entire rating period on appeal from July 7, 2015, the Veteran is in receipt of 10 percent disability ratings for the right and left knee patellar tendonitis disabilities under the substantive rating criteria of Diagnostic Code 5003 (10 percent for painful, noncompensable limitation of motion). 38 C.F.R. § 4.71a. The Regional Office (RO) assigned 10 percent ratings for the right and left knee disabilities for limitation of flexion under Diagnostic Code 5260 for the rating period from July 7, 2015 in the September 2015 rating decision on appeal; however, the reasons and bases analysis in assigning the initial 10 percent ratings show that the criteria of Diagnostic Code 5003 were used. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the knee) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The evidence in this case shows only noncompensable limitation of right and left knee flexion and extension; therefore, use of Diagnostic Codes 5260 or 5261 with the 10 percent rating is not appropriate until the evidence shows actual compensable limitation of motion. The appropriate diagnostic codes for rating compensable limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." Id. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Id. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Id. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. Id. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. Diagnostic Code 5003 provides a rating of 10 percent for a knee (major) joint where there is evidence of painful, but noncompensable limitation of motion. 38 C.F.R. § 4.71a. See also 38 C.F.R. § 4.59 (providing that painful motion should be considered limitation of motion, with a 10 percent rating as the minimum rating for a painful major joint); Burton v. Shinseki, 25 Vet. App. 1 (2011). After a review of all the lay and medical evidence of record, the Board finds that, for the entire rating period on appeal from July 7, 2015, the right and left knee disabilities have been manifested by flexion greater than 60 degrees, extension less than 5 degrees and painful motion, without arthritis, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. Accordingly, the Board finds that for the entire rating period on appeal from July 7, 2015, the criteria for increased disability ratings in excess of 10 percent for the right and left knee disabilities have not been met under Diagnostic Code 5260. 38 C.F.R. §§ 4.3, 4.7, 4.71a. An August 2015 VA examination report reflects the Veteran reported pain and instability in both knees that caused difficulty walking. Range of motion in the right knee was measured to 120 degrees of flexion and 0 degrees of extension, with pain noted on examination that causes functional loss. Range of motion in the left knee was measured to 110 degrees flexion and 0 degrees of extension, with pain noted upon examination that causes functional loss. The VA examiner found that flare ups and repetitive use caused increased symptoms without additional changes in range of motion noted in either knee on examination. A June 2017 VA treatment records reflect the Veteran was evaluated for an underlying hereditary connective tissue disease due to a history of multiple joint dislocations and sprains with findings of joint hypermobility. Upon examination of the Veteran, the VA provider noted negative findings for genu recurvatum. Another September 2017 VA examination report shows the Veteran reported bilateral knee weakness described as both knees locking out and feeling unstable. Range of motion in both the right and left knee were measured to be normal at 140 degrees of flexion and 0 degrees extension, without pain noted on examination. The VA examiner noted that at the time of the examination, the Veteran's right and left knee symptoms had resolved and examination of the right and left knees were unremarkable. The evidence of record shows that the Veteran had, at worst, right knee flexion to 120 degrees and 0 degrees of extension, and left knee flexion to 110 degrees and 0 degrees of extension, as noted in the August 2015 VA examination report, which does not more nearly approximate limitation to 30 degrees of flexion or 15 degrees of extension as needed for increased (20 percent) ratings. Therefore, increased disability ratings in excess of 10 percent is not warranted under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension) for the right or left knees, or separate 10 percent ratings for both knee flexion and knee extension, for the entire rating period from July 7, 2015. 38 C.F.R. § 4.71a. The Board has considered whether higher disability ratings for the right or left knees are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. While the right and left knee patellar tendonitis disabilities have caused pain which has restricted overall motion, and the Veteran has reported right and left knee pain and difficulty with walking and standing for a long period of time, even taking into account additional functional limitation due to pain, following repetitive use, and during episodes of flare ups, the lay and medical evidence, including as shown in the VA treatment records, private treatment records, and VA examination reports, indicate ranges of motion that do not more nearly approximate the 20 percent criteria, or separate 10 percent criteria for both compensable limitation of flexion with compensable limitation of extension. Based on the evidence discussed above, the degree of functional impairment does not warrant an increased rating based on limitation of motion of the right or left knees. 4. Separate rating for right knee instability 5. Separate rating for left knee instability The Board has also considered whether separate disability ratings are warranted for any other right and/or left knee disability. The evidence of record does not reflect that the right or left knee is ankylosed, has recurrent subluxation, that the semilunar cartilage is dislocated, that the semilunar cartilage has been removed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, and/or that the right and/or left knee disabilities have been manifested by limitation of flexion or extension to a compensable degree, or locking or effusion, separate or increased disability ratings are not warranted under Diagnostic Codes 5256, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. As noted above, Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections recurrent subluxation or instability and patellar instability, each with its own criteria. 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 5257). For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for 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. A 20 percent is warranted under one of two scenarios: 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 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 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. For patellar instability, three ratings are available. A 10 percent rating is warranted for 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. A 20 percent rating is warranted for a 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 rating is warranted for 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. Two Notes accompany the revised Diagnostic Code 5257. Note 1 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). The Board finds that the evidence of record is at least in equipoise on the question of whether there is slight right and left knee instability as set forth under Diagnostic Code 5257 prior to February 7, 2021. Although the August 2015 and September 2017 VA examination reports reflect negative findings for right and left knee joint instability, the Veteran has endorsed symptoms of occasional right and left knee instability that she wears a knee brace to treat. See March 2021 Board hearing transcript. Such symptomatology represents a "slight" impairment of the Veteran's right and left knee functionality analogous to instability of the knee. After a review of all the lay and medical evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire rating period on appeal from July 7, 2015, the right and left knee have shown "slight" instability; therefore, separate 10 percent ratings for right and left knee instability are warranted under Diagnostic Code 5257. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board further finds that separate ratings in excess of 10 percent for right and left knee instability are not warranted under revised Diagnostic Code 5257 effective February 7, 2021. The evidence does not demonstrate that there has been a right or left knee sprain, incomplete ligament tear, or repaired complete ligament tear, or diagnosed condition involving the patellofemoral complex with recurrent instability after undergoing surgical repair in either the right or the left knees. As such, higher initial ratings in excess of 10 percent are not warranted for either the right or left knees under revised Diagnostic Code 5257. 38 C.F.R. § 4.71a. 6. Rating the right ankle disability 7. Rating the left ankle disability The Veteran is in receipt of initial 10 percent disability ratings for the right and left ankle disabilities for the entire initial rating period on appeal from July 7, 2015 under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion. Under Diagnostic Code 5271, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under the recently revised rating criteria, effective February 7, 2021, Diagnostic Code 5271 has been updated to specify that a 10 percent rating is assigned when limitation of motion is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent rating is assigned when limitation of motion is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence of record, the Board finds that higher initial disability ratings for the right and left ankle disabilities in excess of 10 percent are not warranted. A rating in excess of 10 percent (20 percent) under Diagnostic Code 5271 requires a showing of marked limitation of motion in the right or left ankle. For the entire initial rating period on appeal from July 7, 2015, the right and left ankle disabilities have not been manifested by symptoms of marked limitation of motion, as needed for a 20 percent rating, even with consideration of any additional limitation due to pain, stiffness, and swelling. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca. The Veteran underwent a VA examination in August 2015, the examination report for which reflects the Veteran reported right and left ankle pain and popping, and that the ankles were unable to bear weight and caused difficulty sleeping at night. The Veteran endorsed episodes of flare ups in the right ankle described as right ankle pain and giving way. The Veteran endorsed episodes of flare ups in the left ankle described as left ankle popping and weakness. Right ankle plantar flexion was measured to 30 degrees and dorsiflexion was measured from 0-20 degrees with pain noted on examination that causes functional loss. Left ankle plantar flexion was measured to 30 degrees and dorsiflexion was measured from 0-15 degrees with pain noted on examination that causes functional loss. The VA examiner opined that flare ups and repetitive use caused increased symptoms without additional changes in range of motion noted in either ankle on examination. The Veteran underwent another VA examination in September 2017. Range of motion in both the right and left ankles were measured to be normal at 45 degrees of plantar flexion and dorsiflexion from 0-20 degrees, without pain noted on examination. The VA examiner noted that at the time of the examination, the Veteran's right and left ankle symptoms had resolved and examination of the right and left ankles were unremarkable. Based on the foregoing evidence, the Board finds that for the initial rating period on appeal from July 7, 2015, the right and left ankle disabilities have not been manifested by symptoms that more nearly approximate marked limitation of motion to warrant higher initial 20 percent disability ratings. Despite the Veteran's reports of severe right and left ankle symptoms of pain, instability, swelling, and popping during the August 2015 VA examination, the Board nonetheless finds that the right and left ankle disabilities did not manifest in symptoms of marked limitation of motion. Throughout the entire initial rating period on appeal from July 7, 2015, right ankle dorsiflexion was, at worst, measured to 20 degrees, and right ankle plantar flexion was measured to 30 degrees, including during flare ups and following repetitive use; left ankle dorsiflexion was, at worst, measured to 15 degrees, and left ankle plantar flexion was measured to 30 degrees, including during flare ups and following repetitive use. For these reasons, the Board finds that the weight of the evidence demonstrates right and left ankle symptoms that more nearly approximate moderate limitation of motion in the right and left ankles. Moreover, throughout the entire initial rating period on appeal from July 7, 2015, the right and left ankle disabilities have not been manifested by ankylosis, malunion of the os calcis or astragalus, and the Veteran did not undergo an astragalectomy as shown by the various VA examination reports discussed above. Accordingly, the Board finds that higher initial ratings in excess of 10 percent for the right and left ankle disabilities under Diagnostic Codes 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastragalar or tarsal joint), 5273 (malunion of the os calcis or astragalus), or 5274 (astragalectomy) are not warranted at any time during the initial rating period on appeal from July 7, 2015. 38 C.F.R. § 4.71a. REASONS FOR REMAND 8. A TDIU is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record or the Veteran during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2016 Notice of Disagreement, the Veteran indicates that she has had to turn down jobs due to the service-connected thoracolumbar spine disability. During the March 2021 Board hearing, the Veteran testified that she had gone from having four jobs to none. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the increased rating issues decided herein; however, a remand is required prior to adjudication of the claim for a TDIU for the Agency of Original Jurisdiction (AOJ) to adjudicate TDIU in the first instance. The matter is REMANDED for the following actions: 1. Send the Veteran an Individual Unemployability form (VA Form 21-8940). The specific information in that form is requested from the Veteran; the Veteran should complete and return this form. Failure to fully complete this form may result in denial of the TDIU claim. See 38 C.F.R. § 3.158(a). 2. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for TDIU. The AOJ should take any additional development as deemed necessary. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.