Citation Nr: 21039715 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 09-29 517 DATE: July 1, 2021 ORDER A 40 percent rating for the period on appeal from June 10, 2007 to February 28, 2017 is granted for multilevel degenerative disc disease. Entitlement to a rating in excess of 40 percent for multilevel degenerative disc disease is denied. A 20 percent rating for femoral nerve radiculopathy, left lower extremity, is granted for the period on appeal from June 10, 2007 to February 28, 2017. Entitlement to a rating in excess of 20 percent for femoral nerve radiculopathy, left lower extremity is denied. A 20 percent rating for femoral nerve radiculopathy, right lower extremity, is granted for the period on appeal from June 10, 2007 to February 28, 2017. Entitlement to a rating in excess of 20 percent for femoral nerve radiculopathy, right lower extremity is denied. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy, right lower extremity, is denied. A 20 percent rating and no higher for sciatic nerve radiculopathy, left lower extremity, is granted. Entitlement to a rating in excess of 10 percent for right knee degenerative changes status post arthroscopy with chondroplasty and synovectomy is denied. Entitlement to a rating in excess of 10 percent for left knee degenerative changes is denied. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to February 28, 2017 is remanded. FINDINGS OF FACT 1. From June 10, 2007 to February 28, 2017, the Veteran's multilevel degenerative disc disease was manifested by forward flexion of the thoracolumbar spine functionally limited to 30 degrees or less on repeated use and there were no incapacitating episodes of IVDS. 2. At no time during the period on appeal has the Veteran's multilevel degenerative disc disease been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, there have been no incapacitating episodes of IVDS and there is no evidence to suggest the functional equivalent of ankylosis. 3. From June 10, 2007 to February 28, 2017, the Veteran's femoral nerve radiculopathy, left lower extremity was manifested by moderate incomplete paralysis of the anterior crural (femoral) nerve. 4. At no time during the period on appeal has the Veteran's femoral nerve radiculopathy, left lower extremity been manifested by or more nearly approximated severe incomplete paralysis or complete paralysis of the anterior crural (femoral) nerve. 5. From June 10, 2007 to February 28, 2017, the Veteran's femoral nerve radiculopathy, right lower extremity was manifested by moderate incomplete paralysis of the anterior crural (femoral) nerve. 6. At no time during the period on appeal has the Veteran's femoral nerve radiculopathy, right lower extremity been manifested by or more nearly approximate severe incomplete paralysis or complete paralysis of the anterior crural (femoral) nerve. 7. Right lower extremity radiculopathy is not manifested by nor does it more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. 8. Left lower extremity radiculopathy is manifested by moderate but no higher degree of incomplete paralysis of the sciatic nerve. 9. Right knee degenerative changes status post arthroscopy with chondroplasty and synovectomy is manifested by painful motion with flexion to 80 degrees. 10. Left knee degenerative changes are manifested by painful motion with flexion to 80 degrees. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for the Veteran's multilevel degenerative disc disease have been met from June 10, 2007 to February 28, 2017; a rating in excess of 40 percent have not been met or approximated at any time. 38 U.S.C. § 1155; 38 C.F.R. Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a 20 percent rating for femoral nerve radiculopathy, left lower extremity have been met from June 10, 2007 to February 28, 2017; a rating in excess of 20 percent have not been met or approximated at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8526. 3. The criteria for a 20 percent rating for femoral nerve radiculopathy, right lower extremity have been met from June 10, 2007 to February 28, 2017; a rating in excess of 20 percent have not been met or approximated at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8526. 4. The criteria for a rating in excess of 20 percent for sciatic nerve radiculopathy, right lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. 5. The criteria for a rating of 20 percent but no higher, for sciatic nerve radiculopathy, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. 6. The criteria for a disability rating in excess of 10 percent for osteoarthritis right knee degenerative changes status post arthroscopy with chondroplasty and synovectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. 