Citation Nr: 22005403 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 04-42 241 DATE: February 1, 2022 ORDER Entitlement to a rating in excess of 10 percent for right lower leg scars prior to September 10, 2015 and to a rating in excess of 20 percent thereafter is denied. Entitlement to an initial rating in excess of 10 percent left knee strain limitation of motion is denied. A rating of 10 percent for left knee instability is granted from November 29, 2007, but entitlement to an initial compensable rating for left knee instability prior to that date is denied. Entitlement to a rating in excess of 10 percent for right knee instability from November 29, 2007 to September 14, 2021 is denied. Entitlement to a rating of 20 percent, but no greater, for left knee instability is granted from September 15, 2021. A separate 20 percent rating under Diagnostic Code 5258 is granted from November 29, 2007 to September 15, 2021. Entitlement to a rating in excess of 10 percent for low back pain prior to November 29, 2007, to a rating in excess of 20 percent from November 29, 2007 to September 9, 2015, and to a rating in excess of excess of 40 percent from September 10, 2015 is denied. Entitlement to a rating in excess of 20 percent for right common peroneal nerve injury prior to September 10, 2015 and to a rating in excess of 40 percent thereafter is denied. Entitlement to an effective date earlier than September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the right lower extremity is denied. Entitlement to an effective date prior to September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the left lower extremity is denied. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. Prior to September 10, 2015, the Veteran manifested three or four nontender surgical scars of the right lower extremity. 2. As of September 10, 2015, the Veteran manifested four tender surgical scars of the right lower extremity. 3. The Veteran's left knee disability was not characterized by extension limited to 15 degrees or greater or flexion limited to 60 degrees at any time during the period on appeal. 4. Prior to November 29, 2007, there is no evidence of left knee instability; at a November 29, 2007 VA examination, the Veteran complained of giving way of the knee and a September 10, 2015 VA examination found 1+ instability of the medial and lateral ligaments; at his September 15, 2021 VA examination, the examiner diagnosed persistent instability which required a prescription by a medical provider for a cane. 5. VA examinations in November 2007 and September 2015 noted complaints of swelling and locking and a diagnosis of meniscal tear with symptoms of pain, locking, and effusion into the joint. 6. Prior to November 29, 2007, the Veteran's low back disability was manifested by pain and range of motion of forward flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally and rotation to 45 degrees bilaterally; without additional limitation by pain, fatigue, weakness, lack of endurance or incoordination; ankylosis of the spine; or signs of intervertebral disc syndrome (IVDS), which are productive of no more than slight impairment. 7. From November 29, 2007, to September 9, 2015, the Veteran's low back disability was manifested by pain and range of motion of forward flexion to 78 degrees, extension to 15 degrees, lateral flexion to 15degrees bilaterally and rotation to 25 degrees bilaterally; without additional limitation by pain, fatigue, weakness, lack of endurance or incoordination; ankylosis of the spine; or signs of IVDS, which are productive of moderate impairment, but no more. 8. As of September 10, 2015, the Veteran's low back disability has been manifested by forward flexion to 25 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 10 degrees bilaterally; pain on weight bearing; moderate tenderness over the lumbar para-spinal area; without pain, weakness, fatigability, or incoordination significantly limiting functional ability during flare-ups; muscle spasm that did not result in abnormal gait or abnormal spinal contour; signs of moderate radiculopathy affecting both lower extremities; without ankylosis or incapacitating episodes of IVDS. 9. Prior to September 10, 2015, residuals of an injury of the right common peroneal nerve were manifested by numbness and tingling of the right lower extremity. 10. As of September 10, 2015, the Veteran's right common peroneal nerve injury is shown to be manifested by numbness, tingling, decreased muscle strength and decreased deep tendon reflexes at the ankle. 11. The evidence does not show a diagnosis of sciatic nerve radiculopathy of the right lower extremity prior to September 10, 2015. 12. The evidence does not show a diagnosis of sciatic nerve radiculopathy of the left lower extremity prior to September 10, 2015. 13. During the period on appeal, the Veteran's sciatic nerve radiculopathy of the right lower extremity was primarily manifested by pain and sensory disturbances, with hypoactive reflexes and inconsistently documented muscle weakness in the lower extremities, but without impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. 14. During the period on appeal, the Veteran's sciatic nerve radiculopathy of the left lower extremity was primarily manifested by pain and sensory disturbances, with hypoactive reflexes and inconsistently documented muscle weakness in the lower extremities, but without impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right lower leg scars prior to September 10, 2015 and to a rating in excess of 20 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804. 2. The criteria for entitlement to an initial rating in excess of 10 percent left knee strain limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5024, 5261. 3. The criteria for entitlement to an initial compensable rating for left knee instability prior to November 29, 2007 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a 10 percent rating for left knee instability, but no greater, have been met from November 29, 2007 to September 15, 2021. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. The criteria for entitlement to a 20 percent rating for left knee instability, but no greater, have been met from September 15, 2021. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 6. The criteria for entitlement to a separate 20 percent rating under Diagnostic Code 5258 for left knee strain have been met from November 29, 2007 to September 15, 2021. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 7. The criteria for entitlement to a rating in excess of 10 percent for low back pain prior to November 29, 2007, to a rating in excess of 20 percent from November 29, 2007 to September 9, 2015, and to a rating in excess of excess of 40 percent from September 10, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2007), Diagnostic Code 5292 (2015), Diagnostic Code 5242 (2017). 