Citation Nr: 21041596 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-40 953 DATE: July 9, 2021 ORDER Prior to January 20, 2016, entitlement to an initial rating in excess of 10 percent, for degenerative disc disease of the lumbar spine with chronic pain, is denied. From March 1, 2016 to December 12, 2019, entitlement to a 20 percent rating, but no higher, for status post laminectomy with fusion of the lumbar spine at L4-L5 and L5-S1 for degenerative disc disease (lumbar spine fusion), is granted, subject to the laws and regulations governing the payment of monetary benefits. From December 13, 2019, entitlement to a rating in excess of 20 percent, for lumbar spine fusion at L4-L5 and L5-S1, is denied. From January 20, 2016, entitlement to a 10 percent rating, but no higher, for radiculopathy of the left lower extremity, is granted, subject to the laws and regulations governing the payment of monetary benefits. From December 13, 2019, entitlement to a rating in excess of 10 percent, for radiculopathy of the left lower extremity, is denied. Prior to March 16, 2015, entitlement to a rating of 20 percent, but no higher, for status post microfracture and lateral release of the right knee with chondromalacia patella pursuant to Diagnostic Code 5299-5258 (right knee semilunar cartilage condition), is granted, subject to the laws and regulations governing the payment of monetary benefits. From March 16, 2015, entitlement to a rating in excess of 20 percent, for a right knee disability to include right knee semilunar cartilage condition, is denied. Throughout the appeal period, entitlement to a separate rating of 10 percent, but no higher, for right knee disability manifested by instability pursuant to Diagnostic Code 5257, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to January 20, 2016, the Veteran's degenerative disc disease of the lumbar spine is manifested by chronic pain; and was not manifested by flexion to 60 degrees or less, or ankylosis of the entire thoracolumbar spine. 2. From March 1, 2016, the Veteran's lumbar spine fusion at L4-L5 and L5-S1 is manifested by, at worst, flexion to 60 degrees, a combined range of motion, of at worst, 145 degrees with pain; and is not manifested by ankylosis of the entire thoracolumbar spine. 3. From January 20, 2016, the Veteran's radiculopathy of the left lower extremity is manifested by no more than mild incomplete paralysis of the sciatic nerve. 4. Throughout the entire period on appeal, the Veteran's right knee disability to include semilunar cartilage condition is manifested by noncompensable painful limitation of motion with frequent episodes of pain and locking; and subjective evidence of slight instability. CONCLUSIONS OF LAW 1. Prior to January 20, 2016, the criteria for a disability rating in excess of 10 percent, for degenerative disc disease of the lumbar spine, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. From March 1, 2016, the criteria for a 20 percent rating, but not higher, for fusion of the lumbar spine at L4-L5 and L5-S1, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. From December 13, 2019, the criteria for a disability rating in excess of 20 percent, for fusion of the lumbar spine at L4-L5 and L5-S1, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. From January 20, 2016, the criteria for a 10 percent rating for radiculopathy of the sciatic nerve of the left lower extremity, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. From December 13, 2019, the criteria for a disability rating in excess of 10 percent, for radiculopathy of the sciatic nerve of the left lower extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. Prior to March 16, 2015, the criteria for a rating of 20 percent, but not higher, for right knee disability to include a semilunar cartilage condition, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5258. 7. From March 16, 2015, the criteria for a rating in excess of 20 percent, for a right knee disability to include a semilunar cartilage condition, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5258. 8. Throughout the appeal period, the criteria for a separate 10 percent rating for instability of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1989 to December 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2014. The Board remanded the case to the AOJ in October 2018. On remand, and in June 2020, the AOJ increased the Veteran's rating to 20 percent, for his lumbar spine disability characterized as status post laminectomy with fusion of the lumbar spine for degenerative disc disease from December 13, 2019; and granted service connection for lumbar spine radiculopathy of the left lower extremity with a 10 percent rating, effective December 19, 2019. Because the increase in evaluation of the Veteran's low back disability does not represent the maximum evaluation available for the condition, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. The Veteran seeks an increased rating for his lumbar spine disability and right knee disability, which are rated under the schedule of ratings for the musculoskeletal system. 