7. The criteria for a disability rating in excess of 10 percent for left knee degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1980 to August 1989. In an April 2018 decision, the Board remanded the issues of entitlement to a rating in excess of 10 percent for right knee degenerative changes status post arthroscopy with chondroplasty and synovectomy; entitlement to a rating in excess of 10 percent for left knee degenerative changes; and TDIU. TDIU was granted effective from February 28, 2017, and will be addressed as to the period prior to that in the Remand. The 2018 remand was for a medical records search and lower extremity/knee examination. The other issues in this appeal, increased ratings for multilevel degenerative disc disease and related radiculopathies, were most recently remanded in an August 2019 Board decision to allow the Veteran to identify additional evidence and for issuance of a supplemental statement of the case (SSOC). The appeal has been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 favorable to the claimant, when rendering a decision on appeal. See 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran urges that all of his disabilities are more disabling than currently rated. 1. Entitlement to a 40 percent rating for the period on appeal from June 10, 2007 to February 28, 2017 for multilevel degenerative disc disease (DDD) is granted; a rating in excess of 40 percent is denied. Service connection was granted for the back disability (DDD) in a January 2018 rating decision, and staged ratings were assigned. Service connection and staged ratings were also awarded for related right and left lower extremity radiculopathy of the femoral nerves. Service connection for the related right and left lower extremity sciatic radiculopathy was awarded in a September 2018 rating decision. The back disability is rated under DC 5242 (degenerative arthritis of the spine) pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. Although there is DDD, there are no incapacitating episodes of IVDS shown on the January 2018 VA spine examination nor in the remaining medical record and the Veteran has urged that a higher rating is in order based on limited functional ability to bend with flare ups and repeated use, not based on incapacitating episodes as defined in the rating schedule. Specifically, incapacitating episodes are defined in Note 1 of the regulation as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The instant ratings are thus based on limited motion according to the general schedule for the spine, as this results in the higher evaluation. See January 2018 rating decision reflecting the 10 percent rating has been based on painful motion from June 10, 2007 (date of claim) to March 11, 2013, a 20 percent rating has been assigned from that date for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and a 40 percent rating has been assigned from February 28, 2017 for forward flexion of the thoracolumbar spine 30 degrees or less. According to the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation 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, Diagnostic Codes 5240, 5243 (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). VA regulations define normal range of motion of the thoracolumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Initially, the Board notes that there are no associated objective neurological abnormalities not already rated at any time throughout the period on appeal. For the following reasons, a 40 percent rating is warranted for the entire period on appeal, to include from June 10, 2007 to February 28, 2017, as the manifestations more nearly approximate forward flexion functionally limited to 30 degrees or less. However, a rating in excess of 40 percent is not shown or approximated at any time relevant to the appeal, as there is no showing of unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, and again there have been no incapacitating episodes of IVDS. Nor is there any suggestion in the record of the functional equivalent of ankylosis as discussed in Chavis v. McDonough, No. 18-2928, slip op. (U.S. Vet. App. Apr. 16, 2021). As to the period on appeal prior to February 28, 2017, we do note the examination record is largely not compliant with requirements of 38 C.F.R. § 4.59, or related cases of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), with regard to joint testing and the assessment of functional loss during flare-ups. Here, we note that the February 2017 and January 2018 examination do adequately discuss the functional impact of the low back disorder and note the Veteran's limitations in his forward flexion with pain and repetitive use over time and during flare-ups. We find his assertions throughout the appeal to be consistent with the findings on these examinations as to functional limited flexion at all times. He has repeatedly referenced restrictions with bending that are consistent with forward flexion limited to 30 degrees or less. During the February 2017 examination, the examiner noted reports of daily low back pain that persists throughout the waking hours. The examiner noted that a 2015 pain consult documented severe symptoms. Approximately twice per week, he could not get out of bed because of severe back pain. At that examination, forward flexion was initially limited to 25 degrees, reduced on repetitive use and flare ups. Lumbar flexion was avoided by the Veteran, and guarding and muscle spasm were noted. Functionally, his knee and back conditions markedly limited motility to less than 50 feet of walking, with standing limited to less than 30 minutes. In terms of how long this severity of back limitations had existed, we note that the examiner discussed the Veteran's back problem as having been present since 5 or 6 years after service. 