Citation Nr: 22015141 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 13-27 263 DATE: March 16, 2022 ORDER An initial rating in excess of 10 percent for a left knee disability based on limitation of motion is denied. A rating of 20 percent, but no greater, for left knee instability is granted, effective September 28, 2021, subject to the laws and regulations governing payment of monetary benefits. An initial rating in excess of 10 percent for a right knee disability based on limitation of motion is denied. A rating in excess of 10 percent for right knee instability is denied. A rating in excess of 10 percent for meniscus problems of the right knee is denied. An initial rating in excess of 10 percent prior to June 10, 2013, a rating in excess of 20 percent for the period between June 10, 2013 and May 31, 2016, and a rating in excess of 30 percent thereafter for a cervical spine (neck) disability is denied. An initial rating in excess of 10 percent prior to June 10, 2013, and in excess of 20 percent thereafter, for a lumbar spine (back) disability is denied. FINDINGS OF FACT 1. The Veteran's left knee disability has been shown to exhibit painful motion, however, the Veteran's range of motion for flexion has never been functionally limited to 30 degrees or less at any time over the period on appeal, and extension has not been functionally limited. 2. As of September 28, 2021, but not earlier, the objective medical evidence shows that the Veteran's left knee manifests in moderate instability. However, the objective medical evidence has not shown the Veteran to have patellar instability, or to have a prescription for a brace and an additional assistive device. 3. The Veteran's right knee disability has been shown to exhibit painful motion, however, the Veteran's range of motion for flexion has never been functionally limited to 30 degrees or less at any time over the period on appeal and no functional limitation of extension has been shown. 4. Based upon credible testimony of the Veteran, the Veteran's right knee disability has been shown to manifest slight instability, requiring the utilization of a knee brace due to occasional falls. However, objective medical evidence has not shown the Veteran to have subluxation, lateral instability, or patellar instability. Clinical testing has not shown any instability in the right knee. 5. The Veteran underwent a meniscectomy on his right knee in 2011, and his knee remains symptomatic. However, his right knee does not show dislocation with frequent episodes of joint locking, pain, and effusion. 6. Prior to June 10, 2013, forward flexion of the cervical spine functionally limited to less than 30 degrees was not shown; combined range of motion of the cervical spine less than 170 degrees was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the spine was not shown; and incapacitating episodes having a total duration of at least one week during a 12-month period were not shown. For the period beginning June 10, 2013 through May 31, 2016, forward flexion of the cervical spine has not been shown to be functionally limited to 15 degrees or less; ankylosis of the spine was not shown; and incapacitating episodes having a total duration of at least 4 weeks during a 12-month period were not shown. For the period beginning May 31, 2016 and thereafter, ankylosis of the spine was not shown, and incapacitating episodes having a total duration of at least 4 weeks during a 12-month period were not shown. 7. Prior to June 10, 2013, forward flexion of the thoracolumbar spine functionally limited to less than 60 degrees was not shown; combined range of motion of the thoracolumbar spine to less than 120 degrees was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the spine was not shown; and incapacitating episodes having a total duration of at least one week during a 12-month period were not shown. For the period beginning on June 10, 2013 and continuing thereafter, forward flexion of the thoracolumbar spine of 30 degrees or less was not shown; favorable or unfavorable ankylosis of the spine was not shown; and incapacitating episodes having a total duration of at least 4 weeks during a 12-month period were not shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left knee disability based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5003-5260. 2. The criteria for a rating of 20 percent, but no greater, and no earlier than September 28, 2021, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5257. 3. The criteria for an initial rating in excess of 10 percent for a right knee disability based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5010-5260. 4. The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5257. 5. The criteria for a rating in excess of 10 percent for meniscus problems of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5258. 6. The criteria for an initial rating in excess of 10 percent prior to June 10, 2013, a rating in excess of 20 percent for the period between June 10, 2013 and May 31, 2016, and a rating in excess of 30 percent thereafter for a neck disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5237, 5242. 7. The criteria for an initial rating in excess of 10 percent prior to June 10, 2013, and in excess of 20 percent thereafter, for a back disability have not been met. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1981 to December 1992. He also served on active duty in the Air National Guard from February 1980 to May 1980, October 2001 to May 2003, September 2005 to October 2005, March 2006 to May 2006, and November 2006 to March 2007. The matter is on appeal before the Board from an August 2010 rating decision. The Veteran provided testimony at a September 2015 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the appeal for further development in April 2016. In June 2020, the Board granted the Veteran a 10 percent rating for right knee instability and a 10 percent rating for meniscus problems of the right knee. However, the Board denied (1) an initial rating in excess of 10 percent for a right knee disability based on limitation of motion; (2) an initial rating in excess of 10 percent for a left knee disability; (3) an initial rating in excess of 10 percent prior to June 10, 2013, a rating in excess of 20 percent for the period between June 10, 2013 and May 31, 2016, and a rating in excess of 30 percent thereafter for a neck disability; and (4) an initial rating in excess of 10 percent prior to June 10, 2013, and in excess of 20 percent thereafter, for a back disability. The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), and in May 2021 the Court issued a Joint Motion for Partial Remand (JMPR). The Board remanded the appeal for further development in August 2021. The development has been completed, and the appeal has returned to the Board for further adjudication. This decision is being written in accordance with the guidance provided by the May 2021 JMPR. Increased Rating 1. Left Knee Disability Procedurally, the Veteran was granted service connection for a left knee disability with an initial evaluation of 10 percent in an August 2010 rating decision. In August 2011 the Veteran submitted a Notice of Disagreement (NOD), in which he disagreed with the initial 10 percent evaluation. Following the issuance of a Statement of the Case (SOC) in September 2013, the Veteran filed a Form 9 Appeal to the Board. In April 2016, the Board remanded the issue of an increased rating for the Veteran's left knee disability for further development. A Supplemental Statement of the Case (SSOC) was issued in July 2016. In June 2020, the Board denied the Veteran an initial rating in excess of 10 percent for his left knee disability. The Veteran appealed the June 2020 Board decision to CAVC. In a May 2021 JMPR, the portion of the June 2020 Board decision denying an initial rating in excess of 10 percent for the Veteran's left knee disability was vacated and remanded for further development. In accordance with the May 2021 JMPR, the Board remanded the issue for further development in August 2021. In a December 2021 rating decision, the Veteran was granted service connection for left knee instability with a 10 percent evaluation effective September 28, 2021, the date a VA examination showed evidence of instability. A SSOC was issued in December 2021. The issue is returned to the Board for further adjudication, and this decision is being written in accordance with the findings from the May 2021 JMPR. Applicable Law The Veteran's left knee disability is rated under DC 5003-5260 for limitation of flexion, and DC 5257 for instability. The normal range of motion (ROM) for the knee is from 140 to 0 degrees for extension, and from 0 to 140 for flexion. 