Citation Nr: 21030210 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 11-31 356 DATE: May 18, 2021 ORDER Service connection for a cervical spine disability is denied Service connection for a disability of the right upper extremity associated with a cervical spine disability is denied. Service connection for a disability of the left upper extremity associated with a cervical spine disability is denied. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. For the period prior to December 17, 2019, a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine, is denied. For the period from December 17, 2019, a disability rating in excess of 40 percent for degenerative disc disease, lumbar spine, is denied. For the period from January 8, 2010, a disability rating of 40 percent for radiculopathy, right lower extremity, is granted. For the period prior to December 17, 2019, a 20 percent disability rating for radiculopathy, left lower extremity, is granted. For the period from December 17, 2019, a 40 percent disability rating for radiculopathy, left lower extremity, is granted. From July 17, 2015, a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is granted. REMANDED Initial increased rating for left knee patellofemoral pain syndrome, currently rated 10 percent disabling, is remanded. For the period prior to July 17, 2015, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a cervical spine disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that disabilities of the right and left upper extremities are due to or aggravated by a service-connected disability. 3. The evidence does not demonstrate that the Veteran has a separate diagnosis of PTSD which is attributable to a corroborated stressor event in service. 4. The weight of the evidence is against a finding that an acquired psychiatric disability manifested during the Veteran's period of active service, or that it is otherwise the result of a disease or injury during active service, or that it is proximately due to or aggravated by a service-connected disability. 5. For the period prior to December 17, 2019, degenerative disc disease, lumbar spine, has not been manifested by forward flexion of 30 degrees or less, nor ankylosis of the thoracolumbar spine, with no showing of incapacitating episodes having a total duration of at least 4 weeks. 6. From December 17, 2019, degenerative disc disease, lumbar spine, is manifested by forward flexion of 30 degrees or less, without ankylosis of the entire thoracolumbar spine, with no showing of incapacitating episodes having a total duration of at least 6 weeks. 7. From January 8, 2010, radiculopathy of the right lower extremity has been manifested by moderately severe incomplete paralysis which is wholly sensory without marked muscular atrophy. 8. Prior to December 17, 2019, radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis which is wholly sensory. 9. From December 17, 2019, radiculopathy of the right lower extremity is manifested by moderately severe incomplete paralysis which is wholly sensory without marked muscular atrophy. 10. From July 17, 2015, the Veteran's service-connected disabilities preclude substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for a disability of the right upper extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a disability of the left upper extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 5. For the period prior to December 17, 2019, the criteria for a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 6. For the period from December 17, 2019, the criteria for a disability rating in excess of 40 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 7. For the period from January 8, 2010, the criteria for a 40 percent disability rating for radiculopathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 8. For the period prior to December 17, 2019, the criteria for a disability rating of 20 percent for radiculopathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 9. For the period from December 17, 2019, the criteria for a disability rating of 40 percent for radiculopathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 10. From July 17, 2015, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1992 to January 1995. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. Certain chronic diseases, such as degenerative arthritis and psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Cervical spine & radiculopathy, upper extremities The Veteran asserts that he has a cervical spine disability and associated radiculopathy of the upper extremities due to an in-service motor vehicle accident. Service treatment records reflect that in June 1994 the Veteran was in a motor vehicle accident wherein he complained of back, neck, and left knee pain. There was an initial diagnosis of myositis and in July 1994 a diagnosis of mild myositis resolving. 05/11/2016 STR-Medical at 20-21; 01/08/2010 Medical Treatment Record-Non-Government Facility. On a December 1994 Report of Medical History, the Veteran checked the 'Yes' boxes for 'swollen or painful joints,' 'frequent or severe headache,' 'head injury,' 'recurrent back pain,' and 'trick or locked knee.' The examiner addressed the left knee, headaches, head injury, and recurrent low back pain on and off; the neck was not included. 05/11/2016 STR-Dental at 19-20. A July 2010 cervical spine x-ray was negative. 