Citation Nr: 21032189 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-47 416 DATE: May 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating higher than 10 percent for right knee patellofemoral syndrome (PFS) with calcific tendinitis is denied. Entitlement to a rating higher than 10 percent for left knee collateral ligament laxity is denied. Entitlement to a rating higher than 10 percent for lumbar intervertebral disc syndrome (IVDS) is denied. FINDINGS OF FACT 1. The Veteran did not engage in combat and there is no corroboration of any noncombat stressor. 2. The preponderance of the evidence demonstrates that the Veteran does not have limited right knee extension which more closely approximates extension limited to 15 degrees nor flexion which more closely approximates flexion limited to 30 degrees. 3. The Veteran has not had left knee laxity which more closely approximates laxity which is greater than mild, and he has never had surgery nor used any form of ambulatory aid. 4. The Veteran's lumbar IVDS has not more closely approximated thoracolumbar flexion of 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. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107(b); C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a rating higher than 10 percent for right knee PFS with calcific tendinitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024 5261. 3. The criteria for a rating higher than 10 percent for left knee collateral ligament laxity have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (effective prior to and after February 7, 2021). 4. The criteria for a rating higher than 10 percent for lumbar IVDS have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1982 to July 1982 and from January 1984 to April 2005. A February 2020 Board decision granted reopening of a claim for service connection for a left ankle disability but denied reopening of a claim for service connection for cold weather residuals of the lower extremities. Claims for service connection for traumatic brain injury (TBI) (also claimed as brain concussion) and service connection for a left ankle disability were remanded. Also, the claims now before the Board were remanded for further development. The February 2020 Board decision noted that the Veteran had requested to appear at a hearing before a member of the Board, but in July 2019 he withdrew the request for a Board hearing. Thus, the Board considered the hearing request withdrawn. Subsequently, an August 2020 rating decision granted service connection for TBI and service connection or degenerative arthritis of the left ankle as secondary to service-connected disabilities of the knees. Each was assigned an initial disability rating of 10%, all effective July 6, 2020. In January 2021 the Veteran's attorney filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) to the August 2010 rating decision and requested a hearing with a Veterans Law Judge. The modernized appellate review system, the Appeals Modernization Act (AMA), applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400. 19.2. In the AMA, appellate review by the Board is initiated by receipt of a VA Form 10182, Notice of Disagreement (NOD). 38 C.F.R. §§ 20.201, 20.202. The appellant's claim as to the issues now before the Board was adjudicated under the legacy appeals system and there is no assertion that he elected into the modernized review system. Accordingly, the appeal of the August 2020 rating decision has been docketed under the AMA procedural rules and will be the subject of a separate Board decision. Lastly, in part, the appeal was remanded in February 2020 for stressor development and VA rating examinations for compliance with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). As will be explained, this has been done so there has been substantial compliance with that remand. Service connection for an acquired psychiatric disorder, to include PTSD Here, the Veteran's relies upon alleged combat stressors, and some noncombat stressors, as the causation of his alleged psychiatric disability, which is specifically alleged to be PTSD. The Board finds that service connection for an acquired psychiatric disorder, including PTSD, is not warranted because the diagnoses of PTSD which have been rendered are predicated upon either unverified participation in combat or uncorroborated noncombat stressors. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110/1131/1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Reasonable doubt will be favorably resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When PTSD is claimed as a result of combat stressor(s), there must be a specific finding of fact of whether the veteran was engaged in combat and, if so, whether the claimed stressor(s) is related to combat. Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). "Where it is determined, through recognized military citations or other supportive evidence, that the veteran engaged in combat with the enemy and the claimed stressor(s) are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service'." Zarycki v. Brown, 6 Vet. App. 91, 198 (1993); 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); see also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d). Where it is determined from all the evidence that the veteran did not engage in combat with the enemy or is claiming stressors not related to combat, lay testimony alone is not enough to establish that the stressors actually occurred. Cohen v. Brown, 10 Vet. App. 128, 147. Rather, such testimony must be corroborated by 'credible supporting evidence' and must not be contradicted by service records. 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994); Zarycki, 6 Vet. App. 91, 98 (1993). The required inservice stressor corroboration need not be established by service records alone but may be obtained from other sources. Cohen, at 142 (citing M21-1, Part VI, ¶7.46(f) (Sept. 21, 1992). However, an opinion of a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor. Cohen, at 142, (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); and Doran v. Brown, 6 Vet. App. 283, 289 (1994). "PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify." Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (comparing the relative impact of the provisions of 38 C.F.R. § 3.304(f) and the competency of lay evidence as set forth in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007 and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir. 2006)). In this case, although service records show that the Veteran's military occupational specialty was an infantryman, and was also a drill instructor, they do not show that he served in a combat theater or actually participated in combat, and he was not given any awards, citations or decorations indicative of combat. Moreover, while the Veteran has at times stated that he participated in combat, he has also denied having participated in combat. For example, on VA examination in September 2014 for residuals of TBI it was reported that the Veteran had "served during Bosnia, Afghanistan (1997)" and he reported that he had participated in combat. However, while he may have reported having "served during" hostilities in Bosnia and Afghanistan, he did not actually report having service in Bosnia or Afghanistan. In fact, the service personnel records show that he served overseas in Hawaii, Germany, in the Sinai, and less than three kilometers from the Korean demilitarized zone. On the other hand, on VA examination of his knees in September 2014 he reported that he had not participated in combat and on VA examination of his hands in October 2007 it was reported that although he had served in the Army for years he had not been in combat. And, on VA scar examination in March 2016 the Veteran reported that he had not participated in combat activity. Repeated attempts were made to assist the Veteran in substantiating his alleged combat service and putative stressors. By letters dated October 17, 2016, and December 23, 2016, he was requested to provide specific details of the stressful incident(s) in service that resulted in PTSD. However, he did not respond. In February 2017 the RO made a formal finding of a lack of information required to corroborate stressor(s) associated with the claim for service connection for PTSD. After reviewing the service treatment records (STRs) and service personnel records it was found that information regarding stressors was insufficient to corroborate any PTSD stressors and insufficient for the purpose of forwarding the case to the appropriate authority to allow for a meaningful search of military records. By RO letter of March 5, 2020, the RO requested that he execute and return the needed authorization forms to obtain treatment at non-VA facilities, including Madigan Army Hospital. He was requested to provide information as to "the approximate times and locations where you saw dead bodies and burned bodies during active service." However, there was no response. In compliance with the Board remand, by two RO letters both dated April 8, 2020 the RO requested the Veteran to provide specific details of the stressful incident(s) in service that resulted in PTSD, and he was requested to provide the approximate dates of the treatment he received at Madigan Army Hospital on an enclosed form so that the RO could request those records from Madigan Army Hospital. Again, there was no response. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran has not cooperated in assisting VA to obtain information documenting his participation in combat or any noncombat stressors, or event records of the Madigan Army Medical Center which may not be of record. Moreover, because of his lack of cooperation, he was not provided a psychiatric examination to determine whether he now has an acquired psychiatric disorder related to military service. Next the Board addresses the lay and clinical evidence relative to psychiatric disability. As to this, in a medical history questionnaire in conjunction with a general medical examination in March 2003 at the Madigan Army Medical Center the Veteran reported having had recurrent episodes of extreme emotion for 8 months. However, having such episodes does not establish that a psychiatric disorder existed. Moreover, the Veteran is not competent to render a diagnosis of a psychiatric disorder because of his lack of medical expertise. "PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify." Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (comparing the relative impact of the provisions of 38 C.F.R. § 3.304(f) and the competency of lay evidence as set forth in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007 and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir. 2006)). Private clinical records of 2011 and 2012 show that in April 2012 the Veteran had some physical symptoms that seemed to be triggered by stress at his postservice work, i.e., he had been having issues as a teacher and was worried that the symptoms would lead to a heart attack, as he had had a few years ago. The assessment was an anxiety disorder, for which he was counseled. In May 2012 he was under a lot of stress at work, and was seen for anxiety and depression. The assessment was acute stress reaction and emotional disturbance. This evidence suggests that whatever problems he was having at that time were not related to his military service. Records of Madigan Army Medical Center [entered into the Veterans Benefits Management System (VBMS) on May 10, 2016] show that a psychological evaluation was conducted on April 1, 2016, in light of his VA claim for service connection for PTSD. It was reported that he had a significant military occupational trauma exposure across multiple missions and theaters of operation and while in garrison, enduring residual including chronic anxiety, excessive arousal and