Citation Nr: 21032238 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-61 820 DATE: May 26, 2021 ORDER The application to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder (claimed as PTSD, anxiety, and depression) is granted. A rating in excess of 10 percent for bilateral hearing loss is denied. A rating in excess of 10 percent for residuals of a left ankle fracture is denied. From June 26, 2016, a 20 percent rating for left knee scars is granted, but a disability rating in excess of 20 percent is denied. A rating in excess of 10 percent for residuals of a right knee strain is denied. A rating in excess of 10 percent for left knee degenerative joint disease is denied. From June 26, 2016, a separate 10 percent rating, but no higher, for right knee instability is granted. From June 26, 2016, a separate 10 percent rating, but no higher, for left knee instability is granted. From June 26, 2016, a 40 percent rating, but no higher, for degenerative changes of the thoracic spine and lumbar spondylosis is granted. From June 26, 2016, a 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. From June 26, 2016, a 20 percent rating, but no higher, for left lower extremity radiculopathy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU), to include consideration of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), is remanded. FINDINGS OF FACT 1. In an unappealed October 2013 rating decision, the RO denied service connection for PTSD. 2. Evidence received since the October 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran is reasonably shown to have been diagnosed with PTSD and depression as result of a stressor event involving fear of hostile enemy activity during the appeal period. 4. For the rating period on appeal, audiometric testing has revealed, at worst, a Level IV hearing loss in the right ear and Level V hearing loss in the left ear. 5. The Veteran's left ankle was manifested by no worse than moderate limitation of motion, and there was no evidence of functional loss rising to the level described by criteria for the next higher rating. 6. From June 28, 2016, the Veteran had four surgical scars on the left knee which have existed since 2001; symptoms associated with the scars have been described as pain with a sharp, pulling sensation. 7. The Veteran's right knee disability was manifested by normal extension, with flexion, at worst, to 135 degrees, without recurrent subluxations, or any meniscal conditions, but with slight instability. 8. The Veteran's left knee disability was manifested by normal extension, with flexion, at worst, to 120 degrees, without recurrent subluxations, or any meniscal conditions, but with slight instability. 9. The Veteran's thoracolumbar spine disability, to include during flare-ups, more nearly approximates forward flexion limited to 30 degrees, but without unfavorable ankylosis of the entire thoracolumbar spine. 10. The Veteran had bilateral, moderate, lower extremity radiculopathy throughout the rating period on appeal; there is no indication that his radiculopathy more nearly approximates moderately severe incomplete paralysis of the sciatic nerve roots. CONCLUSIONS OF LAW 1. The October 2013 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the last denial of service connection for PTSD; the application to reopen the claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for a rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2020). 5. The criteria for a rating in excess of 10 percent for residuals of a left ankle fracture disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2020). 6. From June 28, 2016, the criteria for a 20 percent disability rating for left knee scars have been met, but the criteria for a disability rating in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7804, 7805. 7. The criteria for a rating in excess of 10 percent for residuals of a right knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260. 8. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260. 9. From June 28, 2016, the criteria for a separate 10 percent rating for right knee instability are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 10. From June 28, 2016, the criteria for a separate 10 percent rating for left knee instability are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 11. From June 28, 2016, the criteria for a 40 percent rating, but no higher, for degenerative changes of the thoracic spine and lumbar spondylosis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 12. From June 28, 2016, the criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 13. From June 28, 2016, the criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to August 2007. He died in November 2020; the appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans Appeals (Board) on appeal from August 2015, August 2017, and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). An October 2017 rating decision increased the rating for left knee scars from 0 to 20 percent effective August 23, 2017. Because higher ratings are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Evidence in the record suggests that the Veteran has been diagnosed with multiple acquired psychiatric conditions; therefore, the Board will broadly construe the claim for service connection for depression and anxiety as a claim for service connection for an acquired psychiatric disability, to include depressive disorder and anxiety. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In a November 2020 decision, the Board dismissed the claims due to the death of the Veteran. The appellant has since been substituted to complete the processing of the deceased Veteran's appeal. See 38 U.S.C. § 5121A. Therefore, the claims are properly before the Board for appellate consideration. Reopening Service Connection for PTSDLaws and Analysis The RO initially denied service connection for PTSD in an October 2013 rating decision because there was no medical evidence that a diagnosis for PTSD was present. The Veteran was notified of the rating decision but did not appeal the decision. As such, the October 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the October 2013 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010; Justus v. Principi, 3 Vet. App. 510, 513 (1992) (credibility of the evidence is to be presumed). The evidence received subsequent to the October 2013 rating decision includes, in pertinent part, a March 2017 private psychological report from Dr. O'Halloran. This report confirmed that the Veteran had a PTSD diagnosis pursuant to the DSM V criteria. Further, Dr. O'Halloran opined that the Veteran's PTSD was related to his in-service experiences. The Board finds that this evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue at hand. The evidence discussed above is new, as such evidence was not of record prior to the issuance of the October 2013 rating decision. Moreover, the evidence is material, as it relates to the unestablished element of a current diagnosis and a nexus to service. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for PTSD. 38 C.F.R. § 3.156 (a). As such, the Veteran's claim is reopened. Service Connection for Psychiatric Disorder--Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., a diagnosis under DSM]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304 (f). If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence the claimed in-service stressor. For purposes of this paragraph, "fear of hostile" military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's psychiatric claim was denied by the RO based on a finding that the Veteran did not meet the necessary criteria for PTSD. In this regard, a July 2015 VA psychiatric examination found that the Veteran did not have PTSD. The examiner also stated that the Veteran's reported stressor was not related to the Veteran's fear of in-service hostile military or terrorist activity because he was not in combat. Notably, however, VA had previously found that the Veteran served in Bosnia and that his "combat stressor was conceded." See October 2013 rating decision. Despite this negative opinion by the July 2015 VA examiner, the Board finds that the weight of the evidence of record demonstrates that the Veteran has PTSD and depression diagnoses in accordance with 38 C.F.R. § 4.125 (a), which have also been found to be related to in-service stressor events. VA treatment records show a diagnosis of PTSD and reasonably indicate that the diagnosis relates to the Veteran's reported stressors in service. For example, an October 2012 VA mental health note indicated that the Veteran served two, twelve-month tours in Bosnia during "operation joint endeavor." It was noted that the Veteran was exposed to "multiple near-death experiences, dead bodies and bodies about to explode." The Veteran's DD Form 214 also indicates that the Veteran served in a "designated imminent danger pay area." During a September 2013 VA mental health note, provided by a VA clinical psychologist, it was noted that the Veteran witnessed dead bodies in Bosnia and experienced threat of his own life during an explosion while he was sleeping. This event was noted to involve a "sense of horror and helplessness." After performing a psychological evaluation, to include a mental status examination, the VA psychologist diagnosed the Veteran with AXIS I: "PTSD; depression NOS." Although the Veteran's DD Form 214 does not specifically indicate that the Veteran served in combat, his reported incidents are reasonably consistent with the circumstances of the Veteran's service as he did serve in Bosnia in a designated imminent danger pay area and also served as an infantryman. Also, the reported incidents clearly involve fear of imminent hostile enemy activity. The VA psychologist in September 2013 specifically indicated that the Veteran met the criteria for PTSD due to the reported in-service incidents. Also weighing in favor of the Veteran's claim is a March 2017 private psychological report from Dr. O'Halloran. Again, the Veteran reported witnessing destruction, cannon fire, dead bodies, and the smell of rotting corpses. He reported concerns of the ever-present dangers when travelling on convoy. After performing psychological testing and conducting a thorough interview with the Veteran it was noted that the Veteran observed multiple deaths to others with concurrent feelings of helplessness and horror. Dr. O'Halloran diagnosed the Veteran with PTSD. For these reasons, and resolving reasonable doubt in the Veteran's favor, because PTSD and depression due to fear of hostile enemy activity is shown to have been diagnosed by a VA mental health practitioner at some point during the appeal period, service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, is warranted. 