38 C.F.R. § 4.71a, Plate II. DC 5260 evaluates the limitation of flexion for the knee. A noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 evaluates the limitation of extension for the knee. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating is assigned to extension limited to 20 degrees, a 40 percent rating is assigned for extension limited to 30 degrees, and a 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. DC 5257 evaluates recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The Board notes that on February 7, 2021, during the course of this appeal, revisions to the Schedule of Rating Disabilities that addresses the musculoskeletal system went into effect. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited impact in that they have only been in effect since February 7, 2021, however, they do change how instability and subluxation of the knee are rated. That is, the descriptor terms of slight, moderate, and severe have been removed, and replaced with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability, or from patellar instability. Regarding recurrent subluxation or lateral instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned with 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; or, (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. A 30 percent rating is assigned 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. Regarding patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note 1 provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 85 Fed. Reg. 76453, 76463. DC 5256 evaluates ankylosis of the knee, DCs 5258 and 5259 evaluate impairment of the semilunar cartilage (synonymous with the meniscus), DC 5262 evaluates impairment of the tibia and fibula, and DC 5263 evaluates genu recurvatum. The medical record does not document any of these conditions for the Veteran's left knee, and therefore these DCs are not applicable in conjunction with the Veteran's left knee evaluations and will not be further discussed. Analysis Over the period on appeal, the Veteran has undergone three VA examinations pertaining to his left knee disability, one in April 2010, one in May 2016, and one in September 2021. However, in the May 2021 CAVC JMPR, the May 2016 VA examination was found to be inadequate for rating purposes. As such, a recitation of the findings from the May 2016 VA examination will not be provided. At the April 2010 VA examination, the Veteran reported experiencing moderate pain in connection with his left knee disability. He relayed occasional swelling of his left knee. The Veteran's initial range of motion was from 0 to 115 degrees with pain exhibited at 115 degrees. The Veteran did not exhibit pain with extension. There was tenderness on palpation of the joint, and there was moderate crepitus on palpation of the left patella with range of motion activities. The Veteran underwent repetitive use testing, and there was not any additional functional loss or limitations to range of motion with repetitive use. Flare-ups were noted, however, there was no additional loss of motion, endurance, weakness, or instability of the left knee during flare-ups. The Veteran did not have a history of surgery, injections, arthritis, or bony tumors with regard to his left knee. The Veteran had normal strength, he did not have muscle atrophy, shin splints, or ankylosis. The Veteran did not have a meniscal condition, and he was not found to have recurrent subluxation or lateral instability. The Veteran denied the use of a cane or brace with his left knee. At the September 2021 VA examination, the Veteran reported having instability with his left knee. He believed that it began because of him putting more pressure on his left knee due to his right knee disability. He indicated that at times his knees were weak, causing him to lose his balance and fall. The Veteran's current symptoms were noted to be chronic knee pain, decreased range of motion, and instability. The Veteran did not report flare-ups with his left knee. He described having functional impairment with his knee's due to an inability to stand for very long, being unable to drive sometimes, being unable to cut the grass, and being unable to walk for exercise or ride a bicycle. The Veteran's initial range of motion was from 0 to 90 degrees. The examiner indicated that the Veteran exhibited pain with both flexion and extension, however, there was no additional limitation of motion specifically attributable to pain. Additionally, there was evidence of pain with weight-bearing, active motion, passive motion, and on rest/non-movement, however, the examiner again indicated that the Veteran's pain did not result in or cause functional loss. There was no evidence of crepitus, and there was no tenderness on palpation of the joint. The Veteran underwent repetitive use testing, but there was not any additional functional loss or limitations to range of motion with repetitive use. The examiner reported that the procured evidence, to include the Veteran's statements, did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit his functional ability with repeated use over time. The Veteran's range of motion with repetitive use over time would not be further limited. The examiner did indicate that the procured evidence suggested that pain would limit the Veteran's functional ability with flare-ups. The examiner estimated the Veteran's range of motion during a flare-up would be from 0 to approximately 80 degrees. The Veteran did not have muscle atrophy, ankylosis, shin splints, recurrent patellar dislocation, stress fractures, any other tibial or fibular impairments, or any meniscal conditions of the left knee. There were no indications the Veteran had ever had surgery on his left knee, nor any indications of arthritis. The examiner reported the Veteran to have recurrent subluxation and/or persistent instability in conjunction with his left knee. However, the Veteran had not had a ligament tear or sprain, he did not require a prescription for any assistive devices with ambulation, and there was not recurrent patellar instability. The examiner indicated that the Veteran's left knee instability was a progression of his service-connected disability, and estimated the Veteran's left knee instability to be of moderate severity. The Veteran did not report the utilization of any assistive devices, such as a brace or a cane. A review of the Veteran's VA and private treatment records does not provide any findings of any greater significance than those relayed above. In general, the Veteran's medical treatment