irritability, avoidance, hypervigilance, and emotional numbing. The incidents include finding one of his soldiers in a [Korean] DMZ dead from multiple lacerations; saving a soldier by breaking his fall when the soldier was attempting to commit suicide from a highline; having to lead soldiers out of an exceptionally difficult and dangerous situation while deployed to the Sinai; and participation in "SF" missions. It was reported that "the incidents described, while holding back tears, just scratched the surface of all that he was exposed to during his 24 years of service." A brief course of psychotherapy in 2013 was said to have been somewhat helpful. The diagnosis was "unspecified" PTSD; and continuing evaluation and treatment was recommended. However, the Board finds that even this diagnosis of "unspecified" PTSD is predicated upon either the Veteran's allegedly having participated in combat or upon uncorroborated stressors. Additionally, an April 2018 Disability Benefits Questionnaire by J. Atkinson, a psychiatrist/psychologist, reflects that the Veteran had not been diagnosed as having PTSD. In the past he had been a drill instructor. He had "Subthreshold PTSD." At one time he had been under stress in his postservice employment teaching "ROTC" at a high school. The Veteran reported that he had been seen at Madigan Army Hospital during his military service for an anxiety disorder, but ceased treatment when they no longer treated retired military personnel. He had had anxiety due to "dealing with death, my family, a lot in the service." He was not currently receiving treatment. He also had brain aneurysms which were inoperable and contributed to his current anxiety. The examiner explained that "PTSD symptoms were present but below the threshold for full PTSD. The proper diagnosis in such a case was "other specified trauma and stressor related disorder." It was reported that this was "[a]lso known as subthreshold PTSD or 'posttraumatic stress syndrome'." It was stated that "VA has noted that this also is disabling as full PTSD would be. His symptoms were at least as likely as not directly related to experiences involving death where he shot and killed men, women, and children, seeing people's heads blown off, piles of burned bodies, etc." It is clear that even this diagnosis was predicated upon either the Veteran's having participated in combat, which is not verified, or upon uncorroborated noncombat stressors. Also, as noted, the Veteran has not cooperated in the efforts to obtain any additional records from the Madigan Army Hospital during his military service. Accordingly, the Board finds that, because the evidence does not establish that the Veteran participated in combat and there is no corroboration of noncombat stressors, service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. Claims for increased ratings Disability evaluations are determined by considering the entire clinical history and evaluating the extent to which a service-connected disability(ies) adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is considered in all cases. Fenderson v. West, 12 Vet. App. 119, 126 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates those criteria; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Not all cases will show the criteria specified in applicable Diagnostic Codes but findings sufficiently characteristic to identify the disability and coordination of ratings with impairment of function is expected. 38 C.F.R. § 4.21. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of motion, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Entitlement to a rating higher than 10 percent for right knee PFS with calcific tendinitis The Veteran's right knee PFS with calcific tendinitis has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5024 provides for rating tenosynovitis as degenerative arthritis under Diagnostic Code 5003 which provides for ratings based on limitation of motion. Under Diagnostic Code 5261, a 10% rating is warranted for extension of the knee limited to 10 degrees; a 20% rating is warranted for extension of the knee limited to 15 degrees; a 30% rating is warranted for extension of the knee limited to 20 degrees; a 40 % for extension of the knee limited to 30 degrees, and a maximum 50% for extension of the knee limited to 45 degrees. Id. Under Diagnostic Code 5260, a 10% disability rating is warranted for flexion of the knee limited to 45 degrees; a 20% rating is warranted for flexion of the knee limited to 30 degrees; and a maximum 30% rating is warranted for flexion of the knee limited to 15 degrees. Id. On VA examination in September 2014 the Veteran complained of daily peripatellar right knee pain when traversing stairs, squatting, and sitting for over 30 minutes. He related that his pain level occasionally reached a 6 on a scale of 10 (6/10). He reported that flareups did not impact function of the knee. On examination he had full and painless right knee flexion and extension, which was unchanged after three repetitions of motion but he did have some functional loss due to pain after three repetitions of motion with respect to normal strength, speed, coordination and/or endurance. There was no tenderness or pain to palpation of the joint line. He had full strength in flexion and extension. The right knee ligaments were stable. He had never had surgery, medial tibial stress syndrome (shin splints) or a meniscal condition. He did not use any assistive device(s) as an ambulatory aid. The examiner commented that there were contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability during flareups or repeated use over time. The examiner opined that the impact of the condition on his ability to work was minimal unless he had to repeatedly squat down. On VA examination in March 2016 the Veteran's records were reviewed. He reported that his right knee disorder had worsened, and he now had daily pain of the knee particularly with