11/18/2010 CAPRI at 1. In July 2010, the Veteran underwent a VA examination. He reported residual neck pain since the motor vehicle accident. The examiner diagnosed chronic cervical strain. The examiner opined that it is less likely than not that his cervical spine condition is due to service. The examiner noted that the Veteran did have complaints of neck pain shortly after the car wreck in the military but then there were no other complaints of neck pain, including at the time of the military discharge. He also has not complained of continued neck pain as best the examiner could tell since military discharge when he was seeing a physician with it so the examiner found that his cervical spine condition was self-limited in service and that a separate condition presented after military discharge. The examiner noted that it has been 15 years since he was discharged from the military, which is plenty of time to develop another condition in the same anatomic site. The Board finds that such opinion is entitled to limited probative weight as the examiner did not have access to the claims folder. At the Board hearing, the Veteran testified that a week or two after the motor vehicle accident he began to experience pain that would shoot down his arms. If he turned his head pain would shoot down the back of his arms into his forearms. After the accident, he had stiffness and pain in his neck and had to wear a necktie for about 6 months. He testified that he has been experiencing those symptoms since service. The Veteran's spouse testified that his neck problems have been continuous and have gotten worse. 02/04/2019 Hearing Transcript at 9-12. In December 2020, a C&P examiner reviewed the claims folder in conjunction with an interview with the Veteran as the examiner determined that an examination would likely provide no additional relevant evidence. The examiner diagnosed chronic cervical spine pain. The examiner noted that the Veteran is claiming a diagnosis of a cervical spine disability that was due to the in-service motor vehicle accident during service. He was injured in the motor vehicle accident and was seen at the hospital with multiple contusions, abrasions, and for low back pain. He was discharged from service following the injury. He reported injuring his neck, but his low back pain was addressed. He reported telling a VA provider about his neck pain in 2013. The examiner opined that a cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner stated that there are no service treatment records reflecting complaints, treatment, or a diagnosis similar to that claimed, and the medical evidence supports the conclusion that a persistent disability was not present in service, as the December 1994 exit examination was silent. The evidence does not show the neck condition developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. He sought treatment in 2013 for neck pain/numbness symptoms. There is no chronicity or consistency established. The examiner noted that possible etiologies were age, body habitus, his work in construction and carpal tunnel syndrome. The Board accepts the opinion of the December 2020 examiner as highly probative medical evidence on the subject, as such was based on review of medical records on file, to include the service treatment records, and contains a detailed rationale for the medical conclusions reached. See Boggs v. West, 11 Vet. App. 334 (1998). As the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board acknowledges the August 2019 opinion of Dr. T.R.C. who reviewed service records and medical records. The current diagnoses of cervical spondylosis and bilateral cervical radiculopathy with radicular pain to his bilateral arms were acknowledged. The examiner reported the history of an in-service motor vehicle accident in June 1994, after which the Veteran sought medical attention for a whiplash injury he suffered. There were several repeat visits over the following month to evaluate ongoing neck and back pain and tenderness and was found to have ongoing tenderness in the neck muscles. In the acute and subacute setting, he was diagnosed with "mild myositis, resolving." The direct muscle pain and tenderness was accompanied by an intermittent shooting pain down his bilateral arms. The Veteran endorsed "recurrent back pain" and "head injury" on the December 1994 Report of Medical History, which were not addressed on his separation physical examination. Dr. T.R.C. next noted that in February 2019, the Veteran and his wife described the Veteran's continuity of neck and back symptoms which began with the in-service motor vehicle accident. His pain persisted from the time of the accident to his separation from service and continued after that. He was not receiving regular medical care for a number of years after his separation, but he attempted to ameliorate his symptoms through stretches and over-the-counter medications such as Motrin. The Veteran's wife specifically commented on prolonged neck stiffness and the Veteran had difficulty turning his head to look at someone sitting next to him. These symptoms persisted and progressed until the Veteran began receiving more regular medical attention around 2009. He continued to exhibit symptoms of cervical spondylosis complicated by bilateral cervical radiculopathy. Dr. T.R.C. found that his clinical course, particularly with significant degenerative change documented on imaging as young as age 38, is consistent with the natural history of post-traumatic arthritis. Degenerative changes take years to decades to develop and usually present in persons quite a bit older than the Veteran. A traumatic injury such as the Veteran's whiplash injury, however, can incite an earlier and more severe disease than would otherwise be seen. Given that his neck pain resulted from an in-service motor vehicle accident, that he has a clear continuity of neck symptoms since that time, and that his lumbar spine condition which resulted from the same incident is considered service-connected, it is at least as likely as not that his cervical spondylosis and bilateral cervical radiculopathy are directedly related to his military service. 