38 C.F.R. § 3.102, 3.303, 3.304; McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability Ratings-General Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). It is the intention to recognize actual 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Bilateral Hearing Loss Disability When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (b). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id. The Board has reviewed all the evidence of record, including the Veteran's lay statements, a VA audiological examination, and the Veteran's statements. For the reasons discussed below, the Board finds that the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met for the entire rating period on appeal. The Veteran submitted a private audiogram dated in March 2017. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 60 65 60 LEFT 50 65 60 60 The March 2017 private audiological evaluation did not provide numerical values for the word discrimination speech results and whether the test was performed using the Maryland CNC. Therefore, this audiology evaluation cannot be used for VA rating purposes. On the authorized audiological evaluation in June 2017, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 50 60 55 LEFT 55 55 60 55 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 72 percent in the left ear. The June 2017 audiometric findings, applied to Table VI, yield a numeric designation of (IV) in the right ear (55 decibel puretone threshold average, and 82 percent speech discrimination) and a numeric designation of (V) in the left ear (56 decibel puretone threshold average, and 72 percent speech discrimination). The numeric designation for the right ear (IV) along with the numeric designation for the left ear (V), entered into Table VII, produce a 10 percent evaluation for hearing impairment. The result of the June 2017 examination reveals that the Veteran has exceptional pattern of hearing impairment in both ears. Specifically, puretone thresholds were 55 decibels or more at each of the four specified frequencies. As such, the Roman numeral designation from Table VIA would yield a numeric designation of (III) in the right ear (55 decibel puretone threshold average) and numeric designation of (IV) in the left ear (56 decibel puretone threshold average). The numeric designation for the right ear (III) along with the numeric designation for the left ear (IV), entered into Table VII, produce a 10 percent evaluation for hearing impairment. Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against a disability rating in excess of 10 percent for any period contemplated by this appeal. The United States Court of Appeals for Veterans Claims (Court) discussed extraschedular consideration in the context of bilateral hearing loss: [T]he Court holds that the [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, includingfor purposes of example onlyear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects." Id. at 371. While recognizing any functional effects and limitations associated with his hearing loss, to include difficulty hearing the television and difficulty with his hearing in general, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing. For these reasons, the Board finds that, for the entire rating period on appeal, a rating in excess of 10 percent for bilateral hearing loss is not warranted. Left Ankle Disability The Veteran is currently in receipt of a 10 percent rating for his left ankle disability under Diagnostic Code 5271. These criteria assess limitation of motion of the ankle as either moderate, warranting a 10 percent rating, or marked, warranting a 20 percent rating. Higher ratings for the ankle are warranted only when the ankle is ankylosed. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II The words "moderate" and "marked," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran was afforded a VA ankle examination in May 2017. During the evaluation, the Veteran reported that he had constant pain in the left ankle (6-7 out of 10, with 10 being the most severe pain). His ankle pain limited his ambulation, which resulted in difficulty standing and sitting for prolonged periods of time. During the physical examination of both ankles, range of motion testing on of the left ankle was measured as 35 degrees in plantar flexion and 15 degrees in dorsiflexion. The examiner noted that range of motion during repetitive use testing was unchanged. Muscle strength was reduced to 4/5, but the examiner noted that the decrease in strength was due to radiculopathy of the lower extremities. There was also no ankylosis in the left ankle joint. The examiner indicated that there was no ankle instability or dislocation. The Veteran occasionally used crutches and constantly used a cane to assist with ambulation. The examiner further indicated that there was no objective evidence of pain on weight bearing and non-weight bearing. VA treatment records show complaints of pain in the left ankle, but symptoms were associated with a gout flare-up. See e. g., October 2018 VA treatment record. On review, the Board finds that the criteria for a rating higher than 10 percent for the left ankle disability are not met. Range of motion of the left ankle was essentially normal at the time of the 2017 VA examination, where it was noted that the Veteran had a maximum loss of 10 degrees in plantar flexion and a 5 degree loss in dorsiflexion (normal range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees). These results cannot be described as marked limitation of motion in the ankle, nor are