Citation Nr: 21031130 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-15 459A DATE: May 20, 2021 ORDER Prior to May 6, 2017, a disability rating in excess of 10 percent for limited flexion of the right knee is denied. Prior to May 6, 2017, a separate rating for limited extension of the right knee is denied. Prior to May 6, 2017, a separate rating for recurrent subluxation or lateral instability of the right knee is denied. Prior to May 6, 2017, a separate rating for limited extension of the left knee is denied. Prior to May 6, 2017, a separate rating for recurrent subluxation or lateral instability of the left knee is denied. Prior to August 13, 2019, a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. FINDINGS OF FACT 1. Prior to May 6, 2017, the preponderance of the evidence indicates that flexion of the right knee was not limited to 30 degrees or worse. 2. Prior to May 6, 2017, the preponderance of the evidence indicates that the Veteran's right knee disability was not manifested by limited extension. 3. Prior to May 6, 2017, the preponderance of the evidence indicates that the Veteran's right knee disability was not manifested by recurrent subluxation or lateral instability. 4. Prior to May 6, 2017, the preponderance of the evidence indicates that the Veteran's left knee disability was not manifested by limited extension. 5. Prior to May 6, 2017, the preponderance of the evidence indicates that the Veteran's left knee disability was not manifested by recurrent subluxation or lateral instability. 6. Prior to August 13, 2019, the Veteran's lumbar spine disability was not manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, or by a combined range of motion of less than 120 degrees. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and there were no incapacitating episodes of at least 2 but less than 4 weeks duration due to intervertebral disc syndrome. CONCLUSIONS OF LAW 1. Prior to May 6, 2017, the criteria for a disability rating in excess of 10 percent based on limited flexion were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. Prior to May 6, 2017, the criteria for a separate disability rating based on limited extension of the right knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. Prior to May 6, 2017, the criteria for a separate disability rating based on recurrent subluxation or lateral instability of the right knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. Prior to May 6, 2017, the criteria for a separate disability rating based on limited extension of the left knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. Prior to May 6, 2017, the criteria for a separate disability rating based on recurrent subluxation or lateral instability of the left knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257. 6. Prior to August 13, 2019, the criteria for a rating in excess of 10 percent degenerative arthritis of the lumbar spine were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to February 1983 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2014 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office. The electronic filing system contains several pages of medical records that were associated with the file by VA, rather than the Veteran, since the RO's last readjudication of the claims without a waiver of RO jurisdiction. See 38 U.S.C. § 7105(e)(1), (2) (2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). However, the records are not pertinent to the claims adjudicated below. As such, there is no risk of prejudice to the appellant from proceeding without the waiver. Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The regulations pertaining to rating musculoskeletal disabilities were recently revised, effective February 7, 2021. Generally, claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, if a revised version of the regulation is more favorable, implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. Here, as the appeal periods at issue are dated prior to February 7, 2021, the revised version of the regulations cannot be applied. 1. Prior to May 6, 2017, a disability rating in excess of 10 percent for limited flexion of the right knee is denied. 2. Prior to May 6, 2017, a separate rating for limited extension of the right knee is denied. 3. Prior to May 6, 2017, a separate rating for recurrent subluxation or lateral instability of the right knee is denied. 4. Prior to May 6, 2017, a separate rating for limited extension of the left knee is denied. 5. Prior to May 6, 2017, a separate rating for recurrent subluxation or lateral instability of the left knee is denied. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. VA's rating schedule provides for ratings of 10, 20, 30, 40, and 50 percent for limitation of extension of the knee to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The rating schedule also provides ratings of 10, 20, or 30 percent where there is limitation of flexion of the knee to 45, 30, or 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. For rating purposes, a normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability, is rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In a July 2012 rating decision, service connection was granted for the Veteran's right knee disability and a noncompensable rating was assigned. The rating for the right knee disability was increased to 10 percent in an August 2012 rating decision. In a November 2012 rating decision, service connection was granted for the Veteran's left knee disability and a 10 percent rating was assigned. In the March 2014 and June 2014 rating decisions on appeal, the 10 percent ratings for the right and left knee disabilities were continued. In February 2019, the Board remanded the claims for further development. In October 2019, the VA Regional Office awarded separate, 10 percent disability ratings for the right and left knees under DC 5257 for instability, effective August 13, 2019. This resulted in two separate disability ratings for the bilateral knees from that date, based on instability and limited flexion. Prior to August 13, 2019, the only disability ratings in effect were the 10 percent ratings based on limited flexion. In February 2020, the Board issued the following decisions pertaining to the right knee: (1) from May 6, 2017, to August 12, 2019, a higher 20 percent rating for the right knee disability based on limited flexion was granted, (2) from May 6, 2017, to August 12, 2019, a separate 20 percent rating for the right knee disability based on limited extension was awarded, and (3) from May 6, 2017, to August 12, 2019, a separate 20 percent rating for the right knee disability based on lateral instability was awarded. The Board additionally issued the following decisions pertaining to the left knee: (1) a rating in excess of 10 percent for the left knee disability based on limited flexion was denied; (2) from May 6, 2017, to August 12, 2019, a separate 30 percent rating for the left knee disability based on limited extension was awarded, and (3) from May 6, 2017, to August 12, 2019, a separate 20 percent rating for the left knee disability based on lateral instability was awarded. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the VA Regional Office implemented the Board's decision. In December 2020, the Court vacated various aspects of the February 2020 decision, and remanded the matters to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). Specifically, the parties vacated and remanded those parts of the Board's decision that denied the following: (1) a rating in excess of 10 percent, prior to May 6, 2017, for the right knee flexion, extension and instability; (2) a rating in excess of 10 percent, prior to May 6, 2017, for limitation of extension in the left knee; and (3) a rating in excess of 10 percent, prior to May 6, 2017, for left knee lateral instability. The parties found the Board provided an inadequate statement of reasons and bases in the February 2020 decision. Specifically, the parties determined, "at no point in its decision did the Board explain why it chose May 6, 2017 as the effective date for this award of benefits" (emphasis in original). Joint Motion, p. 3. The rules governing effective dates were discussed and the parties directed the Board, on remand, to explain why the May 6, 2017 date was chosen. On review of the February 2020 decision, the Board finds that the selection of the May 6, 2017 date was explained on page 13 in relation to effective date rules. Thus, in response to the inquiry posed by the Joint Motion, May 6, 2017 was selected as the effective date because it was the date on which entitlement to the separate ratings awarded by the Board arose. VA had not received evidence indicating the presence of the separate disabilities prior to May 6, 2017. As discussed by the Board, in an increased rating claim the effective date is generally the date of receipt of the claim, or the date entitlement arose, whichever is later. The Board found May 6, 2017 to be the date entitlement arose, and the later of the two dates. Nonetheless, construing the evidence in the light most favorable to the Veteran, the Board here considered the private medical records dated from 2015 and 2016, which were not received until May 6, 2017. However even when doing so, the preponderance of the evidence is against the claims as explained below. Further, the Joint Motion mischaracterized the actions taken by the Board. In its February 2020 decision, the Board did not deny ratings in excess of 10 percent for extension or instability of either knee prior to May 6, 2017. Rather, the Board awarded separate ratings based on limited extension and instability, effective May 6, 2017. Prior to May 6, 2017, service connection was not in effect at all for limited extension or instability of the knees, and no ratings were assigned. See, e.g., August 2020 codesheet (most recent codesheet). As such, in the decision below, the Board has adjudicated the matter the Veteran's entitlement to separate ratings for these disabilities prior to May 6, 2017, rather than the matter of his entitlement to ratings in excess of 10 percent. Turning to the evidence, on VA examination in May 2012, the Veteran denied having flare-ups of knee pain. On examination, right knee flexion was to 140 degrees or greater without pain, and extension was to 5 