08/06/2019 Third Party Correspondence. While the Board finds such opinion is probative, the finding of a clear continuity of neck symptoms is not supported by the record. As detailed above, it is clear that the Veteran sustained injury to the neck at the time of the June 1994 motor vehicle accident. However, he underwent an examination for separation purposes approximately 6 months later and he did not voice any complaints related to the neck, even though he voiced complaints related to other extremities. It is reasonable to expect that if, per the Veteran's testimony, he had to wear a "necktie" for 6 months due to neck symptoms that he would have voiced complaints related to the neck when he underwent an examination 6 months after the motor vehicle accident. The Veteran's lack of complaints at the time he underwent the separation examination tends to have more probative value than reports and recollections offered decades after separation from service. Also, Dr. T.R.C. stated that the Veteran's reports on his Report of Medical History were not addressed on his separation physical exam, but the December 1994 Report of Medical Examination does reflect findings related to the knee and the second page of the Report of Medical History addressed all of the Veteran's complaints listed on the first page of the Report of Medical History. 05/11/2016 STR-Dental at 17, 20. Dr. T.R.C.'s opinion hinges on a finding of continuity of symptomatology of the neck symptoms that are not supported by the medical record and that are based on testimony offered decades later rather than based on the contemporaneous medical records. The Board acknowledges that the Veteran is competent to describe symptoms of neck pain at the time of the in-service motor vehicle accident and thereafter and acknowledges his lay statements and testimony at the Board hearing. However, the question of whether the symptoms the Veteran experienced in service or following service are related to a current disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). While the Veteran believes he has a cervical spine disability due to active military service, the preponderance of the evidence weighs against finding that an in-service chronic disability occurred. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377; see Kahana v. Shinseki, 24. Vet. App. 428 (2011). Again, while competent to report a history of symptoms and of self-treatment such statements are outweighed in this case by the normal separation examination, for the reasons discussed above. The Veteran has claimed service connection for radiculopathy of the right and left upper extremities due to his cervical spine disability. With regard to the pain and numbness in his hands, the December 2020 examiner stated that this is due to carpal tunnel syndrome and ulnar neuropathy, not due to his neck. Notwithstanding this, as service connection has not been established for a cervical spine disability, it follows that there is no basis for consideration of service connection for disabilities of the right and left upper extremities on a secondary basis. Acquired psychiatric disability, to include PTSD The Veteran claims service connection for PTSD and depression due to in-service experiences. Service treatment records reflect that on a December 1994 Report of Medical History completed for separation purposes he checked the 'No' boxes for 'depression or excessive worry' and 'nervous trouble of any sort.' 05/11/2016 STR-Dental at 19. Military personnel records reflect that the Veteran was court martialed for assault and conspiracy to commit assault in October 1993. 05/11/2016 Military Personnel Record at 7. Specifically, he destroyed government property by breaking a window in the 4th platoon office and beating two barrack doors with an E-Tool. The Veteran asserts that he has PTSD and depression due to guilt associated with hazing of other soldiers, and he asserts that he was forced to perform hazing. 02/04/2019 Hearing Transcript at 15-16; see also 08/25/2010 VA 21-0781 Statement in Support of Claim. The Veteran also asserts that in the summer of 1993 at Kings Bay, Georgia, a fellow soldier committed suicide and he was "basically trying to hold his brains in his head until the life flight arrived..." Id. at 17-18. The Veteran also asserts that he witnessed a soldier in boot camp drown. Id. at 18-19. In a prior statement, the Veteran asserted that sometime between February to May 1992 he came upon a fellow solider attempting to commit suicide by slitting his wrists and the soldier was discharged for a mental illness. 09/30/2010 VA 21-0781a, Statement in Support of Claim. A September 2010 statement from a fellow soldier outlines in-service hazing experiences. 