8. The criteria for entitlement to a rating in excess of 20 percent for right common peroneal nerve injury prior to September 10, 2015 and to a rating in excess of 40 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 9. The criteria for entitlement to an effective date earlier than September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). 10. The criteria for entitlement to an effective date prior to September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). 11. The criteria for entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 12. The criteria for entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to January 1991. These matters come before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The case has an intricate and complicated procedural history, including multiple remands and decisions by the Board, which were appealed to the United States Court of Appeals for Veterans Claims (Court) and resulted in multiple Joint Motions for Remand (JMR) and Memorandum Decisions that returned the matters to the Board. Most recently, in May 2020, the Veteran's claims were remanded for additional development, to include associating additional VA treatment records with the Veteran's claims file and referral for new VA examinations. The Veteran testified before a member of the Board at a July 2017 Travel Board hearing, and a transcript of this hearing is of record. In December 2020, the Veteran was notified that the Veterans Law Judge who held his hearing is no longer employed by the Board and was given the opportunity to request another hearing. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating in excess of 10 percent for right lower leg scars prior to September 10, 2015 and to a rating in excess of 20 percent thereafter is denied. The Veteran seeks a higher disability evaluation for his service connected right lower leg scars. Service connection for scars of the right lower leg was granted by the RO in a July 1991 rating decision. A 10 percent rating was awarded under Diagnostic Code (DC) 7804. The rating was increased to 20 percent, effective September 10, 2015, under the provisions of the same code. The Board notes that amendments were twice made to the criteria for rating the skin during the pendency of the appeal, effective October 23, 2008 and August 13, 2018. The amended regulations effective October 23, 2008 are only applicable to claims received on or after October 23, 2008. A veteran whom VA rated before such date under DCs 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. § 4.118 may request review under these amended criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of the rule, but will otherwise be assigned under the current regulations regarding effective dates, 38 C.F.R. § 3.400, etc. See 38 C.F.R. § 4.118 and 73 Fed. Reg. 54,708 (September 23, 2008). In the rating decision on appeal, the AOJ evaluated the Veteran's scars under the rating criteria in effect prior to the change. In the September 2015 supplemental statement of the case, however, the AOJ provided the new criteria and evaluated the Veteran's claim applying the new regulations. It does not appear that the Veteran specifically requested review under the revised criteria as noted in the regulations, but the AOJ has considered the old and new rating criteria, and the Veteran was made aware of the changes. See Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board will evaluate the Veteran's service-connected disability under all potentially applicable diagnostic codes. Under the rating criteria in effect prior to October 23, 2008, DC 7801 indicates that, for scars other than on the head, face, or neck, where such are deep and cause limited motion, a 10 percent evaluation is warranted in an area or areas exceeding six square inches (39 sq. cm.) and a 20 percent evaluation is warranted in an area or areas exceeding 12 square inches (77 sq. cm.). Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. Under DC 7802, for scars, other than on the head, face, or neck that are superficial and that do not cause limited motion, a 10 percent evaluation is warranted in an area or areas of 144 square inches (929 sq. cm.) or greater. Note (2) indicates, that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7803, superficial unstable scars are rated 10 percent disabling. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar (Note (1)) and a superficial scar is one that is not associated with underlying soft tissue damage (Note (2)). Under DC 7804, a 10 percent evaluation is warranted for superficial scars painful on examination. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7805, scars will continue to be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118, DCs 7801-7805 (2008). Under the revised regulations effective from October 23, 2008, DC 7801 indicates that for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 10 percent rating is warranted. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Under DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation, three or four scars that are unstable or painful warrant a 20 percent evaluation, and five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Under DC 7805, other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, DCs 7801-7805 (2017). As noted above, VA regulations on skin disabilities were again revised, effective August 13, 2018. See 83 Fed. Reg. 32592, 32597 (July 13, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. The August 13, 2018 skin amendments introduce a General Rating Formula for skin conditions and amend DCs 7801 and 7802 by characterizing multiple scars by six body zones affected rather than by extremity. In addition, under the amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). There are no changes to DCs 7800, 7804, and 7805 under the August 13, 2018 amended version of the skin criteria. In other words, DCs 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). The preponderance of the evidence weighs against finding that a higher disability evaluation is warranted at any time during the pendency of the appeal under any version of the diagnostic codes for rating skin. On examination by VA in December 2003, the Veteran stated that his surgical scars showed tenderness and pain through the leg when touched. He reported no functional impairment. On examination, there was a level scar present at the right anterior knee that measured 11 cm by 1 cm. There was a scar of the right lateral leg measuring 3 cm by 1 cm. There was a scar at the right anterior shin, which was level, measuring 6 cm by 0.5 com. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. The diagnosis was postoperative scars of the right lower leg, without functional impairment. On examination by VA in November 2007, four scars were noted on the Veteran's right leg. The first measured 6 cm by 1 cm and was located on the leg medially. A second scar, also on the right lower leg medially measured 2 cm by 1 cm. The third scar measured 5 cm by 1 cm and was noted on the right knee medially. The fourth scar was located on the right upper leg laterally. This measured 3 cm by 1 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion. The diagnosis was postoperative scars of the right lower leg, without functional impairment. An examination of the Veteran's scars was conducted by VA on September 10, 2015. At that time, four surgical scars were noted. Two were noted on the Veteran's right lower leg, medially; one was on the right knee medially; and the fourth was on the right upper leg, laterally. The Veteran complained of tenderness. The scars measured 6 cm, 2 cm, 5 cm, and 3 cm, respectively. The Veteran stated that the scars were painful when wearing long pants if something rubbed against them. The Veteran was afforded another VA examination of his scars in September 2021. The examiner noted only two scars, a scar on the right knee measuring 7 cm by 0.4 cm and a scar on the right lower leg measuring 7 cm by 0.4 cm, both of which were described as healed and asymptomatic. The examiner found that the Veteran's scars were not painful, unstable, or characterized by underlying soft tissue damage. The Veteran's surgical scarring of the right leg was rated 10 percent disabling prior to September 10, 2015, and 20 percent disabling from September 10, 2015. At his December 2003 VA examination, the Veteran reported tenderness and pain to his leg when his scars are touched, which met the criteria for a 10 percent evaluation under the version of DC 7804 in effect prior to October 2008. The scars were, on examination, described as having no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion. As such, the Board finds no basis to award a separate or higher rating under any other diagnostic code. The Board has considered whether the Veteran could be afforded a 20 percent rating from October 23, 2008 under the revised version of DC 7804 based on the presence of three or four painful scars. However, at a November 2007 VA examination of his scars, the examiner found no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion on examination of the knee. The examination is also negative for any documented reports by the Veteran of pain or tenderness of the scars. Thus, the evidence suggests that the Veteran's scars were asymptomatic at that time. Given that the September 2021 VA examination also found that the Veteran's scars were not painful, the preponderance of the evidence suggests that the Veteran's scars are not consistently symptomatic. While it is possible that the Veteran's scars became pain again prior to the September 2015 examination, the Board is unable to find any complaints of scar pain or tenderness in the Veteran's VA treatment records during the period at issue nor has the Veteran identified any specific evidence that would allow the Board to assign an earlier effective date for the 20 percent rating. In conclusion, there is no indication that the Veteran was entitled to a rating in excess of the initially assigned 10 percent at any time prior to the September 10, 2015 under any diagnostic code. On September 10, 2015, four tender scars were demonstrated on VA examination. As only four tender scars were noted, not five, there is no basis for a rating in excess of 20 percent under DC 7804. The scars have not been noted to be unstable, to be associated with underlying soft tissue damage, or to cover an area of 144 square inches (929 sq. cm.). There is no evidence that they cause functional impairment of the right lower extremity. Therefore, assignment of a rating under DCs 7801, 7802, or 7805 is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased rating for scars of the right lower extremity, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent left knee strain limitation of motion is denied. 3. Entitlement to an initial compensable rating for left knee instability prior to September 10, 2015 and to a rating in excess of 10 percent thereafter is denied. The Veteran seeks higher disability ratings for his service-connected left knee disability. Service connection for left knee strain was granted by April 2008 decision of the RO. A 10 percent rating was awarded as analogous to tenosynovitis under the provisions of DC 5024, effective September 27, 2002. The diseases under DCs 5013 through 5024 are rated on limitation of motion of affected parts as degenerative arthritis (except gout, DC 5017, which is rated under DC 5002). Although these disabilities are to be rated as degenerative arthritis (DC 5003), Note (2) to DC 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings with no limitation of motion of the joint or joints will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative 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 there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. Separate disability ratings are possible for knee arthritis with limitation of motion under DC 5003 and instability of the knee under DC 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated as 0 percent disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated as 0 percent disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. See VAOPGCPREC 09-04. DC 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. VA amended the ratings criteria for the musculoskeletal system, including knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The pre-revision and revised versions of DC 5003 are identical, other than the revised version specifying it pertains to degenerative arthritis, "other than post-traumatic." Prior to the amendments, DC 5257 generally applied to lateral instability and subluxation without specifying the cause of either instability of subluxation. The amendments, however, now specify that a rating under DC 5257 be assigned for pathology of the ligaments in the knee. Following the revisions, DC 5257 now contains ratings criteria specific to the patellofemoral complex, defined as quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1). The revised DC 5257 now provides for recurrent knee subluxation or instability a 10 percent rating for 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 available for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Assignment of 30 percent is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. If there is patellar instability, 10 percent will be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) which does not require a prescription from a medical provider for a brace, cane or walker. 20 percent is available 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. 