movements, e.g., stairs, kneeling, squatting, getting out of a chair. He reported having flareups of right knee pain with use, which could be daily. On examination he had full but painful extension, and flexion was painless but limited to 120 degrees without additionally limited motion after three repetitions of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or of pain with weight-bearing but there was crepitus. The examination was not conducted during a flareup, and the examiner reported that it could not be stated whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups without resorting to mere speculation. He had full strength in flexion and extension and there was no muscle atrophy. He did not use any assistive device for ambulation. X-rays had confirmed the presence of calcific tendinitis. As to the impact on his ability to work it was opined that his knee disorders limited employability to sedentary occupations, and although he did not need to remain seated, he should avoid kneeling, squatting, ladders, working on his knees. On VA examination in July 2020 the Veteran reported that his right knee disorder caused a stabbing pain which he stated caused functional impairment as to limiting walking, kneeling, and squatting. On examination he had full and painless right knee extension, but flexion was painful and only to 135 degrees (a loss of 5 degrees of full flexion), on both active and passive motion. There was no additional loss of motion after three repetitions of motion. It was reported that pain significantly limited functional ability with repeated use over a period of time and with flareups, with extension being estimate as still being full but with flexion being estimated to be to only 121 degrees with repeated use over time and during flareups. With respect to "Correia" criteria there was objective evidence of pain when the right knee was used in non-weight bearing. There was mild pain to palpation of the patella due to PFS and calcific tendonitis. There was full strength in flexion and extension and no muscle atrophy. He had never had surgery, medial tibial stress syndrome (shin splints) or a meniscal condition. He did not use an assistive device, e.g., brace, cane, crutches, walker, or wheelchair, for ambulation. The functional impact as to his ability to work was that walking, squatting, and kneeling were limited. The current 10% rating encompasses painful motion and the impact of it on the Veteran's daily life and his ability to function in an occupational environment. He has reported that his right knee disability has increased in severity, but this does not necessarily mean that it has increased to such an extent as to warrant a higher rating. Specifically, he had full and painless flexion and extension on examination in 2014. By the time of the 2016 examination he had painful but full extension, and flexion, while painless, was limited to 120 degrees. The 2020 examination found full and painless extension but flexion, while painful, was to 135 degrees although it was estimated to be 121 degrees during flareups and with repeated use over time. However, even this is four times greater than the limitation of flexion to 30 degrees required for the next higher rating of 20%. The opinions of the examiners in 2016 and 2020 have been that the right knee disorder does limited the Veteran's ability to work in an activity that requires significant physical activity but not to such an extent as to affect his ability to engage in less strenuous employment. The Board finds these opinions to be well grounded in light of the absence of evidence of any impairment of gait and that fact that not only has he not required surgical intervention but that he had never used any assistive device for ambulation. Accordingly, the Board finds that the preponderance of the evidence establishes that the right knee disability is not of such severity as to more closely approximate the criteria for a rating greater than the current 10% rating in effect. Entitlement to a rating higher than 10 percent for left knee collateral ligament laxity Throughout the appeal period, the Veteran's left knee collateral ligament laxity has been rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee. This provided for a 10% disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20% rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and a 30% rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (in effect prior to February 7, 2021). However, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Effective February 7, 2021, Diagnostic Code 5257 was revised. Under the revised rating criteria a 10% rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, a 10% rating may be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provider for a brace, cane or walker. A 20% rating is assigned if there is one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical prescribed both a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, 20% may be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that required a prescription by a medical provider for one of the following: a brace, cane, or walker A 30% disability rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker). Alternatively, a 30% rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Note (1) to Diagnostic Code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to Diagnostic Code 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under Diagnostic Code 5258 a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20% rating, and under Diagnostic Code 5259 symptomatic residuals for removal of a semilunar cartilage warrants a 10% rating. On VA examination in September 2014 the Veteran complained of daily peripatellar left knee pain as well as occasional giving way of the knee when walking upstairs or inclines. At times the pain reached 6/10. He reported that flareups did not impact function of the knee. On examination he had full and