degrees. Left knee flexion was to 140 degrees or greater without pain, and extension was to normal to 0 degrees. The Veteran could perform repetitive-use testing with no additional loss of motion. Functional impairments included pain on movement and less movement than normal. Joint stability testing was conducted bilaterally with normal results. There was no history of recurrent patellar subluxation or dislocation. There were no meniscal conditions and no history of a meniscectomy. On VA examination in November 2012, the Veteran reported left knee pain after walking and with activities. He denied having flare-ups. On examination, right knee flexion was to 140 degrees or greater without pain, and extension was normal to 0 degrees without pain. Left knee flexion was to 125 degrees with pain beginning at 110 degrees, and extension was to 10 degrees. The Veteran could perform repetitive-use testing with no additional loss of motion. Functional impairments included pain on movement and less movement than normal. Joint stability testing was conducted bilaterally with normal results. There was no history of recurrent patellar subluxation or dislocation. There were no meniscal conditions and no history of a meniscectomy. In an April 2014 private medical record, the Veteran had a full range of motion of the left knee when seated and standing. Flexion was limited to 90 degrees when squatting. On VA examination in June 2014, the Veteran denied having flare-ups. He had difficulty doing tasks that involved standing for prolonged periods. On examination, right knee flexion was to 100 degrees with pain beginning at 100 degrees, and extension was normal to 0 degrees. Left knee flexion was to 110 degrees with pain beginning at 110 degrees, and extension was normal to 0 degrees. The Veteran could perform repetitive-use testing with no additional loss of motion. Functional impairments included pain on movement, less movement than normal, and disturbance of locomotion. Joint stability testing was conducted bilaterally with normal results. There was no history of recurrent patellar subluxation or dislocation. There were no meniscal conditions. The Veteran reported having undergone arthroscopic surgery on the right knee in 1983 without residual signs or symptoms. In a September 2014 private medical record, the Veteran's range of motion was from 0 to 120 degrees bilaterally. There was slight medial laxity, although the knee affected by this was not identified. In a December 2014 private medical record, the Veteran had a full range of motion of the bilateral knees without pain. There was no instability in either knee. In a May 2016 private Impairment Questionnaire, the Veteran reported chronic residuals of severely painful motion or weakness following his 1983 right knee procedure. He had pain beginning at 30 degrees of flexion in the right knee, at 15 degrees of extension in the right knee, and at 20 degrees of extension in the left knee. He was found to have moderate lateral instability bilaterally. There was dislocated semilunar cartilage with frequent episodes of locking pain and effusion in the right knee. In evaluating the right knee disability first, the Board finds the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to May 6, 2017 based on limited flexion. As noted, the next higher rating contemplates flexion limited to 30 degrees. Flexion was to 140 degrees without pain in May 2012 and November 2012, 100 degrees with pain beginning at 100 degrees in June 2014, 120 degrees in September 2014, and 140 degrees in December 2014. While pain began at 30 degrees in May 2016, this is an isolated finding and the preponderance of the evidence is against a higher rating. The Board additionally finds the preponderance of the evidence is against the assignment of a separate rating prior to May 6, 2017 based on limited extension of the right knee. VA examiners in November 2012 and June 2014 found normal extension without pain, as did private providers in September 2014 and December 2014. To the extent the May 2016 provider found pain beginning at 15 degrees, this is an isolated finding and the preponderance of the evidence is against the assignment of a separate rating. As for the left knee, the Board finds the preponderance of the evidence is against the assignment of a separate rating prior to May 6, 2017 based on limited extension. VA examiners in May 2012 and June 2014, found normal extension without pain, as did private providers in April 2014, September 2014, and December 2014. The findings noted in November 2012 and May 2016 are inconsistent with the majority of the evidence. The preponderance of the evidence is against the assignment of a separate rating. The Board also finds insufficient evidence to support a finding that the Veteran's pain was so disabling as to actually or effectively limit knee motion to such an extent as to warrant the assignment of any higher or separate rating for either knee under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261. VA examiners in May 2012 and November 2012, and the December 2014 provider, found no objective evidence of painful motion in either knee. The Veteran could consistently perform