records in relation to his left knee reflect complaints from the Veteran of pain. There are no reports of instability in the Veteran's treatment records in conjunction with his left knee. An August 28, 2017 record reflects that the Veteran was seen for left knee pain. The record contains a notation that the Veteran will be given a brace for patellofemoral pain syndrome, however, there is no indications of instability. In addition, it is not noted for which knee the brace is meant to be utilized. There are no further medical records that may possibly construe the utilization of a brace in conjunction with the Veteran's left knee disability. Based upon the foregoing, the Board finds that a rating in excess of 10 percent for a left knee disability, in conjunction with limitation of motion, is not warranted. Over the entire period on appeal, the Veteran's range of motion has not equated to a compensable range of motion. At its worst, during the September 2021 VA examination, his range of motion was estimated to be from 0 to 80 degrees during flare-ups, which is noncompensable. The Veteran's 10 percent evaluation for limitation of flexion is based upon evidence of painful motion. As such, a rating in excess of 10 percent for a left knee disability due to a limitation of flexion is not warranted. In addition, a separate rating for limitation of extension is not warranted. At no time over the entire period on appeal has the Veteran's extension been limited to a compensable degree. The Veteran's extension during both VA examinations was evaluated to be to 0 degrees, which includes with flare-ups as estimated in the September 2021 VA examination, which is noncompensable. As the Veteran's pain has been taken into account in his ratings for limitation of motion throughout the period on appeal, an additional rating based upon limitation of motion for extension is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's right knee disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). It is the Veteran's painful motion with functional loss which provides the Veteran with his 10 percent rating for his left knee disability in relation to limitation of flexion. As outlined above, even when factoring limitations from pain, lack of endurance, repetitive motion, and flare-ups, the Veteran's motion was limited at most to 80 degrees of flexion. As such, it has not been shown that functional limitation limited the Veteran's range of motion to an extent as to warrant an increased rating. While increased ratings based upon limitations of motion are not warranted, a rating of 20 percent, but no greater, from September 28, 2021 for instability is warranted. The Veteran was first found to have left knee instability during the September 28, 2021 VA examination, which the VA examiner indicated to be of moderate severity. Under the old regulations, moderate instability warrants a 20 percent evaluation. However, there are no indications that a rating in excess of 20 percent is warranted at any time over the entirety of the appeal period, nor are there any indications that the rating should be warranted prior to September 28, 2021. To begin, a rating in excess of 20 percent requires a finding of severe instability under the regulations in effect when the Veteran filed his claim, and under the new regulations a prescription is required for both a brace and an additional assistive device. The Veteran has never been prescribed both a brace and an additional assistive device for instability, and there is no objective medical evidence within the Veteran's record to even suggest his instability to be severe. As such, a rating in excess of 20 percent for the Veteran's left knee instability is not warranted. Nor is the evaluation warranted prior to the September 28, 2021 VA examination. Other than the September 28, 2021 VA examination, there is no objective medical evidence of left knee instability within any of the Veteran's VA or private treatment records. In addition, there are no specific reports made by the Veteran of left knee instability prior to September 28, 2021. While the Veteran's record reflects that he reported falling due to his right knee during his September 2015 Board hearing, the Veteran did not specifically report left knee instability. Rather, at the September 2015 Board hearing, the Veteran had explained that he had begun wearing a knee brace on his left knee for added support and stability due to his right knee becoming weaker and causing him to fall. The Veteran did not report that his left knee was causing him to fall. The Board previously granted the Veteran a 10 percent evaluation for right knee instability based entirely upon the Veteran's reports of instability and falls during the September 2015 Board hearing. Regardless of the knee the previous 10 percent evaluation for instability was granted for, the Veteran has already been provided with an evaluation for instability based solely upon his reports, without any medical findings of instability prior to September 28, 2021. As the Veteran's record does not contain any objective medical evidence of instability in conjunction with the Veteran's left knee disability prior to September 28, 2021, in addition to there being no specific reports of left knee instability, the grant of the Veteran's 20 percent evaluation for left knee instability is not warranted prior to September 28, 2021. Accordingly, for the entire period on appeal a rating in excess of 10 percent for a left knee disability based on limitation of motion is denied. However, a rating of 20 percent, but no greater, for left knee instability from September 28, 2021 is granted. 2. Right Knee Disability Procedurally, the Veteran was granted service connection for a right knee disability with an initial evaluation of 10 percent in an August 2010 rating decision. In August 2011 the Veteran submitted a NOD, in which he disagreed with the initial 10 percent evaluation. In a June 2011 rating decision, the Veteran was provided with a temporary 100 percent evaluation for his right knee after undergoing surgery in 2011. See 38 C.F.R. § 4.30. Following the issuance of a SOC in September 2013, the Veteran filed a Form 9 Appeal to the Board. In April 2016, the Board remanded the issue of an increased rating for the Veteran's right knee disability for further development. A SSOC was issued in July 2016. In June 2020, the Board granted the Veteran a 10 percent evaluation for right knee instability, and a 10 percent evaluation for right knee meniscus problems, but denied the Veteran an initial rating in excess of 10 percent for his right knee disability based on limitation of motion. The Veteran appealed the June 2020 Board decision to CAVC. In a May 2021 JMPR, the portion of the June 2020 Board decision denying (1) an initial rating in excess of 10 percent for the Veteran's right knee disability based on limitation of motion, (2) a rating in excess of 10 percent for right knee meniscus problems, and (3) a rating in excess of 10 percent for right knee instability, was vacated and remanded for further development. In accordance with the May 2021 JMPR, the Board remanded the issues for further development in an August 2021 decision. Following the requested development, a SSOC was issued in December 2021. The issues are returned to the Board for further adjudication, and this decision is being written in accordance with the findings from the May 2021 JMPR. Applicable Law The Veteran's right knee disability is rated under DC 5010-5260 for limitation of flexion, and DC 5257 for both right knee instability and right knee meniscus problems. DC 5260 for limitation of flexion, DC 5261 for limitation of extension, and DC 5257 for recurrent subluxation and lateral instability are pertinent to the analysis of the Veteran's right knee disability. See the above left knee section for a detailed description of each of these DCs. DCs 5258 and 5259 for meniscal problems are also pertinent. DCs 5258 and 5259 evaluate impairment of the semilunar cartilage (synonymous with the meniscus). A 10 percent rating is assigned for removal of the meniscus that is symptomatic. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, DCs 5258, 5259. As previously noted, DC 5256 evaluates ankylosis of the knee, DC 5262 evaluates impairment of the tibia and fibula, and DC 5263 evaluates genu recurvatum. The medical record does not document any of these conditions for the Veteran's right knee, and therefore these DCs are not applicable and will not be further discussed. Analysis Over the period on appeal, the Veteran has undergone five VA examinations pertaining to his right knee disability, one in April 2010, one in April 2011, one in June 2013, one in May 2016, and one in September 2021. However, in the May 2021 CAVC JMPR, the May 2016 VA examination was found to be inadequate for rating purposes. As such, a recitation of the findings from the May 2016 VA examination are not provided. At the April 2010 VA examination, the Veteran reported experiencing moderate pain in connection with his right knee disability. He relayed intermittent stiffness and occasional swelling of his right knee. The Veteran's initial range of motion was from 0 to 115 degrees with pain exhibited at 115 degrees. The Veteran did not exhibit pain with extension. There was tenderness on palpation of the joint, and there was mild crepitus on palpation of the left patella with range of motion activities. The Veteran underwent repetitive use testing, and there was not any additional functional loss or limitations to range of motion with repetitive use. Flare-ups were noted, however, there was no additional loss of motion, endurance, weakness, or instability of the left knee during flare-ups. The Veteran did not have a history of surgery, injections, arthritis, or bony tumors with his right knee. The Veteran had normal strength, he did not have muscle atrophy, shin splints, or ankylosis. The Veteran did not have a meniscal condition, and he was not found to have recurrent subluxation or lateral instability. The Veteran denied the use of a cane or brace for his right knee. At the April 2011 VA examination, the Veteran reported that he has daily discomfort in a sleeve-like distribution about his right knee. There was swelling of the knee. The Veteran indicated daily use of a knee brace. It was noted that the Veteran had undergone a meniscectomy on his right knee in January 2011. He reported a level of discomfort of a three out of ten that increases to an eight with increased use. He denied subluxation, dislocation, instability, bony cancers, and ankylosing areas. His strength and reflexes were normal. There was tenderness on palpation of the knee in a sleeve-like distribution with some slight swelling. There was no crepitus. The Veteran's initial range of motion was from -5 to 90 degrees. The examiner indicated that there was no additional weakness, fatigability, discoordination, additional restricted range of motion, or loss of joint functions with repetitive use testing. At the June 2013 VA examination, the Veteran reported that his knee continued to be painful. He reported having undergone physical therapy. He explained that his knee hurts daily, that he regularly wears a brace, and that it gives out on occasion. The Veteran denied flare-ups. The Veteran's initial range of motion was from 0 to 70 degrees. The Veteran was noted to have functional impairment of his right knee in the form of less movement than normal, weakened movement, excess fatiguability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. However, there was no additional limitations to the Veteran's range of motion following repetitive use testing. There was tenderness on palpation of the joint. The Veteran's muscle strength was a four out of five. Joint stability tests were normal, and there was no history of patellar subluxation or dislocation. The Veteran did not have muscle atrophy, ankylosis, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairments. The Veteran was noted to have had a meniscal tear and to have undergone a meniscectomy in January 2011. Residuals from the meniscectomy were noted to be pain. Imaging studies of the knee were noted to be available that did not document arthritis. At the September 2021 VA examination, the Veteran reported that at times his knees are weak, causing him to lose his balance and fall. The Veteran's current symptoms were noted to be chronic knee pain, decreased range of motion, and instability. The Veteran explained having flare-ups of his right knee as pertaining to his pain level with a decrease in range of motion. His flare-ups are precipitated by overuse, and occur once to twice monthly and last for about two days. He described having functional impairment with his knees due to an inability to stand for very long, being unable to drive sometimes, being unable to cut the grass, and being unable to walk for exercise or ride a bicycle. The Veteran demonstrated range of motion from 0 to 90 degrees. The examiner indicated that the Veteran exhibited pain with both flexion and extension, however, there was no additional limitation of motion specifically attributable to pain. Additionally, there was evidence of pain with weight-bearing, active motion, and passive motion, however, the examiner again indicated that the Veteran's pain did not result in or cause functional loss. There was no evidence of crepitus, and there was no tenderness on palpation of the joint. The Veteran underwent repetitive use testing, and there was not any additional functional loss or limitations to range of motion with repetitive use. The examiner reported that the procured evidence, to include the Veteran's statements, did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit the Veteran's functional ability with repeated use over time. The Veteran's range of motion with repetitive use over time would not be further limited. The examiner did indicate that the procured evidence would suggest that pain would limit the Veteran's functional ability with flare-ups. The examiner estimated the Veteran's range of motion during a flare-up to be from 0 to 80 degrees. The Veteran did not have muscle atrophy, ankylosis, shin splints, recurrent patellar dislocation, stress fractures, or any other tibial or fibular impairments of the right knee. The Veteran was noted to have a meniscal tear with frequent episodes of joint pain, and to have undergone a meniscectomy in 2011. There were no indications of arthritis. In relation to the Veteran's right knee, the examiner indicated the Veteran did not have recurrent subluxation or persistent instability, he did not have a ligament tear or sprain, he did not require a prescription for any assistive devices with ambulation, and there was not recurrent patellar instability. In addition, the Veteran did not report the utilization of any assistive devices, such as a brace or a cane. A review of the Veteran's VA and private treatment records does not provide any findings of any greater significance than those relayed above. In general, the Veteran's medical treatment records in relation to his right knee reflect complaints from the Veteran of pain and occasional instability. In December 2012 the Veteran first reported that he had some buckling of his right knee that