painless left knee flexion and extension, which was unchanged after three repetitions of motion, but he did have some functional loss due to pain after three repetitions of motion with respect to normal strength, speed, coordination and/or endurance. There was no tenderness of pain to palpation of the joint line. He had full strength in flexion and extension. Testing of anterior and posterior ligament stability was normal but as to medial-lateral stability he had 1+ (0 5 millimeters) of instability. He had never had surgery, medial tibial stress syndrome (shin splints) or a meniscal condition. He did not use any assistive device(s) as an ambulatory aid. The examiner commented that there were contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability during flareups or repeated use over time. The examiner opined that the impact of the condition on his ability to work was minimal unless he had to repeatedly squat down. On VA examination in March 2016 the Veteran's records were reviewed. He denied having flareups of his left knee disability. On examination he had full but painful left knee flexion and extension, but the pain did not cause functional loss, and there was no pain on weight-bearing. There was no additional loss of motion after three repetitions of motion. He had full strength in the left knee and there was no muscle atrophy. There was no anterior, posterior, medial, or lateral instability of the left knee. He did not use any assistive device for ambulation. As to the impact on his ability to work it was opined that his knee disorders limited employability to sedentary occupations, and although he did not need to remain seated, he should avoid kneeling, squatting, ladders, working on his knees. On VA examination in July 2020 the Veteran reported that his left knee disorder caused a stabbing pain which he stated caused functional impairment as to limiting walking, kneeling, and squatting. Testing of ligament stability of the left knee was normal as to anterior, posterior, and medial stability. There was no objective evidence of pain with weight-bearing or on palpation of the joint or associated soft tissue. With respect to "Correia" criteria there was objective evidence of pain when the left knee was used in non-weight bearing, and there was no evidence of crepitus or pain in weight-bearing. There was full strength in flexion and extension and no muscle atrophy. He had never had surgery, medial tibial stress syndrome (shin splints) or a meniscal condition. He did not use an assistive device, e.g., brace, cane, crutches, walker or wheelchair, for ambulation. The functional impact as to his ability to work was that walking, squatting, and kneeling were limited. The current 10% rating for left knee laxity was assigned because mild laxity in one plane was found on VA examination in 2014, when he complained of occasional giving way of that knee. However, examinations in 2016 and 2020 found that he does not have any ligamentous laxity in any plane. Thus, the evidence shows that he has never had meniscal pathology, for the purpose of any rating under Diagnostic Codes 5258 and 5259, and has not continued to have ligamentous laxity or, under the revised criteria, persistent or recurrent instability. Moreover, not only has he not required surgical intervention, there is no evidence that he has ever needed or used any assistive device for ambulation, such as a brace, cane, crutches, or walker. Accordingly, the Board finds that the preponderance of the evidence establishes that the left knee disability is not of such severity as to more closely approximate the criteria for a rating greater than the current 10% rating in effect, under the criteria in effect both prior to and after February 7, 2021. Entitlement to a rating higher than 10 percent for lumbar IVDS Service connection for lumbar IVDS was granted by rating action of December 2014, which also granted service connection for left lower extremity (LLE) radiculopathy, and each was assigned an initial 10% rating from June 5, 2013. The Veteran's April 2015 Notice of Disagreement (NOD) initiated an appeal as to the rating for lumbar IVDS, but he did not appeal the initial 10% rating assigned for LLE radiculopathy. Following a February 2016 Supplemental Claim for Compensation filed by the Veteran's attorney, the LLE radiculopathy was increased to 20% by a May 2016 rating decision. Accordingly, the evaluation of the LLE radiculopathy is not a matter on appeal. See Chavis v. McDonough, No. 18-2928, slip op. at 15 (U.S. Vet.App. Apr. 16, 2021) (precedential panel decision) (holding that ratings for service-connected spinal radiculopathy may be issued as part of an appeal for a higher rating for the orthopedic component of a service-connected spinal disorder, even if an appeal for the neurologic component is not initiated by filing an NOD, if service connection for the radiculopathy is granted after an appeal is initiated as to the proper rating for the orthopedic component of a service-connected spinal disorder). The Veteran's lumbar IVDS is rated under the Formula for Rating IVDS Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine, whichever provides the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings based upon the length incapacitating episodes, which are periods of acute signs and symptoms which require bed rest prescribed by a physician and treatment by a physician. See Note 1. Here, as the Veteran has never been prescribed bedrest by a physician for incapacitating episodes, the rating must be made under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine the current 10% 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. The next higher rating of 20% 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% 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% rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating 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. On VA spinal