they descriptive of ankylosis of the joint as motion is possible. The Board considered whether a higher rating is warranted based on any additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, at 204-7. In this case however, the Board finds that the Veteran's pain and limitation of motion are adequately contemplated by the currently assigned 10 percent rating. There was no evidence of any additional limitation of motion during repetitive use testing and there was no instability in the ankle joint. Moreover, although the Veteran was found to have some decreased strength in the ankle and needed a cane and crutches to assist with ambulation, some of his symptom have been relate to other disabilities, including radiculopathy and gout. Other diagnostic codes relating to the foot and ankle are not applicable, as the record does not reflect any evidence of astragalectomy or malunion of any of the bones in the ankle. The Veteran, therefore, would not benefit from rating under different diagnostic criteria. For these reasons, the Board finds that a rating higher than 10 percent for the service-connected left ankle disability is not warranted. Left Knee Scars Disability Service connection is in effect for left knee scars, rated 0 (zero) percent disabling, effective June 28, 2016, and 20 percent disabling, effective August 23, 2017. During the pendency of this appeal, the rating criteria for evaluating scar conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. The amendments, in pertinent part, revised Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones rather than by extremity. There were no changes to Diagnostic Codes 7800, 7804, or 7805, which are the same both prior to, and after, August 13, 2018. The Veteran's symptoms will be evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran will be applied. See 83 Fed. Reg. 32592, 32593 (July 13, 2018) ("[F]or this final rule, VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied."). Under the rating criteria in effect prior to the August 13, 2018 changes, a minimum compensable rating (10 percent) for scars not of the head, face, or neck was warranted if (1) the scar was deep and nonlinear and of at least 39 square centimeters in area; (2) the scar was superficial and nonlinear and of at least 929 square centimeters; or (3) the scar was unstable or painful. Under the new rating criteria, effective August 13, 2018, a minimum compensable rating (10 percent) for scars not of the head, face, or neck is warranted if (1) the scar is associated with underlying soft tissue damage and of at least 39 square centimeters in area; (2) the scar is not associated with underlying soft tissue damage and of at least 929 square centimeters in area; or (3) the scar is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Under DC 7804, one or two scars that are unstable or painful are rated 10 percent disabling, three or four scars that are unstable or painful are 20 percent disabling, and five or more scars that are unstable or painful are rated 30 percent disabling. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note 1. If one or more scars are both unstable and painful, the Board must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note 2. Under DC 7805, any disabling effects of scars not considered under DCs 7800-7804 should be considered under the appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The medical evidence of record shows that the Veteran underwent left knee arthroscopic surgery in 2001. He has been found to have a total of four scars as a result of the surgery, including one main scar and three arthroscopic scars. See August 2017 VA scars examination report. The Veteran underwent a VA knee examination in July 2017 and a VA scar examination in August 2017; both examinations address the Veteran's left knee scars; however, the Board finds the August 2017 examination to be more probative. In this regard, the July 2017 VA examiner indicated that the Veteran only had one scar on the left knee, which was essentially asymptomatic. However, in the August 2017 VA scar examination report, it was noted that the Veteran had 4 scars. When describing the pain associated with the scars, the examiner noted "sharp, pullingall scars." The August 2017 evaluation appears to be a more thorough description of the Veteran's scars as the examiner identified the correct number of scars and provided a more detailed description of the Veteran's symptoms. As such, and resolving reasonable doubt in the Veteran's favor, the Board finds that, given that the Veteran's scars have existed since his surgery in 2001, the currently assigned 20 percent rating for 4 symptomatic scars should be assigned from June 28, 2016, the date corresponding to when service connection was established. A higher rating under DC 7804 is not warranted as the Veteran, does not have any additional service-connected painful or unstable scars. Right and Left Knee Disabilities The Veteran is currently in receipt of 10 percent ratings for the right and left knee disabilities due to painful limitation of motion. The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Upon review of the evidence of record, the Board finds that ratings in excess of 10 percent for painful limitation of motion for both the right and left knee are not warranted. A review of the medical evidence of record shows that the Veteran's bilateral knee flexion has been limited to no worse than 135 degrees