repetitive-use testing with three repetitions and no additional loss of motion. He denied having flare-ups on every VA examination in the pertinent appeal period. Thus, considering the Veteran's pain and functional loss, his disabilities did not approximate the criteria required for higher or separate ratings based on limited flexion or extension of either knee. With regard to subluxation or instability, the Board additionally finds the preponderance of the evidence is against the assignment of a separate rating prior to May 6, 2017 for either knee. On each VA examination conducted during the pertinent appeal period, the examiner conducted stability testing with normal results bilaterally. Every VA examiner found no history of recurrent patellar subluxation or dislocation. The December 2014 provider additionally found no instability in either knee. To the extent the September 2014 provider found slight medial laxity, the impacted knee was not identified. To the extent the May 2016 provider found moderate lateral instability bilaterally, no actual joint stability testing was conducted in connection with the assessment; the findings were based on the Veteran's subjective reports alone. The Board has considered the Veteran's statements, but finds the objective evidence, in the form of joint stability testing, more probative than the lay statements. The Board considered all other diagnostic codes pertaining to the knee. As ankylosis was not shown on any examination, a rating under DC 5256 is not warranted. Because the file largely contains no indication of a meniscal condition, residuals of knee surgery, malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5258, 5259, 5262, and 5263 are not applicable. To the extent the May 2016 private medical record raises the application of DCs 5258 and 5259, this is an isolated finding and the preponderance of the evidence is against the assignment of any separate ratings in this regard. In reaching these decisions, the Board considered the doctrine of reasonable doubt. 6. Prior to August 13, 2019, a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks, and a 60 percent rating is warranted if the total duration is at least six weeks. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension, bilateral lateral flexion, and bilateral lateral rotation is zero to 30 degrees. These rating criteria are applied with and 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. Ankylosis is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1). In a July 2012 rating decision, service connection was granted for the Veteran's lumbar spine disability and a noncompensable rating was assigned. The noncompensable rating was continued in an August 2012 rating decision. In the March 2014 rating decision on appeal, a higher rating of 10 percent was granted for the disability. In February 2019, the Board remanded the claim for further development. In October 2019, the VA Regional Office awarded a higher rating of 20 percent for the lumbar spine disability, effective August 13, 2019. In February 2020, the Board denied a rating higher than 10 percent for lumbar spine disability prior to August 13, 2019, as well as a rating higher than 20 percent thereafter. The Board additionally denied higher ratings for the service-connected neurological abnormalities associated with the lumbar spine disability. The Veteran appealed the Board's decision to the Court. In December 2020, the Court vacated the Board's decision to the extent that a rating in excess of 10 percent for the lumbar spine disability prior to August 13, 2019 was denied, and remanded the matter to the Board for development consistent with the parties' Joint Motion. The Board's decision was vacated due to its failure to discuss potentially favorable evidence. Specifically, on VA examination in May 2012, the Veteran reported having an antalgic gait, which the examiner noted was caused by his right knee and low back conditions. The Board will thus discuss this finding in the analysis below. Turning to the evidence, on VA examination in May 2012, the Veteran reported constant radiating low back pain on bending or prolonged sitting. He denied having flare-ups. On examination, flexion was to 90 degrees or greater with pain beginning at 70 degrees. The combined range of motion was greater than 120 degrees. He could perform repetitive-use testing with no additional loss of motion. Functional loss included less movement than normal, pain on movement, and disturbance of locomotion. The examiner found no guarding or muscle spasm of the thoracolumbar spine. In the portion of the examination report pertaining to other orthopedic disabilities, the Veteran reported having an antalgic gait which his primary care provider had related to his right knee and lumbar spine disabilities. There was no radiculopathy or other neurological abnormalities associated with the disability. There had been no incapacitating episodes due to IVDS over the past 12 months. On VA examination in February 2014, the Veteran reported constant radiating low back pain and pressure. He denied having flare-ups. On examination, flexion was to 80 degrees or greater with pain beginning