38 C.F.R. § 4.71a. The Veteran also seeks an increased rating for his radiculopathy of the left lower extremity, which is rated under the schedule of ratings for neurological conditions. 38 C.F.R. § 4.124a. During the course of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, where applicable, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Based on the evidence as outlined below, the evidence of record reflects that the Veteran has a diagnosis of degenerative arthritis of his lumbar spine and his right knee. Under the former criteria in effect prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). The revised version of Diagnostic Code 5010 provides that post-traumatic arthritis is 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 38 C.F.R. § 4.25. Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to consider all systemic arthritis (except post-traumatic and gout). The rating criteria for Diagnostic Code 5003, which provides rating for degenerative arthritis, was not revised other than to clarify that Diagnostic Code 5003 pertains to degenerative arthritis other than post-traumatic. Formerly, this Code applied to arthritis, degenerative (hypertrophic or osteoarthritis). Under both the former and current criteria, Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). In the absence of limitation of motion, a 10 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the United States Court of Appeals for Veterans Claims (Court) clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved 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 the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to January 20, 2016, in excess of 10 percent from March 1, 2016, and in excess of 20 percent from December 13, 2019 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity Resolving all reasonable doubt in favor of the Veteran, after a review of the evidence, and for reasons set forth below, the Board finds that a 20 percent rating is warranted for lumbar spine fusion of L4-L5 and L5-S1 from March 1, 2016; and a 10 percent rating is warranted for radiculopathy of the left lower extremity from January 20, 2016. Further, the Board finds that an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine with chronic pain is not warranted; a rating in excess of 20 percent for lumbar spine fusion of L4-L5 and L5-S1 from December 13, 2019 is not warranted; and a rating in excess of 10 percent for radiculopathy of the left lower extremity from December 13, 2019 is not warranted. Prior to January 20, 2016, the Veteran had a diagnosis of chronic lumbar spine pain with degenerative disc disease. See May 2014 VA examination. Private treatment records reflect that the Veteran underwent a spinal fusion of L4-L5 and L5-S1 with interbody device post 2 level in January 2016. Following the surgical procedure, the Veteran had a diagnosis of status post laminectomy with fusion of the lumbar spine at L4-L5 and L5-S1 for degenerative disc disease. See September 2017 and December 2019 VA examinations and May 2017 private treatment record. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which provides ratings for degenerative arthritis of the spine (see also Diagnostic Code 5003). The Board will consider whether the Veteran is entitled to receive higher ratings for his lumbar spine disability under all applicable diagnostic codes. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula at Note 5. A review of the record reveals that, while the most recent VA examinations in September 2017 and December 2019 satisfy the requirements of Correia, the prior VA examinations in May 2014 and June 2016 do not satisfy the requirements of Correia. In addition, while the most recent VA examination in December 2019 satisfies the requirements of Sharp, the prior VA examinations in May 2014, June 2016, and September 2017 do not satisfy the requirements of Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to December 2019, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. The Board has considered and relied on lay testimony and statements of record regarding the severity of the Veteran's low back disability and lumbar radiculopathy of the left lower extremity in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran also has reported that his lumbar spine disability has impacted his entire lifestyle. He has reported that he has chronic back pain, which worsens after sitting or standing for five to ten minutes or depending on the weather. He has reported that his back pain would be so severe at times, that he had to lay down on the ground. The Veteran has reported that he was hunched over and was unable to sit up or stand up straight due to his lumbar spine disability. He has reported his occupation as an instructor required him to either sit at a computer or stand, and he experienced difficulty concentrating while writing due to his back pain. See August 2014 notice of disagreement, October 2015 appeal, and June 2018 hearing testimony; May 2014, September 2017, and December 2019 VA examinations. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Prior to the Veteran's surgical procedure in January 20, 2016, the evidence of record does not reflect findings of limitation of flexion of 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis of the entire thoracolumbar spine. See May 2014 VA examination (limitation of flexion to 90 degrees without pain and combined range of motion to 240 degrees without pain). Following the Veteran's surgical procedure in January 20, 2016, the evidence of record reflects that the Veteran had limitation of flexion, of at worst, 60 degrees with pain and a combined range of motion, of at worst, 145 degrees with pain. See September 2017 VA examination (limitation of flexion to 85 degrees without pain and a combined range of motion of 220 degrees without pain); and December 2019 VA examination (limitation of flexion to approximately 60 degrees with pain and a combined range of motion of approximately 146 degrees with pain following repeated use over time or during flare-ups). The Veteran's low back disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, General Rating. See May 2014, September 2017, and December 2019 VA examinations. Under the General Formula, the criteria for a rating in excess of 20 percent is warranted for limitation of flexion to 30 degrees or less; favorable or unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. See General Rating Formula for Diseases and Injuries of the Spine criteria for 40, 50, and 100 percent ratings. As noted, the Veteran underwent a spinal fusion of L4-L5 and L5-S1 in January 2016. A subsequent MRI of the lumbar spine in May 2017 revealed interval laminectomy and fusion changes at L4-L5 and L5-S1. Although the evidence of record reflects that a portion of the Veteran's thoracolumbar spine, specifically L4-L5 and L5-S1, has been fused; there is no evidence to support a finding that the Veteran's entire thoracolumbar spine has been fused or that there is favorable or unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. Although VA examinations in September 2017 and December 2019 reflect that the Veteran's lumbar spine disability manifested in some limitation of motion from pain and stiffness, the medical evidence of record does not reflect that the Veteran's entire thoracolumbar spine was in a fixed position without motion at any degree or angle. 38 C.F.R. § 4.71a. The Board acknowledges the assertions of the Veteran's representative that the VA examiners did not consider whether the Veteran had ankylosis of his thoracolumbar spine due to his spinal fusion; however, the Board notes that both the September 2017 and December 2019 VA examiners acknowledged that the Veteran underwent a spinal fusion of L4-L5 and L5-S1; both examiner's measured the Veteran's initial range of motion and motion with repeated use overtime and made no findings that the Veteran's entire thoracolumbar spine was in a fixed position without motion at any degree or angle; and both examiners noted that the Veteran did not have ankylosis. See April 2021 appellate brief. Further, the September 2017 VA examiner, specifically noted that the Veteran reported that he was unable to bend like he used to because of the fusion of L4-L5 and L5-S1 in January 2016. The examiner noted that spinal fusion surgery was an effective surgical treatment for spinal arthritis to stop motion at the painful joint. The Board notes that the Veteran and his representative have not discussed particular findings that are necessary for application to the rating criteria, including whether the Veteran's entire thoracolumbar spine was in a fixed position without motion at any degree or angle; thus, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's lumbar spine fusion of L4-L5 and L5-S1 warrants a rating of 20 percent, but no higher, from March 1, 2016, based upon the December 2019 VA examiner's finding that the Veteran had muscle spasms of the low back from his lumbar spine status post laminectomy fusion, resulting in difficulty walking. However, based upon the evidence as outlined above, the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent prior to January 20, 2016, because the evidence of record does not reflect that the Veteran had limitation of forward flexion of 60 degrees or less or a combined range of motion of 120 degrees or less; and the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent from December 13, 2019, because the evidence of record does not reflect that the Veteran had limitation of forward flexion to 30 degrees or less or ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5243, which provides ratings for intervertebral disc syndrome (IVDS) with incapacitating episodes. The revised rating criteria of Diagnostic Codes 5242-5243, as in effect from February 7, 2021, now provides that degenerative arthritis and degenerative disc disease other than IVDS are rated under Diagnostic Code 5242, while Diagnostic Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. 