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. 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. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). See DeLuca. Findings sufficient to assess these factors are noted in the exams dated in February 2017 and January 2018. For the period prior to February 28, 2017, the Veteran described his pain of the thoracolumbar spine as noted above, and the functional impact described is consistent with forward flexion limited to 30 degrees with repetitive use and during flare-ups. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Visible behavior of the claimant on motion consistent with a 40 percent rating has been observed in the medial record. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. Findings related to these factors have been consistent with a 40 percent rating for the entire period on appeal. In sum, as to the period prior to February 28, 2017, specifically from June 10, 2007, the record reflects a disorder that perhaps waxes and wanes, but the overall level is consistent with a 40 percent rating based on functionally limited forward flexion. The February 2017 VA examination reflects that the criteria for a 40 percent rating are clearly met. However, he had no ankylosis or noted neurological abnormalities that are not already rated and on appeal. There is evidence of pain when the spine is weight bearing. The January 2018 examination shows passive range of motion testing was not medically appropriate and there was no pain with non-weight bearing. The treatment record for the entire period on appeal is not inconsistent with the 2017 VA examiner's estimate of limited forward flexion. We also note that the symptoms and manifestations described throughout the appeal are consistent with the findings on the 2017 examination. We conclude that functionally the Veteran has been limited to forward flexion of the thoracolumbar spine to 30 degrees at all times during the appeal period. However, the criteria for a higher rating are not met or approximated, as there is no unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Such was noted as not present in the 2017 or 2018 examination report and the treatment records are not inconsistent with this finding. Also, nothing suggests the functional equivalent of ankylosis. The Board is again mindful of the Veteran's assertions as to pain and that, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). However, the appellant is in receipt of the maximum evaluation for limitation of motion for this time period. In fact, the higher evaluation would be consistent with no appreciable motion; further discussion would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). It is undisputed that the treatment records, as well as his presence at the 2017 and 2018 examinations, reflect that he retains range of motion and does not demonstrate no appreciable motion. Moreover, the General Rating Formula for the spine is used to rate spine disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected. His complaints of pain and limited motion are consistent with his 40 percent rating. Accordingly, a 40 percent rating adequately represents any functional impairment attributable to the disability throughout the appeal. See 38 C.F.R. §§ 4.41, 4.10. The preponderance of the evidence is against a rating in excess of 40 percent. Hart v. Mansfield, 21 Vet. App. 505 (2007). We note that he has been found disabled from work by the Social Security Administration due to the combined effects of multiple disorders, including his back and his knees as well as wrist conditions since 2009. But in the context of these increased ratings claims, we are assessing the functional impact of that disorder and the SSA decision as to disability is not persuasive, though we have reviewed the medical evidence and find it consistent with this rating and all of the ratings in this decision. While we note that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, these changes would not result in any higher ratings for this disability. The relevant criteria, the General Rating Formula for Diseases and Injuries of the Spine remained substantively unchanged with regard to the specific disability in this case. 2. A 20 percent rating for femoral nerve radiculopathy, left lower extremity, is granted for the period on appeal from June 10, 2007 to February 28, 2017; a rating in excess of 20 percent is denied. 3. A 20 percent rating for femoral nerve radiculopathy, right lower extremity, is granted for the period on appeal from June 10, 2007 to February 28, 2017; a rating in excess of 20 percent is denied. 4. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy, right lower extremity, is denied. 5. Entitlement to a 20 percent rating and no higher for sciatic nerve radiculopathy, left lower extremity, is granted. As noted in the DDD section of this decision, service connection for related right and left lower extremity radiculopathy of the femoral nerves (DC 8526) was granted in the January 2018 rating decision, with a 10 percent rating assigned from June 10, 2007 with a 20 percent rating assigned from February 28, 2017, for each lower extremity. Service connection for the related right and left lower extremity sciatic radiculopathies (DC 8520) were awarded in the September 2018 rating decision, with a 20 percent rating assigned for the right leg and a 10 percent rating assigned for the left leg. Each of these two lower extremity femoral nerve radiculopathies is rated 10 percent prior to February 28, 2017 and 20 percent as of that date based on mild and then moderate incomplete paralysis of the anterior crural (femoral) nerve under DC 8526, Diseases of the Peripheral Nerves. 38 C.F.R. § 4.124a. Both lower extremity sciatic nerve radiculopathies are rated based on incomplete paralysis of the sciatic nerve under DC 8520 from June 10, 2007, with the left leg being rated 10 percent based on mild incomplete paralysis and the right leg being rate 20 percent based on moderate incomplete paralysis. 38 C.F.R. § 4.124a. Under DC 8526, a 40 percent rating, will be assigned where there is complete paralysis of the anterior crural nerve (femoral), where there is paralysis of quadriceps extensor muscles. A 30 percent rating is warranted where there is severe incomplete paralysis of the femoral nerve. A 20 percent rating is warranted for moderate incomplete paralysis. 38 C.F.R. § 4.124a. Under DC 8520, an 80 percent rating, will be assigned where there is complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The Board finds for the following reasons that moderate incomplete paralysis and no higher of the femoral nerve is shown or approximated for both lower extremities at all times to include the period from June 10, 2007 to February 28, 2017, thus a rating of 20 percent for both lower extremities is warranted from June 10, 2007 rather than just from February 28, 2017. However, because not more than moderate incomplete paralysis of the femoral nerve is shown or approximated for either lower extremity, a rating in excess of 20 percent for either lower extremity is not warranted at any time under DC 8526. As to the period prior to February 28, 2017, specifically from June 10, 2007, the record reflects these disorders perhaps wax and wane, but the overall level is consistent with a 20 percent rating unde DC 8526. As to sciatic radiculopathy, for the following reasons, moderate but no higher incomplete sciatic paralysis of the left lower extremity is shown throughout the appeal period, and thus a 20 percent rating is warranted. However, as not more than moderate incomplete sciatic paralysis of either lower extremity is shown or approximated, a higher rating is not warranted for either lower extremity under DC 8520. First, as to the period prior to February 28, 2017 with regard to femoral nerve radiculopathy, we note that the Veteran has described, and the record has documented, a level of incomplete paralysis which the Board finds at least as likely as not to be moderate. We find no appreciable worsening on February 28, 2017, the date upon which the VA peripheral nerves examination documented moderate incomplete paralysis which was the basis for the 20 percent rating under DC 8526. In this regard, we also note that the VA and non-VA treatment records show that the condition was of relatively stable severity throughout the appeal period. While an earlier VA examination in 2013 does indeed indicate mild incomplete paralysis, we noted that the Veteran's complaints throughout the appeal period have been consistent with his at the February 2017 examination which resulted in the moderate findings. Under the circumstances, we find that a 20 percent rating under DC 8526 is warranted for each the left and right lower extremity from June 10, 2007. However, we find that the preponderance of the evidence is against a rating in excess of 20 percent under DC 8526 at any time throughout the appeal period. Specifically, none of the VA examinations nor the VA or non-VA treatment records has indicated there is severe incomplete or complete paralysis of the anterior crural (femoral) nerve. Here, the February 2017 examination reflects no more than moderate incomplete femoral paralysis of the left or right lower extremity. Indeed, a subsequent VA examination in April 2019 reflects less severe incomplete paralysis. The record is devoid of suggestion of complete femoral nerve paralysis. However, his consistent complaints and notations in the treatment record persuade the Board that the level of incomplete paralysis of the femoral