at 75 degrees. The combined range of motion was greater than 120 degrees. He could not perform repetitive-use testing. Functional loss due to back pain included less movement than normal, excess fatigability, pain on movement, and disturbance of locomotion. The examiner found there was no muscle spasm of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour. Similarly, there was no guarding of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour. There was no radiculopathy or other neurological abnormalities associated with the disability. He did not have IVDS of the thoracolumbar spine. In a September 2014 private medical record, the Veteran reported pain at 90 degrees of flexion of the back. In a December 2014 private treatment record, the spinal contour was normal. In a February 2015 private medical record, the thoracolumbar active range of motion was normal. In December 2015, a VA examiner who evaluated the Veteran for his service-connected peripheral neuropathy of the bilateral lower extremities as secondary to the lumbar spine disability clarified that the Veteran's prior neurological examinations were normal. In an February 2016 addendum opinion, the February 2014 VA examiner stated the Veteran had subjective, intermittent, mild bilateral radiculopathy secondary to the lumbar strain. In a May 2016 private Impairment Questionnaire, the Veteran had pain in flexion between 31 and 60 degrees. There was a positive straight leg test on the right but the examiner found the Veteran did not have radiculopathy secondary to the lumbar spine disability. Additionally, in a number of private treatment records dated between 2012 and 2016, the Veteran was noted to have a normal gait. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the lumbar spine disability prior to August 13, 2019. As noted, a 20 percent evaluation is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran's combined range of motion was consistently greater than 120 degrees. On VA examinations in May 2012 and February 2014, and in private medical records of September 2014 and February 2015 flexion was, at worst, 70 degrees considering pain. To the extent the May 2016 provider found pain in flexion between 31 and 60 degrees, this is an isolated finding and the preponderance of the evidence is against a higher rating. As for muscle spasms and guarding, both the May 2012 and the February 2014 VA examiner explicitly found the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Further, his spinal contour was noted to be normal in December 2014 and multiple private treatment records indicated he had a normal gait. To address the concerns of the parties in the Joint Motion, the May 2012 examiner himself made no finding of an abnormal gait due to the lumbar spine disability; he merely recited what the Veteran reported his private physician had said. Moreover, there is no indication that any abnormal gait was due to muscle spasms or guarding of the thoracolumbar spine; VA examiners specifically determined the Veteran had neither. As such, the evidence does not support the assignment of a rating in excess of 10 percent due to limited motion of the spine. The Board also finds insufficient evidence to support a finding that the Veteran's low back pain was so disabling as to actually or effectively limit lumbar spine motion to such an extent as to warrant the assignment of a higher rating. The Veteran denied having flare-ups to both the May 2012 and February 2014 VA examiners. On VA examination in May 2012, he could perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. While the Veteran clearly experienced pain and functional loss, the Board cannot find that it approximated the level of severity as described by a 20 percent rating. The Board thus finds that pain and functional loss have already been considered in assigning the current rating. As for consideration of a higher rating on the basis of "incapacitating episodes," the May 2012 VA examiner found there had been no incapacitating episodes, and the February 2014 VA examiner found the Veteran did not have IVDS of the spine. The Veteran's treatment records also do not indicate that he was prescribed bed rest by a physician due to the service-connected lumbar spine disability. As such, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for consideration of a separate rating on the basis of neurological manifestations of the disability, the Veteran has been in receipt of separate disability ratings for neuropathy of the bilateral lower extremities throughout the pertinent appeal period, and the matters of entitlement to higher ratings for these disabilities are not currently before the Board. The record does not indicate the presence of any other neurological abnormalities related to the service-connected lumbar spine disability during the pertinent time period. For all the foregoing reasons, the Board finds the preponderance of the evidence is against a rating higher than 10 percent for the lumbar spine disability prior to August 13, 2019, as well as any additional separate rating based on neurological abnormalities during this time period. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.