10/08/2010 Buddy/Lay Statement. As the Veteran's claimed stressor is not due to combat service or due to fear of hostile military or terrorist activity, in order to establish service connection for PTSD, what is needed is a current medical diagnosis of this condition (in accordance with DSM-IV/V, presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); credible supporting evidence that the claimed in-service stressor(s) actually occurred; and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). In January 2020, VA contacted the Marine Corps University (MCU) to obtain further information regarding the Veteran's claimed stressors, specifically the suicide of a fellow soldier (surname beginning with C), the drowning of a fellow soldier (surname beginning with S), and the attempted suicide of another unnamed soldier. 01/03/2020 Web/HTML Documents. In August 2020, MCU responded that suicide, murder, on duty accident, accidental injury/death, shooting intentional/nonintentional, personal assault, involvement with police or civilian, vehicle accident, and any off-base incident automatically requires investigation. However, investigation reports will not be recorded in a unit's report. Medical incidents will be recorded in the Veteran's SRB if treated at a military facility, and off base incident reports could be available at the police department where it was filed. It was suggested that death inquiries should be forwarded to the casualty section. In August 2020, VA contacted the casualty section of MCU. In August 2020, the casualty section responded that they were unable to provide proof of death of the Marines requested. A thorough review of records met with negative results. If more identifying information could be provided they would be able to resume the search. The Board notes that no further identifying information has been provided. In October 2020, the Veteran underwent a C&P examination wherein the examiner diagnosed unspecified depressive disorder with anxious distress. The examiner summarized in detail the Veteran's service treatment records and statements and testimony, and a statement from a buddy regarding the claimed in-service stressors. Based upon a review of the record and his self-report at the time of the examination, the Veteran has symptoms of depression. There is no verifiable link to his service. Military records show he was incarcerated for assault in late 1993. Records are silent for any injuries from beatings and are silent for any Criterion A stressors for PTSD. His unit records are silent for any deaths or attempted suicides. Of note he has variously said he witnessed his friend's suicide or came upon the scene afterward. He also told a VA provider his right forearm scar was from a stabbing whereas it was not. The examiner opined that it is less likely as not that his depression is due to active service. Service connection for PTSD cannot be established here, as there is no credible supporting evidence that the claimed in-service stressors occurred. VA efforts to verify the Veteran's claimed stressors resulted in negative results and his identified stressors cannot be corroborated, as required by 38 C.F.R. § 3.304 (f). The Veteran has otherwise not offered sufficient information to obtain further verification. The Board acknowledges that VA outpatient treatment records reflect a diagnosis of PTSD, but such diagnosis was not based on a verified in-service stressor. Thus, such diagnosis cannot provide the basis for service connection. In this regard, the Board notes the July 2019 private opinion from J.P., Psy.D. linking PTSD to active service. Again, absent a verified stressor, this opinion cannot serve as a basis for an award of service connection. With regard to the diagnosed psychiatric disability, specifically unspecified depressive disorder with anxious distress, the Board accepts the October 2020 C&P examiner's opinion as being the most probative medical evidence on the subject as such was based on a mental status examination, based on review of medical records on file, and contains a detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). As the Board has accepted this opinion as the most probative, it follows that the preponderance of the evidence does not establish that the Veteran has an acquired psychiatric disability due to service. In so finding, the July 2019 private opinion from J.P., Psy.D. is noted. In this opinion, the Veteran's depression is attributed to his described in-service events. While a verified stressor is not required for a non-PTSD claim, the Board must still weigh the record to determine whether there is at least equipoise as to each element of the claim. As the correspondence of record indicates that casualties would be reported, the negative search results, as well as inconsistencies in the Veteran's reporting of the stressors, weigh against the claim. Moreover, the normal separation examination accompanied by a report of medical history denying relevant complaints further weighs against the claim. Equipoise is not met here and the claim is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.§ 1155; 38 C.F.R.§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. With regard to the bilateral knee, cervical spine, and lumbar spine disability issues, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an "opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The spine has no opposite joint. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran's contentions, treatment records, and C&P examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is noted that the Veteran has not raised any challenges with respect to any deficiencies in the examination reports. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Lumbar spine The Veteran's degenerative disc disease of the lumbar spine is rated 20 percent disabling from January 8, 2010 to December 16, 2019, and 40 percent disabling from December 17, 2019, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Intervertebral disc syndrome is to be evaluated 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 method results in the higher evaluation when all disabilities are combined under § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted 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 rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula For Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Effective February 7, 2021, the General Rating Formula for Diseases and Injuries of the Spine was revised as follows: 5242 Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); 5243 Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings musculoskeletal system, 85 Fed. Reg. 230, 76462 (November 30, 2020). For the period prior to December 17, 2019, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms associated with his lumbar spine. However, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Flexion was to 78 degrees on evaluation in July 2010 with pain throughout the entire range of motion, but his range of motion was not additionally limited following repetitive use. On evaluation in January 2013, flexion was to 85 degrees with no objective evidence of painful motion and no change on repetitive motion testing. There was no localized tenderness of pain to palpation for joint, and no guarding or muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. On examination in April 2014, flexion was to 70 degrees with painful motion at 70 degrees but with no change on repetitive motion testing. There was no localized tenderness of pain to palpation for joint, and no guarding or muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour but he did have muscle spasms not resulting in abnormal gait or abnormal spinal contour. An October 2017 examination reflects flexion to 80 degrees with pain that did not result in/cause functional loss. There was no change on repetitive motion testing. He had guarding or muscle spasm not resulting in abnormal gait or abnormal spinal contour. He has spasms develop and his body tightens when doing functional activities. The objective findings combined with the subjective complaints of the Veteran do not support a disability rating in excess of 20 percent for his lumbar spine disability, as even with consideration of his functional limitations forward flexion of 30 degrees or less is not shown, nor is favorable ankylosis of the entire thoracolumbar spine shown. None of the medical evidence reflects that for the period prior to December 17, 2019 that the Veteran has demonstrated a limitation of flexion to 30 degrees or less at any time, to include in consideration of functional limitations and loss. Thus, a higher evaluation based on limitation of flexion under the rating criteria is not warranted. For the period from December 17, 2019, the 40 percent rating contemplates forward flexion 30 degrees or less. Unfavorable ankylosis of the entire thoracolumbar spine is not shown thus a rating in excess of 40 percent is not shown. In consideration of the DeLuca factors, for the period prior to December 17, 2019, while the Veteran has functional limitations due to pain, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for a higher rating even with consideration of pain. The 20 percent rating in effect compensates him for painful motion and functional limitations with sitting and standing for long periods but assigning the next higher rating for painful motion would not accurately assess the resulting functional loss, even when considering the pain. The 20 percent rating contemplates the Veteran's functional loss associated with his thoracic spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for either period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher respective 40 percent evaluation. With regard to the period from December 17, 2019, he is in receipt of the maximum compensable rating which could be assigned for limitation of motion as contemplated by 38 C.F.R. § 4.59. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the December 2019 examination report reflects that pain, weakness, fatigue and incoordination would significantly limit functional ability during flare-ups but there was no change in forward flexion as a result or other range of motion findings. The April 2014 C&P examination report reflects that pain, weakness, fatigability, or incoordination would not significantly limit functional ability during flare-ups as the Veteran denied additional limitations of range of motion. While the October 2017 examiner could not specifically address functional limitations during flare-ups without resorting to speculation, the prior examinations of record reflect that flexion was at worst to 70 degrees which far exceeds a finding of 30 degrees to warrant the next higher rating. Thus, there is no basis for the assignment of ratings in excess of the 20 percent and 40 percent ratings in effect in contemplation of symptomatology