was worse with going up stairs, and that for the last several years he had always worn a knee brace. In addition, at the September 2015 Board hearing, the Veteran reported in conjunction with his right knee, that he wears a knee brace, that he has fallen a couple of times, that he has gotten weaker, that his balancing has gotten worse, and that it is harder for him to get around. Based upon the foregoing, the Board finds that a rating in excess of 10 percent for a right knee disability, in conjunction with limitation of motion, is not warranted. Over the entire period on appeal, the Veteran's range of motion has not equated to a compensable range of motion. At its worst, during the June 2013 VA examination, the Veteran's initial range of motion was from 0 to 70 degrees, and there were no additional limitations to the Veteran's range of motion found, which is noncompensable. In the September 2021 VA examination, the Veteran's range of motion at its worst during flare-ups was estimated to be from 0 to 80 degrees, which is again noncompensable. The Veteran's 10 percent evaluation for limitation of flexion is based upon evidence of painful motion. As such, a rating in excess of 10 percent for a right knee disability due to a limitation of flexion is not warranted. In addition, a separate rating for limitation of extension is not warranted. At no time over the entire period on appeal has the Veteran's extension been limited to a compensable degree. The Veteran's extension during three of the VA examinations was evaluated to be to 0 degrees, and to -5 degrees during one examination, which includes with flare-ups as estimated in the September 2021 VA examination, which equates to a noncompensable rating. As the Veteran's pain has been taken into account in his ratings for limitation of motion throughout the period on appeal, an additional rating based upon limitation of motion for extension is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's right knee disability. However, it is the Veteran's painful motion with functional loss which provides the Veteran with his 10 percent rating for his right knee disability in relation to limitation of flexion. As outlined above, even when factoring limitations from pain, lack of endurance, repetitive motion, and flare-ups, the Veteran's motion was limited at most to 70 degrees of flexion. As such, it has not been shown that functional limitation limited the Veteran's range of motion to an extent as to warrant an increased rating. In addition, a rating in excess of 10 percent for right knee instability is not warranted. At no time over the period on appeal has the Veteran ever been found to have instability of the right knee. However, he has reported in conjunction with his right knee, occasional falls, knee buckling, and the regular utilization of a knee brace. As such, under the old regulations the Veteran's 10 percent evaluation for slight is appropriate, however, as there is no objective medical evidence of instability a higher 20 percent evaluation for moderate instability under the old regulations is not warranted. Under the new regulations, while the Veteran did have a meniscal tear and underwent a meniscectomy in 2011, and his treatment records indicate that the Veteran has been provided with a brace in conjunction with his right knee disability, there is no objective evidence within either his VA or private treatment records, or his VA examinations, to indicate that the Veteran actually experiences recurrent subluxation, lateral instability, or patellar instability. As such, a rating in excess of 10 percent for right knee instability under either the old or the new regulations is not warranted. Also, a rating in excess of 10 percent for right knee meniscus problems is not warranted. At no time over the period on appeal, has the Veteran's right knee meniscal problems shown dislocation with frequent episodes of locking, pain, and effusion into the knee. Here, the Veteran underwent a surgery on his right meniscus in 2011, and both the June 2013 and September 2021 VA examinations reflect that the Veteran's meniscus continues to be symptomatic with residuals of pain. Accordingly, the Veteran's 10 percent rating for removal of the meniscus that is symptomatic is appropriate under DC 5258. However, as the meniscus surgery appears to have corrected the dislocation of the semilunar cartilage and neither locking nor effusion appears to be present, a rating of 20 percent under DC 5259 is not warranted. Accordingly, for the entire period on appeal a rating in excess of 10 percent for a right knee disability pertaining to limitation of motion is denied, a rating in excess of 10 percent for right knee instability is denied, and a rating in excess of 10 percent for meniscus problems of the right knee is denied. 3. Neck Disability Procedurally, the Veteran was granted service connection for a neck disability with an initial evaluation of 10 percent in an August 2010 rating decision. In August 2011 the Veteran submitted a NOD, in which he disagreed with the initial 10 percent evaluation. Following the issuance of a SOC in September 2013, the Veteran filed a Form 9 Appeal to the Board. In an October 2013 rating decision, the Veteran was granted a 20 percent evaluation for his neck disability effective June 10, 2013, the date of a VA examination that provided evidence of an increase in the severity of the Veteran's condition. In April 2016, the Board remanded the issue of an increased rating for the Veteran's neck disability for further development. In a July 2016 rating decision, the Veteran was granted a 30 percent evaluation for his neck disability effective May 31, 2016, the date of a VA examination that provides evidence of further increase in the severity of the Veteran's condition. A Supplemental Statement of the Case (SSOC) was issued in July 2016. In June 2020, the Board denied the Veteran an initial rating in excess of 10 percent prior to June 10, 2013, a rating in excess of 20 percent for the period between June 10, 2013 and May 31, 2016, and a rating in excess of 30 percent thereafter for his neck disability. The Veteran appealed the June 2020 Board decision to CAVC. In a May 2021 JMPR, the portion of the June 2020 Board decision denying an initial rating in excess of Veteran an initial rating in excess of 10 percent prior to June 10, 2013, a rating in excess of 20 percent for the period between June 10, 2013 and May 31, 2016, and a rating in excess of 30 percent thereafter, for the Veteran's neck disability was vacated and remanded for further development. In accordance with the May 2021 JMPR, the Board remanded the issue for further development in an August 2021 decision. Following the requested development, a SSOC was issued in December 2021. The issue is returned to the Board for further adjudication, and this decision is being written in accordance with the findings from the May 2021 JMPR. Applicable Law The Veteran's neck disability is currently rated under DC 5237, and was previously rated under DC 5242. Cervical spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. 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. 