nerve bilaterally remains moderate, but no higher. As to the sciatic nerve paralysis, the evidence is in equipoise as to whether there is moderate incomplete paralysis in the left lower extremity. See, e.g., February 2017 and April 2019 VA peripheral nerves examinations. Accordingly, we find that a 20 percent rating is warranted throughout the appeal period, as the Veteran's complaints as to the sciatic nerve have been constant. We cannot conclude that the condition worsened at any particular time throughout the appeal period when the totality of the record is considered. Accordingly, a 20 percent rating is warranted under DC 8520 for the left lower extremity. However, more than moderate incomplete sciatic nerve paralysis is not shown or approximated at any time. Here, we note that the February 2017 and April 2019 examinations both reflect moderate left and right incomplete sciatic nerve paralysis. Treatment records do not suggest a higher degree of paralysis. There is no marked muscular atrophy, nor is there any indication of complete sciatic nerve paralysis. Thus, the preponderance of the evidence is against a rating in excess of 20 percent for either lower extremity based on sciatic nerve radiculopathy. 6. Entitlement to a rating in excess of 10 percent for right knee degenerative changes status post arthroscopy with chondroplasty and synovectomy is denied. 7. Entitlement to a rating in excess of 10 percent for left knee degenerative changes is denied. From June 10, 2007, each knee is rated 10 percent under DCs 5003, representing degenerative arthritis, and the Board notes that also relevant is DC 5260, for limitation of flexion of the leg under the Schedule of Ratings musculoskeletal system, with consideration of painful motion,. 38 C.F.R. §§ 4.59, 4.71a. The Veteran seeks a higher rating for each knee. Again, the claims were remanded by the Board in large part to obtain VA examination to assess manifestations of the knee disorders. The VA examination was performed in April 2019. A January 2018 knee examination also includes ranges of motion and is compliant with Correia. The examination record, particularly with consideration of these two examinations, is thus thorough and includes all data required to rate the knee issues. It is considered wholly consistent with the treatment record as to degree of disability throughout the rating period. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 September 17, 2004). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. Each knee is rated 10 percent disabling under DC 5260 consistent with 38 C.F.R. § 4.59, providing for a compensable rating for painful motion that does not meet the criteria for a minimum rating based on limitation of motion under DCs 5260 or 5261. The current evaluation for each knee contemplates pain on motion and would be consistent with limitation of flexion to 45 degrees. To warrant a higher evaluation for either knee, the disorder must approximate the functional equivalent of limitation of flexion to 30 degrees. 38 C.F.R. § 4.7. Separate evaluations may be assigned for compensable limitation of extension, instability, subluxation or meniscus impairment. As discussed below, the preponderance of the evidence is against a higher rating for the right or left knee disability. At the outset, we find that the right and left knee are both manifested by range of motion with flexion to not less than 80 degrees and extension to 0, even with repeated use over time, as documented in the January 2018 VA examination report. There is painful motion. On this examination, which is consistent with the rest of the medical record, there is no compensable limitation of extension, instability, subluxation or meniscus impairment on the left. Meniscus impairment on the right, with history of surgery in 2005, is noted to result in the DJD which is the basis for the 10 percent rating based on painful flexion. It was noted the Veteran used a walker constantly. The diagnosis was bilateral degenerative arthritis. Also noted was MRI in 2015 showing myxoid degenerative changes of the menisci without definite acute tear. Notes on flare-ups included that the Veteran described constant pain without much fluctuation, spasticity in the lower extremities, muscular weakness and lock of the skin sensation (feet and lower extremities below the knees) This however was considered related to his peripheral neuropathy of unknown etiology that effects his ability to walk. Combined with radiculopathy he was noted to experience muscular weakness effecting his range of motion of the knees and ankles. No further clarification or opinion could be given without speculation. It was felt he should see a neurologist to address neurological issues to include Parkinson's disease which was suspected back in 2015. He was advised to go back to a neurologist for definite diagnosis and treatment for his neurological condition. In April 2018, the Board had observed that there was ambiguity in the aforementioned January 2018 VA examination report as to