during flare-ups. Consideration has also been given to assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board acknowledges that the January 2013 examiner checked the box for 'at least 6 weeks' with regard to the total duration of all incapacitating episodes over the past 12 months. No further comment was provided. Such finding, however, is not consistent with the other evaluations of record nor the treatment records on file. For example, the April 2014 examiner commented that there was no IVDS documented incapacitating history. The October 2017 examiner checked the 'No' box with regard to episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The December 2019 examiner also checked the 'No' box with regard to episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. Thus, for both periods in question there is no basis for the assignment of an increased rating based on being prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, radiculopathy of the lower extremities is addressed below. With regard to any bowel and bladder impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Thus, there is no basis for assignment of separate ratings for bowel or bladder impairment. Based on the foregoing, for the period prior to December 17, 2019 a disability rating in excess of 20 percent disability rating is warranted, and from December 17, 2019 a disability rating in excess of 40 percent is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In so finding, the Board notes that the newly revised rating criteria have also been considered from February 7, 2021 but have no effect here. Indeed, the general rating formula for diseases and injuries of the spine and for intervertebral disc syndrome were not substantively affected by the revisions. Radiculopathy, bilateral lower extremities A 20 percent rating is in effect for radiculopathy of the right lower extremity. A 10 percent rating is in effect for radiculopathy of the left lower extremity from July 6, 2010 to December 16, 2019, and a 20 percent rating is in effect from December 17, 2019. Radiculopathy of the right and left lower extremities is separately rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, Sciatic nerve. A 10 percent rating is for application for incomplete paralysis of the sciatic nerve when "mild." "Moderate" incomplete paralysis of the sciatic nerve warrants a 20 percent rating; "moderately severe" incomplete paralysis warrants a 40 percent rating; and, "severe, with marked muscular atrophy" incomplete paralysis warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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 level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Court held in Miller v. Shulkin that, "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20 percent disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376, 380 (2017). A June 2010 private treatment record reflects complaints of low back pain radiating into the back and side of the right leg reaching the heel and last three toes with increased pain and burning in the right foot with walking. On objective examination, it was indicated that he had tingling, numbness and weakness in legs. On neurological examination, there was allodynia on the bottom of the right foot and three last toes with diminished sensations in the right leg in L5 and S1 distribution. There was diminished right foot plantar flexion. It was indicated that his gait was antalgic, leaning on his left side. 08/05/2010 Medical Treatment Record-Non-Government Facility at 6-7. A July 2010 private treatment record reflects the Veteran's report that his right leg feels weaker than his left and there is a loss of sensation sometime on his foot and calf region. Id. at 9. The January 2011 C&P examination reflects complaints of radiating pain in sciatic type of distribution mostly to the right lower extremity. He had a combination of numbness and pain and feeling like hot needles are sticking in the right calf and going down to the toes, mostly to toes 3-5 of the right foot. More recently the left lower extremity had been affected in the same way to a lesser degree of severity. Just touching the lateral aspect of the right foot elicits pain, termed as allodynia, and he described pain as a shooting pain going down the right leg. Sensory examination showed there was allodynia to touch in the lateral aspect of the right foot and decreased sensation to primary modalities on the lateral aspect of the right foot and toes 3-5 and also some numbness ascending up the right leg. Straight leg raising elicited mild sciatic pain on the right. A January 2013 C&P examination reflects hypoactive (+1) deep tendon reflexes of the right ankle. Sensation to light touch was decreased with regard to the right foot/toes. Straight leg testing was positive with regard to the right, negative with regard to the left. He had moderate constant pain, moderate paresthesias/dysesthesias, and severe numbness with regard to the right lower extremity, and mild constant pain, mild paresthesias/dysesthesias, and moderate numbness with regard to the left lower extremity. The examiner characterized his right lower extremity radiculopathy as severe and his left lower extremity radiculopathy as moderate. An April 2015 C&P examination reflects mild constant pain, intermittent pain, paresthesias/dysesthesias, and numbness affecting both lower extremities. The examiner characterized his radiculopathy