38 C.F.R. § 4.71a, DC 5243, Note 1. Over the entirety of the periods on appeal, the Veteran has undergone four VA examinations pertaining to his neck disability. At no time during the entire periods on appeal, has the Veteran been found to have IVDS with incapacitating episodes, been prescribed bed rest to treat his neck disability, or reported any incapacitating episodes pertaining to his neck disability. As such, the Veteran's neck disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine is not greater than 170 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 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. Effective February 7, 2021, the DCs pertaining to the cervical spine were amended. The applicable rating criteria for the DCs regarding the spine did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). Analysis A review of the record over the entirety of the periods on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. For the appeal period prior to June 13, 2013, the Veteran's forward flexion of the cervical spine has never been limited to 30 degrees or less, his combined range of motion of the cervical spine has never been limited to 170 degrees or less, and he has never been found to exhibit muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For the appeal period from June 13, 2013 to May 31, 2016, the Veteran's forward flexion of the cervical spine has never been limited to 15 degrees or less. Prior to June 13, 2013 The Veteran underwent a VA examination in April 2010, at which he reported experiencing intermittent pain with stiffness occurring every four months in his lower neck. The Veteran's forward flexion was limited to 45 degrees, extension was limited to 50 degrees, left and right lateral flexion was limited to 40 degrees, and left and right lateral rotation was limited to 50 degrees. The Veteran was noted to exhibit pain with forward flexion at 45 degrees and with right lateral flexion at 40 degrees. The examiner noted tenderness to palpation of the lower lumbar spine, but did not note tenderness in the cervical spine upon palpation. The Veteran reported mild flare-ups, but denied any muscle spasms, loss of motion, loss of endurance, radiculopathies, or focal neurologic deficits from his neck condition. There was no additional weakness or instability of the neck reported with flare-ups. The Veteran reported that with flare-ups his neck's forward flexion might be limited to 20 degrees, but that he was able to work through the pain and stretch out his neck, which eased the symptoms. The examiner found that there was not any additional weakness, fatigability, dyscoordination, additional restrictive range of motion, or functional impairment following repetitive use testing. The Veteran was not found to have IVDS, nor was he found to have arthritis of his neck. The Veteran denied the use of any assistive devices for his neck disability. A review of the Veteran's VA and private treatment records, for the period on appeal prior to June 13, 2013, does not provide any findings of any greater cervical spine restriction than those recorded at the 2010 VA examination. Based upon the foregoing, a rating in excess of 10 percent prior to June 13, 2013 is not warranted. At the Veteran's April 2010 VA examination, the Veteran's forward flexion was limited to 45 degrees, which is noncompensable. However, his combined range of motion equated to 275, which aligns with a ten percent evaluation. The Board acknowledges the Veteran's report of having his forward flexion being limited to 20 degrees with flare-ups, however, his report of the precise degree of forward flexion that he is limited to during flare-ups is not objective medical evidence. While the Veteran is competent to report a limitation of motion with flare-ups, there is no objective medical evidence of record to show that his motion is actually limited to such a degree during a flare-up. That is, there are no indications within the Veteran's record during the appeal period prior to June 13, 2013, that his forward flexion during a flare-up has been measured with a goniometer, nor are there any specific estimates provided by a medical professional. In addition, the Veteran only reported experiencing mild flare-ups where there was no additional weakness or instability of his neck, and he denied any muscle spasms, loss of motion, and loss of endurance. To then state that his forward flexion would be limited to 20 degrees during a flare-up, a difference of 25 degrees from his initial range of motion of 45 degrees with forward flexion, would indicate more than a mild flare-up, which is not indicated by the Veterans reports or denials. Thus, the Veteran's report of a limitation with forward flexion to 20 degrees is not an appropriate measurement. Additionally, if findings are utilized from another VA examination to estimate the possible degree of difference that the Veteran may have from an initial measurement to an estimated measurement during a flare-up, and those findings are extrapolated to estimate where the Veteran's degree of forward flexion with a flare-up may be limited to during the appeal period prior to June 13, 2013, the Veteran's forward flexion would not be shown to be limited by an additional 25 degrees. For example, in the Veteran's September 2021 VA examination, the difference between his initial range of motion, 30 degrees, and the estimate of his range of motion with either repeated use over time or flare-ups, 25 degrees, is five degrees. If the difference of five degrees is utilized with the findings from the April 2010 VA examination, then it may be estimated that the Veteran's forward flexion with flare-ups would be limited to 40 degrees, which aligns with a 10 percent evaluation. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's cervical strain. However, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Even when limitations from pain, weakness, fatiguability, incoordination, or repetitive use are factored in, the Veteran's limitation of motion would not be limited to an extent to warrant a rating in excess of 10 percent. As such, a rating in excess of 10 percent for the Veteran's neck disability, for the period on appeal prior to June 13, 2013, is denied. From June 13, 2013 to May 31, 2016 The Veteran underwent a VA examination in June 2013, at which he reported that since his last VA examination he had experienced more right-sided neck pain that radiated down the right side of his back. The Veteran did not report having flare-ups of his neck disability. The Veteran's forward flexion was limited to 30 degrees, extension was limited to 45 degrees, right and left lateral flexion was limited to 30 degrees, and right and left lateral rotation was limited to 40 degrees. Subjective evidence of pain was noted for all ranges of motion. The examiner did not find there to be any additional limitations of range of motion after repetitive use testing, but did find there to be functional loss after repetitive use that included excess fatigability, pain on movement, and interference with sitting, standing, and/or weight bearing. The examiner found the Veteran to have localized tenderness upon palpation of the joint. In addition, the examiner reported the Veteran to have guarding or muscle spasms of the neck, but noted that it did not result in an abnormal gait or spinal contour. The Veteran had normal muscle strength, no muscle atrophy, normal deep tendon reflexes, normal sensations to light touch, no radicular pain, and no ankylosis. The Veteran was not found to have IVDS, but was noted to have arthritis in his neck. The Veteran did not report the utilization of any assistive devices for his neck. A review of the Veteran's VA and private treatment records, for the period on appeal from June 13, 2013 to May 31, 2016, does not provide any findings of any greater significance than those recorded at the 2013 VA examination. In general, they reflect a few complaints of neck pain. Based upon the foregoing, a rating in excess of 20 percent, for the period on appeal from June 13, 2013 to May 31, 2016 is not warranted. At the June 2013 VA examination, the Veteran's forward flexion was limited to 30 degrees, which aligns with a 20 percent rating. The Veteran did not report any flare-ups, and the examiner did not find there to be any additional limitations to his range of motion after repetitive use. The Veteran was noted to have some functional loss after repetitive use; however, it was not to the extent or severity to warrant a higher rating based upon functional loss. That is, the findings at the June 2013 VA examination did not suggest that the forward flexion in the Veteran's cervical spine was functionally limited to 15 degrees or less. In addition, if the findings from the September 2021 VA examination, showing a five-degree difference in the Veteran's initial range of motion and his range of motion with flare-ups or repetitive use over a period of time, were extrapolated and utilized here, the Veteran's range of motion would not be decreased to an extent to be functionally limited to 15 degrees or less. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's neck disability. However, Even when limitations from pain, weakness, fatiguability, incoordination, or repetitive use are factored in, the Veteran's limitation of motion would not be limited to an extent to warrant a rating in excess of 20 percent. Accordingly, a rating in excess of 20 percent for the Veteran's neck disability, for the period on appeal from June 13, 2013 to May 31, 2016, is denied. From May 31, 2016 The Veteran underwent a VA examination on May 31, 2016, however, in the May 2021 CAVC JMPR the examination was found to be inadequate for rating purposes. As such, a recitation of the information will not be provided. The Veteran underwent a VA examination in September 2021, at which he was not found to have either favorable or unfavorable ankylosis of the cervical spine, or unfavorable ankylosis of the entire spine. The Veteran's initial range of motion for forward flexion was limited to 30 degrees, and at its worst, it was estimated to be limited to 25 degrees with both flare-ups and with repeated use over time. In addition, the Veteran's VA and private treatment records do not provide any findings of ankylosis. Even considering functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 for the Veteran's neck disability, the Board finds that ankylosis is not approximated. However, the Veteran's range of motion shown at the September 2021 VA examination actually aligns with a 20 percent evaluation, however, the Board will not disturb his current 30 percent evaluation. As such, a rating in excess of 30 percent for the Veteran's neck disability, for the period on appeal from May 31, 2016, is denied. The Board notes that in addition to orthopedic limitations, a separate rating may also be assigned for neurologic impairment stemming from a spinal disability. Here, however, no such impairment has been shown. For example, at the September 2021 VA examination, the examiner found no cervical radiculopathy and no other neurologic impairment to be present. It has not been argued to the contrary, including in the JMPR. Accordingly, a separate rating for neurologic impairment is not warranted. 4. Back Disability Procedurally, the Veteran was granted service connection for a back disability with an initial evaluation of 10 percent in an August 2010 rating decision. In August 2011 the Veteran submitted a NOD, in which he disagreed with the initial 10 percent evaluation. Following the issuance of a SOC in September 2013, the Veteran filed a Form 9 Appeal to the Board. In an October 2013 rating decision, the Veteran was granted a 20 percent evaluation for his back disability effective June 10, 2013, the date of a VA examination that provides evidence of an increase in the severity of the Veteran's condition. In April 2016, the Board remanded the issue of an increased rating for the Veteran's back disability for further development. A Supplemental Statement of the Case (SSOC) was issued in July 2016. In June 2020, the Board denied the Veteran an initial rating in excess of 10 percent prior to June 10, 2013, and a rating in excess of 20 percent thereafter for his back disability. The Veteran appealed the June 2020 Board decision to CAVC. In a May 2021 JMPR, the portion of the June 2020 Board decision denying an initial rating in excess of 10 percent prior to June 10, 2013, and a rating in excess of 20 percent thereafter, for the Veteran's back disability, was vacated and remanded for further development. In accordance with the May 2021 JMPR, the Board remanded the issue for further development in an August 2021 decision. Following the requested development, a SSOC was issued in December 2021. The issue is returned to the Board for further adjudication, and this decision is being written in accordance with the findings from the May 2021 JMPR. Applicable Law The Veteran's back disability is rated under Diagnostic Code 5242. Thoracolumbar spine disabilities are also rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Over the entirety of the periods on appeal, the Veteran has undergone four VA examinations pertaining to his back disability. At no time during the entire periods on appeal, has the Veteran been found to have IVDS with incapacitating episodes, been prescribed bed rest to treat his back disability, or reported any incapacitating episodes pertaining to his back disability. As such, the Veteran's back disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. See the above neck disability section for a detailed description of the IVDS formula for rating. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. The applicable rating criteria for the DCs regarding the spine did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). Analysis A review of the record over the entirety of the periods on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. For the appeal period prior to June 10, 2013, the Veteran's forward flexion of the thoracolumbar spine has never been limited to 60 degrees or less, his combined range of motion of the thoracolumbar spine has never been limited to 120 degrees or less, and he has never been found to exhibit muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For the appeal period from June 13, 2013, the Veteran's forward flexion of the thoracolumbar spine has never been limited to 30 degrees or less. Prior to June 13, 2013 The Veteran underwent a VA examination in April 2010, at which he reported experiencing chronic lower back pain with an intensity of moderate. He reported experiencing daily stiffness in his back, but noted that it would improve during the day. The Veteran's forward flexion was limited to 70 degrees, extension was limited to 10 degrees, left and right lateral flexion was limited to 20 degrees, and left and right lateral rotation was limited to 35 degrees. The examiner noted the Veteran to exhibit pain at the extreme end of all range of motion measurements for the lower lumbar spine. The Veteran reported flare-ups that come about following prolonged sitting, standing, and lifting, and stated his forward flexion was limited to approximately 45 degrees during a flare-up of his back. He denied any additional weakness or instability of his back with flare-ups and stated that during flare-ups he will modify his activities, which eases the symptoms. He denied any muscle spasms, loss of motion, loss of endurance, radiculopathies, bowel or bladder problems, or focal neurologic deficits from his back condition. The examiner found that there was not any additional weakness, fatigability, dyscoordination, additional restrictive range of motion, or functional impairment following repetitive use