with normal extension in the right knee, and 120 degrees in flexion with normal extension in the left knee. See May 2017 VA examination. Moreover, the May 2017 VA examiner specifically considered the Veteran's limitation of motion following repetitive use testing, which did not show any decrease in motion in either knee. The Board acknowledges that a March 2017 examination report from Dr. Yocom indicated that the Veteran experienced some pain when flexing the knees (starting at 30 degrees); however, full range of motion findings for either knee was not documented. There is no other evidence of record indicating that the Veteran's knee flexion was limited to 30 degrees at any other time. Therefore, the Board finds this finding to be an outlier and not reflective of the manifestation of the Veteran's disability. The Board concludes that the Veteran's right and left knee disabilities do not meet or more nearly approximate the criteria for a rating in excess of 10 percent for the entire rating period on appeal due to painful limitation of motion. The Veteran has never demonstrated the functional equivalent of flexion limited to 30 degrees in order to warrant a higher disability rating under DC 5260. Throughout the appeal period, he maintained flexion above 120 degrees bilaterally, to include after repetitive use testing. As such, ratings in excess of 10 percent under Diagnostic Code 5260 are not warranted. Moreover, the VA and private examination reports listed above showed normal range of motion testing in extension throughout the rating period. A separate rating for limitation of extension is not warranted as the Veteran does not have compensable limitation of extension in the right or left knee. The Board recognizes the Veteran's past reports of continued bilateral knee pain as explained in the VA examination reports discussed above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking or standing). However, even considering additional limitation of motion or function of the knees due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the knee disabilities more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examination discussed above showed no significant decreased range of motion in the right or left knee. There is no evidence of any knee ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fibula in the right or left knee to support higher or separate ratings under DCs 5256, 5258, or 5262. Next, the Board finds that, affording the Veteran the benefit of the doubt, his right and left knee instability warrants separate 10 percent ratings, but no higher, for the entire rating period on appeal. Although stability testing during the VA knee examination noted above found no objective instability in either knee, the Veteran has reported that his knees give out. See e. g., June 2019 VA treatment note (indicating left knee instability); see also March 2017 report from Dr. Yocom (noting that the Veteran reported that his knees "give out"); see also May 2017 VA examination report (where the examiner indicated that the Veteran had instability of station in the left knee and used a knee brace). Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported bilaterally knee instability, the Board finds that separate 10 percent ratings are warranted for slight lateral instability of the right and left knee. Next, the Board finds that the Veteran's left knee instability is not more accurately described as moderate under the earlier diagnostic code effective prior to February 7, 2021. The Board acknowledges that a March 2017 examination report from Dr. Yocom indicated that the Veteran had "marked lateral instability" in both knees. However, this is inconsistent with the other medical evidence of record. Dr. Yocom did not indicate which kind of stability testing was conducted. There is no other evidence of record indicating that the Veteran's knee instability is more than slight. See also March 2007 examination report (noting that anterior and posterior cruciate ligaments stability tests were within normal limits). Therefore, the Board finds this finding by Dr. Yocom is an outlier and not reflective of the manifestation of the Veteran's disability. In sum, the Board finds that knee instability that causes functional impairment but is undetectable (as noted during the May 2017 VA examination report) is best characterized as slight in nature. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under the current diagnostic code. Effective February 7, 2021, Diagnostic Code 527 provides for a 20 percent rating for a knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 20 percent rating may also be assigned for patellar instability when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. In this case, the Board finds that ratings in excess of 10 percent for instability of the right and left knee disabilities are not warranted under the amended rating criteria effective February 7, 2021. To the extent that the VA examination reports reflect that the Veteran used a brace as a normal mode of locomotion for the left knee, they did not reflect that he had been diagnosed with any sprain, incomplete ligament tear, repaired complete ligament tear causing instability of the left knee. The evidence also does not indicate that the Veteran used a brace on his right knee as required for a higher 20 percent rating under the amended rating criteria effective February 7, 2021. Moreover, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair has not been shown for either knee. Accordingly, the Board finds that separate 10 percent ratings, but no higher, for right and left knee instability are warranted. Lumbar Spine Disability Prior to his death, the Veteran was in receipt of a 10 percent rating for degenerative changes of the thoracic spine and lumbar spondylosis. The Veteran's lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. Id. at Note 2. 