of both lower extremities as mild. An October 2017 C&P examination reflects mild intermittent pain, paresthesias/dysesthesias, and numbness affecting both lower extremities. The examiner characterized his radiculopathy of both lower extremities as mild. A December 2019 C&P examination reflects moderate constant pain, severe intermittent pain, and severe numbness without paresthesias/dysesthesias. The examiner characterized his radiculopathy of both lower extremities as moderate. Initially, the Board finds that based on the subjective complaints of the Veteran and the objective findings, from December 17, 2019 separate 40 percent ratings are warranted for the right and left lower extremities in contemplation of moderately severe symptomatology. The Board acknowledges that the C&P examination reports do not contain a 'moderately severe' box for the examiners to check based on an objective assessment. Based on the objective findings of severe intermittent pain and severe numbness with moderate constant pain, and prior findings of mild paresthesias/dysesthesias, the Board finds that the Veteran's radiculopathy of the bilateral lower extremities more nearly approximates separate 40 percent ratings. Higher ratings are not warranted for either extremity as marked muscular atrophy is not shown, nor has there been a showing of complete paralysis of either extremity. For the period prior to December 17, 2019, the Board finds that a 40 percent disability rating is also warranted for radiculopathy affecting the right lower extremity based on objective findings of moderate constant pain, moderate paresthesias/dysesthesias, and severe numbness, with allodynia. Again, the C&P examination reports do not contain a 'moderately severe' box for the examiners to check based on objective assessment. Based on the objective findings detailed in treatment records and examination reports and the Veteran's subjective complaints throughout the course of this appeal, the Board finds that the Veteran's radiculopathy of the right lower extremity more nearly approximates a 40 percent rating. A higher rating is not warranted as marked muscular atrophy is not shown, nor is complete paralysis of the right lower extremity shown. With regard to the left lower extremity, the Board finds that a 20 percent is warranted for moderate symptomatology based on subjective complaints and objective findings. By the Veteran's own admission documented in treatment records and examination reports, his left lower extremity is affected to a lesser degree than his right lower extremity. As detailed, for the period prior to January 2013 his left lower extremity symptomatology has been characterized as mild to moderate, until he underwent the C&P examination in December 2019. For the period prior to December 17, 2019, the objective findings do not reflect combinations of significant sensory changes and reflex or motor changes to warrant a finding of a moderately severe disability. Based on the subjective complaints of record and objective findings documented in examination reports and treatment records, the competent medical evidence weighs against a finding that radiculopathy of the left lower extremity is moderately severe in severity. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Service connection is in effect for degenerative disc disease, lumbar spine (20% 01/08/2010; 40% 12/17/2019); radiculopathy, right lower extremity (40% 01/08/2010); radiculopathy, left lower extremity (20% 01/08/2010; 40% 12/17/2019); left knee patellofemoral pain syndrome (10%); and, gastroesophageal reflux disease (0%). Thus, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) have been met from January 8, 2010. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Under 38 C.F.R. § 4.16 (a), a TDIU is warranted if the evidence shows that a claimant has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16 (a), 4.19. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Furthermore, marginal employment is not considered substantially gainful employment. Marginal employment may be held to exist, on a fact found basis, to include, but not limited to, employment in a "protected environment," such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (work in a "protected environment" will also be considered marginal and is not determined on the basis of salary). The Board recognizes that "protected environment" has not been expressly defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online) (2017). "Contingent" can mean "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons. In October 2011 and August 2017, the Veteran submitted VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability wherein he reported that he has not worked in a full-time capacity since December 23, 2009. From January 1997 to December 2009, he reported that he was self-employed by his own construction company. It is noted, however, that on his January 2018 claim for pension he reported that he was the owner of a construction company and his job ended in 2014. On his claim for Social Security Administration (SSA) disability benefits, the Veteran reported employment from 2013 through March 2015 for other construction companies. 