85 Fed. Reg. 76,453 (November 30, 2020). Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020); 85 Fed. Reg. 76,453 (November 30, 2020). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Although the September 2017 VA examination reflects a finding of IVDS, the evidence of record does not reflect that the Veteran has had IVDS with incapacitating episodes at any time during the pendency of the appeal. See May 2014 and December 2019 VA examinations (No diagnosis of IVDS); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). The Board acknowledges the statements of the Veteran that he must lie prone in order to alleviate the symptoms of his lumbar spine disability; however, there is no evidence that a physician has prescribed bed rest due to the Veteran's IVDS. Thus, based upon a preponderance of the evidence, the Board finds that the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent prior to September 2017 under Diagnostic Code 5243, because the evidence of record does not reflect that the Veteran had a diagnosis of IVDS prior to September 2017; and the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent from March 1, 2016 under Diagnostic Code 5243, because the evidence of record does not reflect that the Veteran had incapacitating episodes requiring at least four weeks of bed rest prescribed by a physician, the requirement for a 40 percent rating for IVDS of the thoracolumbar spine. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. The Veteran's lumbar radiculopathy of the left lower extremity is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which provides ratings for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and a maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Resolving all reasonable doubt in favor of the Veteran, the Board finds that from January 20, 2016, the Veteran has had mild numbness of the left lower extremity due to mild radiculopathy of the sciatic nerve, based upon the December 2019 VA examiner's finding that the Veteran's status post laminectomy with fusion of the lumbar spine for degenerative disc disease placed increased pressure on the L5 nerve roots, which led to decreased sensation of the Veteran's left foot. Deep tendon reflexes (DTR) testing revealed normal reflexes of the left lower extremity and sensory examination revealed normal sensation to light touch of the left lower extremity, prior to December 13, 2019. See May 2014 and September 2017 VA examinations. From December 13, 2019, DTR testing revealed hypoactive reflexes of the left knee and sensory examination revealed decreased sensation to light touch of the left foot and toes from December 13, 2019. Straight leg testing was negative for the left leg throughout the period on appeal. See May 2014, September 2017, and December 2019 VA examinations. Based on a preponderance of the evidence, the Board finds that entitlement to service connection for radiculopathy of the right lower extremity has not been established. The Board notes that although a straight leg raising test in September 2016 was positive for the right leg, all other objective testing of the right lower leg was negative for signs or symptoms of radiculopathy of the right lower extremity. DTR testing revealed normal reflexes for the right leg and sensory examination revealed normal sensation to light touch of the right lower extremity. In addition, other than right knee pain, the Veteran has not reported any pain, paresthesias, or numbness of the right lower extremity at any time during the period on appeal. See May 2014, September 2017, and December 2019 VA examinations. Physical examination of the Veteran in September 2017 and December 2019 revealed a scar on the lumbar spine due to the surgical procedure in January 2016, which have been separately rated and are not on appeal. The Veteran has reported that his low back disability impacts his ability to concentrate. See August 2014 notice of disagreement and June 2018 hearing testimony. The Veteran's reported symptoms of difficulty concentrating reasonably raises a claim of secondary service connection for that condition and it is not addressed as part of the rating criteria for lumbar spine disabilities. Thus, the issue of entitlement to service connection for a mental disorder, to include difficulty concentrating, has been remanded to the AOJ for additional development. See Bailey, supra. Thus, resolving all reasonable doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 20 percent rating is warranted for the Veteran's lumbar spine fusion of L4-L5 and L5-S1 from March 1, 2016; and a 10 percent rating is warranted for the Veteran's radiculopathy of the left lower extremity from January 20, 2016. Based on the evidence as outlined above, the Veteran's degenerative joint disease of the lumbar spine with chronic pain does not warrant a rating in excess of 10 percent prior to January 20, 2016; the Veteran's lumbar spine fusion of L4-L5 does not warrant a rating in excess of 20 percent from December 13, 2019; and the Veteran's radiculopathy of the left lower extremity does not warrant a rating in excess of 10 percent from December 13, 2019. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to an initial rating in excess of 10 percent for a right knee disability prior to March 16, 2015 and in excess of 20 percent from March 16, 2015 Resolving all reasonable doubt in favor of the Veteran, after a review of the evidence and for reasons set forth below, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's right knee disability to include a semilunar cartilage condition under Diagnostic Code 5258 prior to March 16, 2015; and a separate 10 percent rating, but no higher, is also warranted under Diagnostic Code 5257 for right knee instability, throughout the period on appeal. However, the Board finds that a disability rating in excess of 20 percent for the Veteran's right knee disability is not warranted from March 16, 2015. The Veteran has a current diagnosis of status post microfracture and lateral release of the right knee with chondromalacia patella and degenerative joint disease. See May 2014 VA examination (right knee microfracture with chondromalacia of the right knee and degenerative joint disease); June 2016 VA examination (degenerative arthritis with chondromalacia patella of the right knee); September 2017 VA examination (status post microfracture with lateral release of the right knee); and December 2019 VA examination (status post microfracture with lateral release of the right knee with instability). The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5258 as analogous to other impairment of the knee manifested by frequent episodes of locking, pain, and effusion into the right knee. 38 C.F.R. §§ 4.20, 4.27. The disability was previously rated pursuant to the provisions of Diagnostic Code 5260 which contemplates limitation of flexion of the knee. The Board will consider whether the Veteran is entitled to receive higher ratings for his right knee disabilities under all applicable diagnostic codes. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260, provides that a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 50 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a. A review of the record reveals that, while the most recent VA examinations in September 2017 and December 2019 satisfy the requirements of Correia, the prior VA examinations in May 2014 and June 2016 do not satisfy the requirements of Correia; and while the most recent VA examination in December 2019 satisfies the requirements of Sharp, the prior VA examinations in May 2014, June 2016 and September 2017 do not satisfy the requirements of Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to December 2019, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. The Board has considered and relied on lay testimony and statements of record regarding the severity of the Veteran's right knee disability in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran has repeatedly stated that he has chronic right knee pain and his right knee would occasionally give way, when using stairs or engaging in some physical activities and sports. He has stated that he would have flare-ups when using stairs and standing; his right knee disability limited his ability to engage in physical activities, including running or playing sports; and his right knee would occasionally lock and he had difficulty fully extending his knee prior to stepping off of a curb or going down the stairs. The Veteran has also reported that he had been prescribed a knee brace which did not help, and he used hiking poles when walking for extended periods. See June 2018 hearing testimony; May 2014, June 2016, September 2017, and December 2019 VA examinations. See Washington, supra; Jandreau, supra; see also Baldwin, supra. Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri, supra. VA examinations indicate that the Veteran's right knee range of motion (ROM) was manifested by limitation of flexion to at worst 90 degrees and limitation of extension to at worst 0 degrees with pain. See May 2014 VA examination (initial ROM and repetitive use revealed flexion to 120 degrees with pain and no limitation of extension); June 2016 VA examination (initial ROM and repetitive use revealed flexion to 90 degrees with pain and extension to 0 degrees with pain); September 2017 VA examination (initial ROM and repetitive use revealed flexion to 140 degrees, extension to 0 degrees); December 2019 VA examination (estimated flexion to 110 degrees and extension to 0 degrees with pain with repeated use over time or during flare-ups). The June 2016 and December 2019 VA examinations also indicate that pain caused functional loss with repeated use over time and during flare-ups, and there was objective evidence of mild tenderness and pain on palpation of the medial lateral joint line of the right knee; and objective evidence of crepitus. But see May 2014 VA examination (no functional loss and no objective evidence of localized tenderness, pain on palpation, or crepitus) and September 2017 VA examination (normal range of motion