30 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair which requires a prescription by a medical provider for a brace and either a cane or a walker. The following notes to the diagnostic code provided further explanation: 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 which 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). There are no changes to DCs 5258 to 5261 under the revised rating schedule. When evaluating musculoskeletal disabilities, VA, in addition to applying the schedular criteria, may 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, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 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) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, 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, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also 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). On examination by VA in December 2003, the range of motion (ROM) of the Veteran's left knee was normal, with extension to 0 degrees and flexion to 140 degrees. The joint ROM was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. The drawer test and McMurray's test of the left knee were within normal limits. Significantly, at the time of the examination, the Veteran denied making any claim for a left lower extremity condition. On examination in November 2007, the Veteran reported subjective symptoms of swelling with prolonged standing or walking, giving way, and locking. ROM testing of the left knee revealed extension to 0 degrees and flexion to 110 degrees. This was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Testing showed the Veteran's ligament stability to be within normal limits. Examination of the left knee showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. Examination of the left tibia and fibula was normal. At an October 2009 Decision Review Officer Hearing, the Veteran described left knee swelling. He also described falling frequently because of knee instability, but it is unclear from the Veteran's testimony whether these falls are because of the Veteran's right knee, his left knee, or both. On examination by VA on September 10, 2015, the Veteran was diagnosed with left knee osteoarthritis and meniscal tear. The Veteran reported symptoms of pain, weakness, stiffness, swelling, instability, locking, fatigability, and lack of endurance. ROM of the left knee was noted to be from 5 degrees extension to 80 degrees flexion and from 10 degrees extension to 75 degrees flexion on repetitive use testing. This degree of limitation would be considered compensable (10 percent) for extension on repetitive use testing and noncompensable in flexion. There was pain on weight bearing and moderate to severe tenderness on palpation of the joint. On stability testing, it was noted that there was 1+ medial and lateral instability. A meniscal tear with frequent episodes of joint locking, pain and effusion was also noted. The Veteran was afforded another VA examination in September 2021. The Veteran complained of pain and stiffness, as well as decreased ROM, mobility, and endurance. He reported that his symptoms cause difficulty standing or walking for long periods, kneeling, and climbing stairs. The Veteran denied flare-ups. On examination, the Veteran had active and passive ROM of the left knee from 0 degrees extension to 100 degrees flexion. There was no additional limitation of motion following repetitive testing. He had pain with weightbearing and with active and passive ROM that did not result in functional loss. The examiner stated that pain, fatigability, weakness, and lack of endurance would significantly limits functional ability with repeated use over time. The examiner estimated that the Veteran's ROM following repeated use would be from 0 degrees extension to 90 degrees flexion. There was no objective evidence of crepitus, pain on palpation of the joint, muscle atrophy, or ankylosis. The Veteran had recurrent subluxation or recurrent instability of the left knee, but not recurrent patellar instability. He was prescribed a cane for assistance with ambulation. He also regularly used a knee brace. He did not currently have a meniscus (semilunar cartilage) condition. Based on the above evidence, the Board finds that a higher rating based on limitation of motion is not warranted for any period on appeal. There is no evidence of extension limited to 15 degrees or greater or flexion limited to 60 degrees or less at any time during the pendency of the appeal. Regarding the Veteran's separate rating for instability under DC 5257, the Board has first considered whether a compensable evaluation can be assigned prior to September 10, 2015. While the Veteran did not have instability of the left knee joint on testing at his November 2007 VA examination, the Veteran did describe subjective symptoms of giving way. In light of the Veteran's normal examination, it is unclear whether this giving way represents true joint instability or simply weakness in the left knee and lower extremity; however, affording the Veteran the benefit of the doubt, the Board will award a separate 10 percent rating from November 29, 2007, the date of his examination. It does not appear that the Veteran mentioned any instability or giving way of the knee in earlier VA outpatient treatment records or statements to VA. The Board finds a rating in excess of 10 percent is not warranted prior to September 15, 2021 for left knee instability because the Veteran had no objective symptoms of instability at the November 2007 VA examination and because the September 2015 VA examination showed only slight (+1) instability. However, at the September 2021 VA examination, the examiner found that the Veteran had persistent left knee instability and was prescribed a cane by a medical provider. Under the revised version of DC 5257, effective February 2, 2021, a 20 percent rating for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. Accordingly, the Veteran's rating for left knee instability is increased to 20 percent, effective September 15, 2021. Finally, the Board has considered whether a higher rating can be awarded under any other diagnostic code for rating the knee. There is no evidence that the Veteran has ankylosis of the left knee, removal of semilunar cartilage, impairment of the left tibia or fibula, or genu recurvatum. Accordingly, DCs 5256, 5259, 5262, and 5263 are not for application. However, the September 2015 VA examination does diagnose the Veteran with a meniscus tear of the left knee with locking, pain, and effusion into the joint. Accordingly, a separate 20 percent rating under DC 5258 is warranted. Because the November 2007 VA examination noted that the Veteran reported subjective complaints of knee pain, swelling, and locking while the September 2021 VA examination found no current condition of the left meniscus, the Board finds that the 20 percent rating under DC 5258 should be assigned from November 29, 2007 to September 15, 2021. 