testing. The Veteran was not found to have IVDS, nor was he found to have arthritis of his back. The Veteran denied the use of any assistive devices for his back disability. A review of the Veteran's VA and private treatment records, for the period on appeal prior to June 13, 2013, does not provide any findings of any greater significance than those described in the above VA examination. In general, they reflect a few complaints pertaining to stiffness and pain in the Veteran's back, but do not address any range of motion testing. Based upon the foregoing, a rating in excess of 10 percent prior to June 13, 2013 is not warranted. At the Veteran's April 2010 VA examination, the Veteran's forward flexion was limited to 75 degrees, which aligns with a 10 percent evaluation. The Board acknowledges the Veteran's report of having his forward flexion being limited to 45 degrees with flare-ups, however, his report of the precise degree of forward flexion that he is limited to during flare-ups is not objective medical evidence. While the Veteran is competent to report a limitation of motion with flare-ups, there is no objective medical evidence of record to show that his motion was actually limited to such a degree during a flare-up. That is, there are no indications within the Veteran's record during the appeal period prior to June 13, 2013, that his forward flexion during a flare-up was measured with a goniometer, nor are there any specific estimates provided by a medical professional. In addition, he denied any additional weakness or instability of his back with flare-ups, and stated that his symptoms are eased by modifying his activities. He also denied muscle spasms, loss of motion, and loss of endurance in conjunction with his back disability. While the examiner noted the Veteran to exhibit pain with all ranges of motion of the lower lumbar spine, it was only at the extreme end of the range of motion. Following repetitive use testing, the examiner found that there was not any additional weakness, fatigability, dyscoordination, additional restrictive range of motion, or functional impairment. To then state that his forward flexion would be limited to 45 degrees during a flare-up, a difference of 30 degrees from his demonstrated range of motion of 75 degrees of forward flexion, would indicate a flare-up of greater severity than mild, which is not indicated by the Veterans reports or denials. Thus, the Veteran's report of a limitation with forward flexion to 45 degrees is not an appropriate measurement. Additionally, if findings are utilized from another VA examination to estimate the possible degree of difference that the Veteran may have from an initial measurement to an estimated measurement during a flare-up, and those findings are extrapolated to estimate where the Veteran's degree of forward flexion with a flare-up may be limited to during the appeal period prior to June 13, 2013, the Veteran's forward flexion would not be shown to be limited by an additional 30 degrees. For example, in the Veteran's September 2021 VA examination, the difference between his initial range of motion, 50 degrees, and the estimate of his range of motion with flare-ups, 45 degrees, is five degrees. If the difference of five degrees is utilized with the findings from the April 2010 VA examination, then it may be estimated that the Veteran's forward flexion with flare-ups would be limited to 70 degrees, which still aligns with a 10 percent evaluation. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's cervical strain. However, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). That is, even when limitations from pain, weakness, fatiguability, incoordination, or repetitive use are factored in, the Veteran's limitation of motion would not be limited to an extent to warrant a rating in excess of 10 percent. As such, a rating in excess of 10 percent for the Veteran's back disability, for the period on appeal prior to June 13, 2013, is denied. From June 13, 2013 The Veteran underwent three VA examinations pertaining to his back disability during the period on appeal from June 13, 2013. However, the May 31, 2016 VA examination was found to be inadequate for rating purposes in the May 2021 CAVC JMPR. As such, a recitation of the findings from the May 2016 VA examination shall not be included. The other two examinations show ankylosis of the lumbar spine to be absent. Additionally, forward flexion of the Veteran's thoracolumbar spine was not shown to be limited to 30 degrees or less at either of the examinations. The Veteran's range of motion for forward flexion was limited at its most to 40 degrees during the June 2013 examination, and 45 degrees during the September 2021 examination. These findings take into account pain on motion, repetitive use, repeated use over time, and flare-ups. Thus, at its worst, the Veteran's forward flexion was limited to 40 degrees. The VA examiner in the June 2013 VA examination found the Veteran's forward flexion to exhibit pain with forward flexion at 40 degrees. The Veteran did not report flare-ups at his June 2013 VA examination, and there were no indications to suggest that his range of motion would be limited to 30 degrees or less with repetitive use over time. The VA examiner at the September 2021 VA examination found that the Veteran's forward flexion would be limited to 45 degrees due to pain with flare-ups. In listing these degrees of limitation motion, the Board has cited the greatest degree of limitation motion given, such as during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Even when doing so, the Veteran's limitation of motion did not more nearly approximate the next-higher disability level. A review of the Veteran's VA and private treatment records does not provide any findings of any greater significance than those recorded at the above VA examinations. In general, they reflect complaints of pain in the Veteran's lower back with treatments for his back disability to include physical therapy and injections. However, they do not show any findings of range of motion for forward flexion being limited to 30 degrees, or any indications of ankylosis. As the evidence of record from June 13, 2013 does not show either favorable or unfavorable ankylosis to be present, or the Veteran's forward flexion to be limited to 30 degrees or less, a rating in excess of 20 percent for the Veteran's back disability prior to June 13, 2013 is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's back disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Even when limitations from pain, weakness, fatiguability, incoordination, or repetitive use are factored in, the Veteran's motion was estimated to be limited at most to 40 degrees for forward flexion. As such, it has not been shown that functional limitations limited the Veteran's range of motion to an extent as to warrant a rating in excess of 20 percent at any time over the period on appeal from June 13, 2013. As such, a rating in excess of 10 percent for the Veteran's back disability, for the period on appeal from June 13, 2013, is denied. (Continued on next page) As previously noted, in addition to orthopedic limitations, a separate rating may also be assigned for neurologic impairment stemming from a spinal disability. Here, however, no such impairment has been shown. For example, at the September 2021 VA examination, the examiner found no thoracolumbar radiculopathy and no other neurologic impairment to be present. Accordingly, a separate rating for neurologic impairment is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, Associate 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.