without functional loss and no objective evidence of tenderness or pain on palpation; there was objective evidence of crepitus). The VA examinations indicate that the Veteran's right knee disability caused increased pain on movement and limited his ability to sit, stand, walk, use stairs. See May 2014 VA examination (right knee had less movement than normal and pain on movement); June 2016 (right knee was in constant pain, impacted ability to run or stand for long periods); September 2017 VA examination (Veteran unable to sit, stand, or walk more than 20 minutes without pain, and had difficulty climbing stairs and ladders); December 2019 VA examination (Veteran's right knee condition caused increased pain with standing and walking). Muscle strength testing revealed normal strength on flexion and extension of the right knee without muscle atrophy. See May 2014, June 2016, September 2017, and December 2019 VA examinations (normal muscle strength of right knee flexion and extension); June 2016, September 2017, and December 2019 VA examinations (no muscle atrophy). The Veteran's right knee disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The medical evidence of record clearly shows that the Veteran's right knee is not ankylosed at any level. See June 2016, September 2017, and December 2019 VA examinations. Additionally, the Veteran's right knee disability does not reflect findings of compensable limitation of flexion or extension throughout the period on appeal even with consideration of the factors outlined in DeLuca, supra. However, resolving all reasonable doubt in favor of the Veteran, the Board finds that prior to March 16, 2015, the Veteran's right knee disability warrants a 20 percent rating under Diagnostic Code 5258, based upon a January 2014 private MRI which revealed evidence of previous partial medial meniscectomy with articular cartilage loss noted of the distal medial femoral condyle, some small osteochondral defects, and early medial compartment degenerative changes. See also January 2012 MRI, March 2012 service treatment record, and June 2016 VA examination. But see March 2014, September 2017, and December 2019 VA examinations. A March 2012 service treatment record reflects that the Veteran underwent a right knee scope, medial femoral condyle (MFC) microfracture, and lateral release. A subsequent MRI in January 2014 revealed evidence of previous partial medial meniscectomy with articular cartilage loss noted of the distal medial femoral condyle, some small osteochondral defects, and early medial compartment degenerative changes. As noted, the June 2016 and December 2019 VA examinations revealed objective evidence of mild tenderness and pain on palpation of the medial lateral joint line of the right knee; and objective evidence of crepitus. See also September 2017 VA examination. But see May 2014 VA examination. Further, the Veteran has repeatedly stated that he had chronic right knee pain resulting in some limitation of motion and his right knee would occasionally give way, when using stairs or engaging in some physical activities and sports. He has testified that his right knee would occasionally lock up on him and he had to be sure that he had fully extended his right knee prior to stepping off of a curb or going down the stairs. See June 2018 hearing testimony; May 2014, June 2016, September 2017, and December 2019 VA examinations. Finally, while a March 2015 private imaging report reveals no definite joint effusion, small right effusion could not be ruled out. Diagnostic Codes 5258 and 5259, which provide ratings for semilunar cartilage conditions, remain the same under the revised criteria. When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Thus, resolving all reasonable doubt in the Veteran's favor, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the Veteran's right knee disability warrants a maximum 20 percent rating under Diagnostic Code 5258 prior to March 16, 2015. As noted, from March 16, 2015, the Veteran has a current rating of 20 percent, which is the maximum rating assignable under Diagnostic Code 5258. The evidence of record during this appeal period has reflected limited and painful, albeit not compensable, motion. The Veteran's right knee disability is productive of additional functional limitation beyond what is reflected in his range of motion measurements. Specifically, the record reflects reports of pain on movement, reports of locking and instability. As noted, there is also some evidence of right knee effusion. Further, private treatment records and a June 2016 VA examination establish that the Veteran has a current diagnosis of degenerative joint disease of the right knee although several VA examinations including the most recent VA examination in 2019 found no evidence of degenerative or traumatic arthritis on diagnostic imaging. See January 2014 private MRI; March 2015 private x-ray. But see May 2014, September 2017, and December 2019 VA examinations (no arthritis). See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, supra; DeLuca, supra. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Thus, a separate evaluation for arthritis and meniscal injuries may be warranted, as long as the same symptoms are not used to assign those separate evaluations (i.e., pyramiding). See Lyles, supra; see also 38 C.F.R § 4.14. In this case, the Veteran's pain with resultant painful albeit noncompensable limitation of motion, his reports of locking, and some evidence of effusion have been used to assign the Veteran's compensable evaluation under Diagnostic Code 5258; there is not any other symptomatology with respect to his right knee that has not been contemplated by the assigned 20 percent evaluation for his affected right knee impairment in this case such that the Board would assign a separate evaluation in this case under the arthritic diagnostic codes. In other words, the evidence of record indicates that the Veteran's meniscal impairment has in part caused his pain with decreased motion as well as locking and effusion; to the extent that there is conflicting evidence of right knee arthritis, if the Board were assign a separate 10 percent evaluation under Diagnostic Codes 5003 or 5010 in this case for painful motion, the same criteria would be used to assign that criteria and there would be no other criteria left uncontemplated such that would allow a rating for his arthritis based on painful motion. Therefore, the Board cannot assign a separate evaluation under Diagnostic Codes 5003 and 5010 in this case respecting the Veteran's right knee disability, as to do so would be impermissible pyramiding. See 38 C.F.R. §§ 4.14 , 4.71a, Diagnostic Codes 5003, 5010, 5258. However, as noted separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. In this regard, under the former version of Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Given that objective medical evidence is not necessarily required to establish lateral knee instability under Diagnostic Code 5257, pursuant to English v. Wilkie, 30 Vet. App. 347, 352-53 (2018), the Board resolves all doubt in the Veteran's favor that he has had slight instability in the right knee throughout the appeal. The next higher 20 percent rating is not warranted, as the evidence does not show moderate recurrent subluxation or lateral instability. Notably, joint stability testing in May 2014, June 2016, September 2017, and December 2019 reveal that the Veteran has had normal joint stability of the right knee throughout the period on appeal. Although June 2016 and December 2019 VA examinations reflect that the Veteran has been prescribed a right knee brace for his right knee disability, there is no objective evidence that the Veteran has recurrent subluxation or lateral instability of his right knee. These findings along with the wearing a brace and subjective complaints of giving way, shows no more than slight instability in the right knee. With the change in regulations as outlined above effective from February 7, 2021, Diagnostic Code 5257 now contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. In this regard, the while there is evidence of meniscus impairment and use of a prescribed brace for the right knee as noted, the VA medical evidence of record shows that there is no objective or clinical evidence of instability in the right knee. As noted above, the Board has accepted the Veteran's competent statements and testimony as probative subjective evidence of instability in the right knee. Nonetheless, regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a higher rating for recurrent subluxation or instability is not warranted because the evidence does not show sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability or unrepaired or failed repair of complete ligament tear causing persistent instability, or a diagnosis of patellofemoral complex. Notably, diagnostic testing for stability VA examinations does not reveal any objective evidence of instability, which is probative evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, the evidence strongly suggests that persistent instability is not present. A higher 20 percent rating under the revised version of Diagnostic Code 5257 is therefore, not warranted. Finally, physical examination revealed 3 scars on the right knee due to the surgical procedure on the right knee in March 2012, which have been separately rated and are not currently under appeal. Resolving all reasonable doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's right knee disability to include semilunar cartilage impairment under Diagnostic Code 5299-5258 prior to March 16, 2015; a rating higher than 20 percent for right knee disability to include by semilunar cartilage impairment under Diagnostic Code 5299-5258 from March 16, 2015. Further, the Board finds that a separate 10 percent rating, but no higher, is warranted under Diagnostic Code 5257 (slight instability of the right knee) throughout the period on appeal. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert, supra. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.