4. Entitlement to a rating in excess of 10 percent for low back pain prior to November 29, 2007, to a rating in excess of 20 percent from November 29, 2007 to September 9, 2015, and to a rating in excess of excess of 40 percent from September 10, 2015 is denied. The Veteran seeks entitlement to a higher disability evaluation for his service-connected low back disability. Service connection for low back pain was granted by the RO in a July 1991 rating decision. A 10 percent rating was awarded at that time as analogous to lumbosacral strain under old DC 5295. The Veteran submitted a claim for increased rating in September 2002. By a September 2015 supplemental statement of the case (SSOC), the RO increased the evaluation of the Veteran's low back disability to 40 percent, effective September 10, 2015, under DC 5242. A June 2018 Board decision increased the Veteran's disability evaluation to 20 percent from November 29, 2007 to September 9, 2015. DC 5292 (in effect prior to September 26, 2003) provided ratings based on limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine was to be rated 10 percent disabling; moderate limitation of motion of the lumbar spine was to be rated 20 percent disabling; and severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a. DC 5293 (in effect from September 23, 2002 through September 25, 2003) provided that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. DC 5293 (in effect from September 23, 2002 through September 25, 2003) provided a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating for IVDS with 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 rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Notes following DC 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating IVDS. Note (1) provided that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provide that, if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a. DC 5294 (in effect prior to September 26, 2003) provided ratings for sacro-iliac injury and weakness were to be rated under the DC 5295 criteria. 38 C.F.R. § 4.71a. DC 5295 (in effect prior to September 26, 2003) provided ratings for lumbosacral strain. Lumbosacral strain with slight subjective symptoms only was assigned a noncompensable (0 percent) rating. Lumbosacral strain with characteristic pain on motion was rated as 10 percent disabling. Lumbosacral strain with muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in the standing position, was rated 20 percent disabling. Severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, was rated 40 percent disabling. 38 C.F.R. § 4.71a. Effective in September 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a. DC 5243 (effective September 26, 2003) provides that 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. The Formula for Rating IVDS Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with 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 rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 (effective September 26, 2003) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The rating schedule for musculoskeletal disabilities was revised again effective February 7, 2021. There was no change to DC 5242. DC 5243 was changed to reflect that this diagnostic code should be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, DC 5242 should be assigned for all other diagnoses. When evaluating musculoskeletal disabilities, VA, in addition to applying the schedular criteria, may 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, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 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) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, 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, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also 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). An examination was conducted by VA in December 2003. At that time, the Veteran complained of pain in the low back that was aggravated by rest for a long period of time and alleviated by sitting up and switching positions. He stated that the condition did not cause incapacitation; while he had impairment in bending, lifting, standing or walking for long periods, it did not result in any time lost from work. Examination showed posture to be within normal limits. There was no muscle spasm or tenderness noted. Forward flexion was to 90 degrees. Backward extension was to 30 degrees. Lateral flexion was to 30 degrees bilaterally. Rotation was to 45 degrees bilaterally. ROM was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. There was no ankylosis of the spine and no signs of IVDS. X-ray studies were not conducted as the Veteran apparently did not wish them. The diagnosis was low back pain status-post spinal anesthesia. The examiner stated that the extent of functional impairment due to the service-connected disability could not be determined as the examination was incomplete because X-ray studies were not conducted. An examination was conducted by VA on November 29, 2007. At that time, the Veteran stated that he had constant pain that travelled to the middle of his back. He characterized the pain as aching and sharp and quantified it as a 7 on a scale from 1 to 10. The pain came on by itself and was relieved by medication. He was able to function with medication. He stated that the condition had not resulted in incapacitation. On examination, there was no muscle spasm. Tenderness was noted over the lower spine. There was no ankylosis. ROM testing revealed forward flexion to 78 degrees with pain occurring at 75 degrees. Extension was to 15 degrees, with pain at 15 degrees; right lateral flexion was to 30 degrees, with pain occurring at 30 degrees; left lateral flexion was to 20 degrees, with pain occurring at 20 degrees; and right and left rotation was to 25 degrees with pain occurring at 25 degrees. The examiner stated that joint function was additionally limited by pain, weakness and fatigue after repetitive use, but that this did not result in additional limitation of motion. There were no signs of IVDS or permanent nerve root involvement. X-rays of the lumbar spine were within normal limits. The diagnosis was chronic sacral strain. An October 2012 treatment record from New Hanover Regional Medical Center shows that the Veteran sought treatment for low back pain following a fall. On examination, he had some tenderness to the right lumbar paraspinal muscle area and some muscle spasm. He had normal strength and reflexes in his lower extremities. He was diagnosed with a back contusion and fracture of the transverse process, status-post fall. VA outpatient treatment records show that the Veteran was