08/23/2018 Medical Treatment Records-Furnished by SSA at 39, 66-72. Records from the Social Security Administration (SSA) reflect that he was awarded disability benefits effective July 17, 2015 due to a primary diagnosis of disorders of the back and a secondary diagnosis of affective/mood disorders. Such date corresponds to the date the Veteran asserted an inability to function and/or work. The April 2014 examiner opined that due to the Veteran's lumbar spine with associated radiculopathy he cannot sit or stand in one place for very long and cannot lift. The October 2017 examiner opined that due to the Veteran's lumbar spine with associated radiculopathy and left knee disabilities he has difficulty sitting, standing, walking, climbing stairs, and lifting which affects productivity and efficiency. The December 2019 examiner opined that the Veteran's lumbar spine disability affects his ability to work. Specifically, he cannot stand or sit for long periods, and he has to lie down for a good bit of the day. He cannot pick up items from the floor or below the waist. He cannot lean from side to side or twist his core. The examiner stated that these limitations would severely limit the Veteran's hours of work and scope of employment, as his work activities would be limited to sit down duty for short periods of time. The December 2019 examiner opined that the Veteran's left knee disability affects his ability to work due to a minimal ability to walk and balance which makes him unsuitable for safety sensitive positions. The Veteran finds it hard to sit for long periods of time which limits his ability to perform prolonged tasks and he has difficulty walking on uneven ground which impedes working in field settings and climbing stairs and ladders. Affording the Veteran the benefit of the doubt, the Board finds evidentiary support to conclude that the combined effects of his service-connected lumbar spine disability, associated bilateral radiculopathy of the lower extremities, and his left knee disability precludes substantially gainful employment for the period from July 17, 2015, which corresponds to the date reflected on his SSA application that he was unable to function and/or work. His symptomatology associated with his lumbar spine and left knee affects his ability to maintain gainful employment, as he is unable to consistently function in an industrial capacity with others due to his symptomology. The Board finds the Veteran's assertions to be competent and credible with regard to his reported lumbar spine and left knee symptomatology while he was still employed. Based on the opinions of the C&P examiners and the assertions of the Veteran, the Board finds that the evidence is in equipoise with regard to whether his service-connected disabilities preclude gainful employment. Thus, for the above reasons, entitlement to a TDIU is granted from July 17, 2015. REASONS FOR REMAND Left knee Service connection is in effect for left knee patellofemoral pain syndrome, rated 10 percent disabling pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5260. In December 2019, the Veteran underwent a C&P examination to assess the severity of his left knee disability. The examiner diagnosed knee strain, shin splints, and patellofemoral pain syndrome. The examiner reported flexion from 5 to 115 degrees and extension 115 to 5 degrees. The examiner checked the 'Slight' box with regard to lateral instability but then checked the 'No' box for joint instability. With regard to shin splints, the examiner stated that he has pain when on his feet on hard surfaces. In a November 2020 addendum opinion, the examiner stated that with regard to stability, the Veteran complained of muscle spasms and knee instability with chronic pain that occurs with mild exercise or while climbing up and down stairs. He was not exercising or climbing stairs during the examination. There was left knee crepitus noted. The instability was related to the limited range of motion and stiffness of the knee, not laxity of the joint. The Veteran is not able to compensate when walking on unstable or unlevel surfaces which places him at risk for falls. The Board notes that effective February 7, 2021, the criteria for Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5257 (recurrent subluxation or lateral instability) was revised. In light of the diagnoses and objective findings contained in the December 2019 C&P examination and the revised criteria, the Board should be afforded another examination to assess the severity of his left knee disability. TDIU For the period prior to July 17, 2015, entitlement to a TDIU is inextricably intertwined with the left knee issue being remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the severity of his left knee disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left knee should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner should comment on the period of time he has required treatment, to include whether it is less than or more than 12 consecutive months, and whether the shin splint disabilities have been unresponsive to either shoe orthotics or other conservative treatment, and whether the shin splint disabilities have been unresponsive to surgery. The examiner should comment on whether there is nonunion of the tibia and fibula, with loose motion, requiring a brace. The examiner should comment on the symptomatology associated with his left knee disability. The examiner is to provide a statement concerning how the left knee disability affects his functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of his left knee disability. The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.