examination in September 2014 the Veteran complained of near daily constant mid-line lumbar pain of 3-5/10, and occasionally reaching 7 8/10 one to two times monthly. He had pain on left rotation, flexion, and repetitive lifting. He reported having significant low back stiffness and pain in the morning. He did not report that flareups impacted function of his low back. On examination thoracolumbar flexion was to 70 degrees, with pain beginning at 65 degrees. Extension was full to 30 degrees and painless. Right lateral bending was full to 30 degrees with pain beginning at 25 degrees. Left lateral bending was full and painless to 30 degrees. Right rotation was full to 30 degrees with pain beginning at that point. Left rotation was to 25 degrees with pain beginning at that point. These ranges of motion were unchanged after three repetitions of motion. It was reported that he had functional impairment due to limited, weakened, and painful motion. He had localized tenderness in the mid-line at L4-5 but no guarding or muscle spasm. He had normal reflexes throughout, as well as strength in the hips, knees, and ankles, and no muscle atrophy. He did not use any assistive device as an ambulatory aid. The impact on his ability to work was difficulty with repetitive bending and repetitive lifting of over 10 to 15 lbs. but no impact as to sedentary work. The examiner commented that there were contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability during flareups or repeated use over time. On examination in March 2016 the Veteran's records were reviewed. He reported that his low back disorder had worsened and had constant back pain, which worsened with movements, positions, and use. He related having daily flareups with use. On examination thoracolumbar extension was limited to 20 degrees (normal being 30 degrees) but all other planes of motion were normal, with flexion to 90 degrees, right and left lateral bending to 30 degrees each, and right and left rotation also to 30 degrees each. The limited motion contributed to a functional loss by causing trouble bending and lifting. There was pain in flexion, extension, and left rotation which contributed to functional loss. There was localized tenderness to palpation but no evidence of pain with weight-bearing, guarding or muscle spasm. There was no additional loss of motion after three repetitions of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flareups. There was no loss of strength in the lower extremities and no muscle atrophy. Reflexes were normal. He had not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use an assistive device, e.g., brace, cane, crutches, walker, or wheelchair, for ambulation. As to an impact on his ability to work was that it limited him to sedentary occupations, and he should avoid heavy lifting. On examination in July 2020 the Veteran's records were reviewed. The Veteran reported that his low back condition had worsened, and he continued to have recurrent back pain. He related having flareups of sharp, stabbing low back pain, which caused functional impairment by limiting lifting and carrying. On examination both on active and passive motion he had pain in all planes of motions except flexion. Flexion was full to 90 degrees, but motion was limited in all other planes, with extension to 15 degrees, and lateral bending and rotation in each direction being to 25 degrees, for a total of 205 degrees of motion. There was mild tenderness to palpation of the lumbar paraspinal muscles, and pain on weight-bearing. There was no additional loss of motion after three repetitions of motion. Pain significantly limit functional ability with repeated use over a period of time and during flareups with flexion being to 90 degrees, extension to 13 degrees, and all other planes being to 22 degrees (for a total of 191 degrees). There was no guarding or muscle spasm. Strength and reflexes were normal in the lower extremities and there was no muscle atrophy. He had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use an assistive device, e.g., brace, cane, crutches, walker, or wheelchair, for ambulation. The examiner reported that the Veteran did not have IVDS; rather, his condition had improved, and degenerative disc disease of the lumbar spine was the proper diagnosis and more accurately represented the Veteran's current condition. The Board has considered the estimates by VA examiners as to the functional impairment of the low back disorder, including limiting him to nonstrenuous employment. However, the repeated examinations have not shown that the disability warrants an increased rating. For example, the 2014 examination found that he had painless flexion, with pain beginning at 65 degrees of flexion. The more recent examination in 2020 estimated that even after repeated use over time or during flareups flexion was to 90 degrees, and even the combined range of motion was to 191 degrees which is far more than the limitation of combined motion to not greater than 120 degrees required for the next higher rating of 20%. Moreover, there is no evidence of any guarding or muscle spasm, much less guarding or muscle spasm severe enough to cause an abnormal spinal contour and there is no evidence that the low back disorder has ever cause any abnormality or impairment of his gait. Further, he has never needed either a brace or cane as an ambulatory aid. Although the Veteran reported at the 2020 examination that his low back disorder had worsened, the examiner found that, to the contrary, the Veteran's condition had improved, such that he no longer had IVDS which warranted changing the diagnosis to degenerative disc disease. Accordingly, the Board finds that the preponderance of the evidence establishes that the lumbar spine disability is not of such severity as to more closely approximate the criteria for a rating greater than the current 10% rating in effect. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.