treated in November 2012 for back pain with fractures of the transverse processes following a fall after his right knee gave out. On examination, it was noted that his back was slightly tender to palpation. The Veteran walked with a decided limp and required the use of a cane for ambulation favoring the right side. An examination was conducted by VA on September 10, 2015. At that time, the diagnoses were degenerative arthritis of the spine, IVDS, and radiculopathy of the lumbar region. The Veteran described pain that radiated from the mid-lower back that went down both legs. He reported stiffness, spasms, fatigability, weakness, and numbness and tingling in the buttocks and legs. He took the medication Gabapentin daily with fair effectiveness. The Veteran reported flare-ups that made it difficult for him to function. He had functional loss and impairment due to pain, with difficulty lifting and carrying gear, walking for prolonged periods, bending over, and sitting for prolonged periods. ROM testing revealed forward flexion to 25 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 10 degrees bilaterally. The examiner noted that the Veteran had pain on weight bearing and moderate tenderness noted over the lumbar para-spinal area. He was able to perform repetitive motion with loss of additional five degrees in each direction. The examiner stated that it was impossible to say whether pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups as the examination was performed in a clinical environment and not in the environment in which the Veteran stated his symptoms were exacerbated. The Veteran did exhibit muscle spasm, but this did not result in abnormal gait or abnormal spinal contour. There was no ankylosis. There was IVDS, but no episodes that were incapacitating. The Veteran used a cane to aid in ambulation. Imaging studies documented arthritis. The Veteran's thoracolumbar spine disorder impacted his ability to work in that he was unable to squat, kneel, stand for more than 10 to 15 minutes, walk for more than 20 to 30 minutes, lift more than 25 pounds, climb a ladder or climb more than one flight of stairs. The examiner stated it would be pure speculation to state what the functional decrease in ROM would be secondary to repetitive movements or flare-ups. The examiner also stated that it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time. Records from Coastal Chiropractic Center show that the Veteran received treatment for complaints of middle and lower back pain from August 2016 to October 2016. He reported that the pain moderately affects his daily activities and is aggravated by bending, twisting, lifting, getting up from a chair, and reaching. On examination, the Veteran was noted to have limitation of motion of the thoracolumbar spine, but specific ranges of motion were not documented. Additional VA outpatient treatment records show that the Veteran continued to be treated for complaints of low back pain. An examination was conducted by VA in February 2017. At that time, the diagnosis was lumbar spine strain with IVDS and radiculopathy involving both sciatic nerves. It was noted that the Veteran had flare-ups of the back that could be described as muscle spasms, stiffness and limited ROM. Initial ROM testing showed forward flexion to 40 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally and rotation to 20 degrees bilaterally. Pain was noted in all ranges except lateral rotation. The Veteran was able to perform repetitive use testing. Additional functional loss was further limited due to pain and lack of endurance with forward flexion to 30 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 10 degrees bilaterally. The examination was consistent with the Veteran's statements describing functional loss during a flare-up. During a flare-up, ROM was additionally described as being further restricted in extension, and lateral flexion to 0 degrees. The Veteran had localized tenderness, guarding or muscle spasm of the spine, and the guarding resulted in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. The Veteran did have symptoms of IVDS, but they did not result in episodes that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran used a cane for assistance in ambulation. The examiner stated that there was objective evidence of pain on passive ROM testing of the back and objective evidence of pain on non-weight bearing testing of the back. The Veteran was afforded a new VA examination in September 2021. The Veteran reported back symptoms of pain, stiffness, and decreased ROM. He reported difficulty standing and sitting for a long time, bending, and heavy lifting. The Veteran denied flare-ups. On active ROM testing, the Veteran had flexion to 40 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. All ROMs exhibited pain and there was pain with weightbearing. There was no additional limitation of motion following repetitive testing. The examiner found that pain, fatigability, weakness, and lack of endurance would significantly limit functional ability with repeated use over time. The examiner estimated that following repeated use, the Veteran would have flexion to 30 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The Veteran had guarding not resulting in an abnormal gait or abnormal spinal contour. He had full muscle strength in his lower extremities. The Veteran did not have ankylosis of the spine. He did not have IVDS. He reported using a back brace. The Board notes that this appeal has been ongoing since the Veteran's claim of increased rating on September 27, 2002. As such, the evaluation must be made on the basis of both the old and new criteria for evaluation of the spine. Regarding any evaluation under IVDS, the Board notes that the new criteria involving this disability became effective just prior to the date of the Veteran's claim. Where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The old law must be applied, however, prior to the effective date of the new law. See Green v. Brown, 10 Vet. App. 111, 116-19 (1997); see also 38 U.S.C. § 5110(g) (2012) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Prior to September 2003, the Veteran's low back disability would be evaluated based upon limitation of motion or symptoms of lumbosacral strain. Review of the evaluation dated in 2003 does not demonstrate moderate limitation of motion that is required for a rating in excess of 10 percent disabling. In this regard, it is noted that the ranges were essentially normal at that time. On examination in 2007, however, the limitation of motion of the Veteran's low back included forward flexion limited to 78 degrees, extension to 15 degrees, lateral flexion to 20 degrees, and rotation to 25 degrees. While this limitation is not productive of severe impairment, it does reach the criteria for moderate