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, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. The evidence of record during the increased rating period on appeal includes a May 2017 VA spine examination. At that time, the Veteran reported that his back pain had worsened since his last examination. The Veteran complained of low and mid back pain that radiated to both legs. He also reported numbness, tingling, and bilateral leg weakness. During flare-ups, the Veteran indicated that his back pain increased in intensity and he had to lay in bed, use crutches, and had increased irritability. The examiner indicated that range of motion testing could not be conducted as the Veteran was experiencing a flare-up of his back disability. The pain was noted to impact the "entire back" and was found to be "moderate severe." There was pain with weight bearing and muscle spasms and guarding were noted, although they did not result in an abnormal gait or abnormal spinal contour. Straight leg test was negative, but the examiner specifically indicated that the Veteran had "moderate" incomplete paralysis of the sciatic nerve roots bilaterally. No ankylosis or other neurological abnormalities were noted. The Veteran was not found to have IVDS. The examiner also indicated that the Veteran used a brace, crutches, and a cane to assist with stability due to lumbar spondylosis. The Veteran also submitted a private examination from Dr. Yocom in March 2017. At that time, it was noted that the Veteran's back pain was now constant in varying degrees and intensified with standing, sitting, and walking. Upon range motion testing, flexion was limited to 20 degrees. There was fixation of 75 percent or more of the lumbosacral joint with moderate hypertonicity of the superficial and deep musculature at that level. Upon review of all the evidence of record, the Board finds that the criteria for a 40 percent rating are more nearly approximated for the Veteran's thoracolumbar spine disability, based on evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less. As discussed above, and in consideration of the Veteran's pain and limitation of function during flare-ups, the Veteran's chronic low back has resulted in severe limitation of motion limited to 20 degrees. The May 2017 VA examiner also noted that range of motion could not be conducted due to pain associated with the Veteran's flare-up. The 2017 VA examiner also indicated that the Veteran used a brace, crutches, and a cane to assist with stability due to lumbar spondylosis. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating for thoracolumbar spine disability is warranted for the entire rating period on appeal. A rating in excess of 40 percent is not warranted for any period contemplated by this appeal. Although Dr. Yocom indicated that the Veteran had fixation of 75 percent of the lumbosacral joint, unfavorable ankylosis of the entire thoracolumbar spine was not shown. Moreover, the medical evidence of record does not indicate that the Veteran has IVDS and he has not been shown to have physician-prescribed bed rest. As such, a disability rating in excess of 40 percent is not warranted. Radiculopathy of the Lower Extremities Radiculopathy of the right and left lower extremities are separately rated 10 percent disabling, pursuant to 38 C.F.R. § 4.124A, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The evidence of record clearly demonstrates that the Veteran has had bilateral radiculopathy symptoms throughout the rating period on appeal. During the May 2017 VA examination report, the Veteran complained of low and mid back pain that radiated to both legs. He also reported numbness, tingling, and bilateral leg weakness. The examiner specifically indicated that the Veteran had "moderate" incomplete paralysis of the sciatic nerve roots bilaterally VA treatment records confirm complaints of radiating pain. Based on the May 2017 VA examiner's findings, the Board finds that the 20 percent ratings assigned for moderate radiculopathy of the right and left lower extremity are warranted for the appeal period. There is no evidence showing that the Veteran's radiculopathy symptoms more nearly approximate moderately severe incomplete paralysis of the sciatic nerve roots. As such, ratings in excess of 20 percent are not warranted for any period on appeal. REASONS FOR REMAND TDIU and SMC The issue of entitlement to a TDIU, to include consideration of SMC pursuant to 38 U.S.C. § 1114 (s), must be deferred pending implementation of the awards granted herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claim is deferred. The matter is REMANDED for the following action: 1. The AOJ should implement the awards granted herein. 2. Then, readjudicate the claim of entitlement to a TDIU, include consideration of SMC pursuant to 38 U.S.C. § 1114 (s), based on the entirety of the evidence, to include consideration of all of his service-connected disabilities. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.