whether there are occasional incapacitating exacerbations in one or both knees to allow for a higher rating under DC 5003. In the April 2019 examination, the neurological examiner explained that there was lower extremity disability due to both 1.) degenerative joint disease of both knees, causing knee pain and decreased range of motion of the knees; and 2.) lumbar radiculopathy causing pain and decreased sensation. Although his record also includes diagnoses of Parkinson's disease and idiopathic neuropathy, these conditions were noted to not cause obvious disability. The examiner concluded that the knee conditions did not cause occasional incapacitating exacerbations. The rationale was: On interview today, the veteran does not describe flareups of his knee and back conditions that cause incapacition or other problems. Rather, his condition is "always the same". For example, he can always walk to the restroom, and denies using a urinal. This examining physician reviewed the record and examined the Veteran. The opinion is uncontroverted by other medical evidence, and clarifies that there are no neurological manifestations or incapacitating episodes of the knee disabilities. It is the most probative evidence as to whether there are neurological manifestations or occasional incapacitating episodes due to the knee disabilities. We find that the preponderance of the evidence is against so finding. Thus, a rating in excess of 10 percent is not warranted for either knee on such basis. Clearly, a rating in excess of 10 percent is not met or approximated based ranges of motion as flexion remains well in excess of that required for a higher rating and extension remains normal. See, e.g., 2018 VA knees examination. Also, while there is meniscal history of arthroscopy on the right, there was no dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, so he does not meet or approximate the criteria for a 20 percent rating under DC 5258. Additionally, removal of semilunar cartilage, symptomatic, to warrant a separate 10 percent rating under DC 5259, is not present. There is no credible evidence of lateral instability or recurrent subluxation either, relevant to DC 5257. There was no instability on the examination. There is no ankylosis relevant to DC 5256. Pain was noted on exam but did not result in/cause functional loss that would support a rating higher than that already assigned based on painful motion. Lack of mobility, weakness, fatigue, lack of coordination and lack of endurances resulted in the current manifestations supporting the 10 percent rating bilaterally consistent with 38 C.F.R. §§ 4.40, 4.45, 4.59. He reported he uses walker regularly; there are multiple disabilities that appear to factor into this use. There was evidence of pain on passive range of motion testing of the knees as well as on non-weight bearing testing of the knees. These are factors contributing to the current 10 percent ratings The Veteran does not meet the criteria for a higher rating based on any objective criteria in the schedule for either knee. Here, we find that the observations of skilled examiners are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment. To the extent there is an assertion of incapacitating episodes, such is less credible than the medical opinion in the record. While we note again that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, these changes do not result in any higher or separate ratings for the knee disabilities. To the extent that some of the criteria for the Knee and the Leg ratings have changed, the manifestations present and discussed below do not support higher or additional ratings under any criteria. There remains no basis for an increased rating as there is no instability as established by the most probative evidence, the VA examinations. Thus, there is no patellofemoral complex with recurrent instability (with or without history of surgical repair) nor is there sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability. In conclusion, for the reasons set forth above, for either the right or left knee disability, a rating in excess of 10 percent is denied. REASONS FOR REMAND TDIU prior to February 28, 2017 is remanded. This matter is remanded for appropriate action in conjunction with the assignment of the ratings awarded herein. While we note that the Veteran had indeed asked for higher level review of this issue subsequent the most recent SSOC, the attorney also requested that the legacy appeal remain active. We do note that a HLR decision denied the benefit in March 2021. At a minimum, clarification is required. Any additional development being undertaken at the RO level should be considered in the readjudication of this legacy appeal. The matters are REMANDED for the following action: Conduct any additional development deemed appropriate in view of the award of benefits in this decision with regard to the claim for TDIU prior to February 28, 2017. Then, readjudicate the issue of TDIU. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.