limitation of motion. As such, a 20 percent rating is shown to be warranted from November 29, 2007. This is despite the fact that a 20 percent rating is not shown to be warranted under the criteria that became effective in September 2003, which would require muscle spasm that caused alteration of gait or limitation of forward flexion to 60 degrees or less. On examination of September 10, 2015, the Veteran's low back disability was manifested by forward flexion less than 30 degrees. This alone warrants the 40 percent rating that was awarded as of that date. The Board notes that a rating in excess of 40 percent is not available under the old diagnostic codes in effect at the time of the Veteran's claim. For a rating in excess of 40 percent under the new diagnostic codes, unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS of at least six weeks in the past 12 months would have to be demonstrated. The record does not demonstrate ankylosis of the spine or incapacitating episodes of IVDS at any time during the period on appeal. As such, the criteria for a rating in excess of 40 percent since this date have not been demonstrated and the appeal for a further increase is denied. The evaluation of the Veteran's right and left lower extremity sciatic nerve radiculopathy, which is secondary to his low back disability, will be discussed separately below. There is no evidence that the Veteran has any other neurological impairment associated with his low back disability for which a separate evaluation could be assigned. For the above reasons, a higher rating for the Veteran's low back disability is not warranted for any period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to a rating in excess of 20 percent for right common peroneal nerve injury prior to September 10, 2015 and to a rating in excess of 40 percent thereafter is denied. The Veteran seeks a higher rating for his service-connected residuals of a right common peroneal nerve injury. Service connection for residuals of an injury of the right common peroneal nerve was established by rating decision of the RO in July 1991, at which time a 10 percent rating was assigned under DC 8521. The rating was increased to 20 percent effective in November 1999. The Veteran submitted a claim for an increased rating in September 2002. After examination in September 2015, the rating was increased to 40 percent, effective September 10, 2015, under the same diagnostic code. DC 8521 provides ratings for paralysis of the external popliteal nerve (common peroneal). This provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. An examination was conducted by VA in December 2003. At that time, the Veteran stated that he had residuals of the right common peroneal nerve injury that he had sustained since November 1988. He complained of tingling and numbness, abnormal sensation and constant pain. He did not undergo treatment for the disability. On examination, there was sensory dysfunction with findings of tingling and numbness of the anterior right leg. On examination, motor function was within normal limits. Reflexes were normal bilaterally. Sensory function was abnormal with findings of alleged tingling and numbness of the anterior right leg. The examiner noted that there were no functional impairments due to the Veteran's common peroneal nerve injury, but did not explain the basis for this conclusion. Another examination was conducted by VA on September 10, 2015. At that time, the diagnosis was neuralgia of the right leg, a residual of the right common peroneal nerve injury. The Veteran described constant pain of the right lower extremity, that was moderate in nature, as well as severe intermittent pain. There was moderate paresthesias and severe numbness. Muscle strength testing showed decreases with right knee extension, right ankle plantar flexion and ankle dorsiflexion. There was no muscle atrophy. Deep tendon reflexes were only 1 in the right ankle. Sensory examination showed decreases in the right lower leg, foot and toes. There were no trophic changes. The examiner described moderate incomplete paralysis of the right lower extremity. The Veteran's neuropathy was said to interfere with his ability to work in that he was unable to squat or kneel, stand for more than 10 to 15 minutes, or walk more than 20 to 30 minutes. The Veteran was afforded a new VA peripheral nerve examination in September 2021. The Veteran reported right lower extremity pain, numbness and tingling. The Veteran described symptoms of moderate intermittent pain and paresthesias bilaterally. He also described moderate right lower extremity numbness and mild left lower extremity numbness. The Veteran had full muscle strength and no muscle atrophy bilaterally. He had hypoactive reflexes bilaterally. He had decreased sensation to light touch bilaterally. He had no trophic changes. He was diagnosed with mild incomplete paralysis of the left and right sciatic nerve and mild incomplete paralysis of the common peroneal nerve. The examiner noted that the Veteran's ability to perform physical activities of employment is mild to moderately impaired due to limitations of standing, walking, and climbing. Prior to September 10, 2015, the Veteran's peroneal nerve injury residuals were described as being sensory in nature with complaints of numbness and tingling. Motor function and reflexes were within normal limits at a December 2003 VA examination. At a November 2007 VA back examination, motor and sensory functions were within normal limits, and the Veteran had hypoactive reflexes bilaterally. VA outpatient treatment records were also reviewed and are negative for any evidence that the Veteran's disability caused any significant functional impairment. The preponderance of this evidence weighs against a finding that the Veteran's common peroneal nerve disability can reasonably be characterized as "severe" prior to September 10, 2015. On September 10, 2015, the Veteran was first shown to manifest decreases in muscle strength and symptoms that were described by the examiner to be productive of moderate impairment. The Veteran's right lower extremity peroneal nerve disability has been rated from that date at the maximum for this disability (40 percent). While he has not specifically alleged that an extraschedular award is warranted, the Board notes that such an award is only warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Director of Compensation Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology with the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's right common peroneal nerve injury residuals are shown to include sensory, muscle strength and reflex impairment, which the examiner characterized as moderate in nature. This is specifically contemplated in the schedular rating criteria. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's right peroneal nerve disability, and no referral for an extraschedular rating is required. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to an effective date earlier than September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the right lower extremity is denied. 7. Entitlement to an effective date prior to September 10, 2015 for a grant of service connection for sciatic nerve radiculopathy of the left lower extremity is denied. As an initial matter, the Board notes that these issues were previously listed as entitlement to a compensable rating for sciatic nerve radiculopathy of the right and left lower extremities prior to September 10, 2015; however, as service connection is not in effect for radiculopathy of either lower extremity prior to September 10, 2015, the Board finds that the issue is more accurately characterized as whether entitlement to service connection for sciatic nerve radiculopathy of the right and left lower extremities is warranted prior to September 10, 2015. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400, (a), (b). The effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. Id. In this case, since the Veteran was granted separate disability ratings for sciatic nerve radiculopathy of the lower extremities as part of his pending claim for a higher rating for his service-connected low back disability, the earliest possible effective date of the grant of service connection for these disabilities is the date of the Veteran's increased ratings claim in September 2002. However, the preponderance of the evidence does not support a finding that the Veteran had a diagnosis of sciatic nerve radiculopathy in either extremity prior to September 10, 2015. At his VA back examination in December 2003, straight leg raising was negative bilaterally. The Veteran did report tingling and numbness in the right lower extremity; however, this was attributed to right common peroneal nerve neuralgia. There was no diagnosis of radiculopathy, to include sciatic nerve radiculopathy. At his November 2007 VA back examination, straight leg raising was negative. Motor function was within normal limits. Sensory function was within normal limits. The Veteran had hypoactive reflexes bilaterally. The examiner found that there were no signs of IVDS or permanent nerve root involvement. VA outpatient treatment records were reviewed and are negative for a diagnosis of sciatic nerve radiculopathy prior to September 10, 2015. In the absence of a diagnosed disability, the Board finds that entitlement to an effective date prior to September 10, 2015 for the grant of service connection for sciatic nerve radiculopathy of the right lower extremity and sciatic nerve radiculopathy of the left lower extremity must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 8. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is denied. 9. Entitlement to a rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity is denied. As previously noted, the Veteran has been assigned separate disability ratings for sciatic nerve radiculopathy of the right and left lower extremity as part of his claim for a higher rating for his service-connected low back disability. He was assigned a 20 percent disability rating in each extremity for moderate incomplete paralysis of the sciatic nerve, effective September 10, 2015. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). At the September 10, 2015 VA back examination, the examiner diagnosed radiculopathy of the lumbar region. The Veteran described pain that radiated from the mid-lower back that went down both legs. He reported stiffness, spasms, fatigability, weakness, and numbness and tingling in the buttocks and legs. There were signs of moderate radiculopathy affecting both lower extremities. The Veteran had diminished muscle strength in the bilateral lower extremities, without muscle atrophy. He had hypoactive reflexes in the right ankle, but otherwise normal reflexes in the bilateral lower extremities. He had decreased sensation to light touch in the right lower extremity. Straight leg raising was positive bilaterally. The Veteran described symptoms of moderate constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness bilaterally. The examiner diagnosed bilateral sciatic nerve root involvement, characterized as moderate. Records from Coastal Chiropractic Center show that the Veteran received treatment for complaints of middle and lower back pain from August 2016 to October 2016. He reported intense and "excruciating tingling, pins and needles, vibrating" symptoms that occurs more frequently down his right leg than his left leg. This symptom usually lasts 3 to 4 minutes, occurring about 3 to 4 times a week. Motor strength and reflexes in the lower extremities were normal. At the September 2021 VA back examination, the Veteran reported symptoms of numbness and tingling in the lower extremities. He reported difficulty standing and sitting for a long time, bending, and heavy lifting. The Veteran had full muscle strength in his lower extremities. He had hypoactive reflexes bilaterally. Sensation was decreased to light touch testing bilaterally. Straight leg testing was positive. The Veteran reported moderate intermittent pain and moderate paresthesias in the bilateral lower extremities. He also reported moderate numbness in the right lower extremity and mild numbness in the left lower extremity. The Veteran was diagnosed with radiculopathy affecting the sciatic nerve root. The Veteran was also afforded a VA peripheral nerve examination in September 2021. The Veteran reported right lower extremity pain, numbness and tingling. The Veteran described symptoms of moderate intermittent pain and paresthesias bilaterally. He also described moderate right lower extremity numbness and mild left lower extremity numbness. The Veteran had full muscle strength and no muscle atrophy bilaterally. He had hypoactive reflexes bilaterally. He had decreased sensation to light touch bilaterally. He had no trophic changes. He was diagnosed with mild incomplete paralysis of the left and right sciatic nerve and mild incomplete paralysis of the common peroneal nerve. Based on the above, the Board finds that the Veteran's sciatic nerve disability is primarily manifest by pain and sensory disturbances, with hypoactive reflexes and inconsistently documented muscle weakness in the lower extremities. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable diagnostic codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted. (Continued on the next page) In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings in excess of 20 percent for sciatic nerve radiculopathy of the right and left lower extremities. As the evidence of record persuasively weighs against ratings in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.