Citation Nr: 25004583 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 09-15 667 DATE: April 3, 2025 ORDER Effective April 1, 2008, entitlement to a 40 percent rating for lumbar degenerative disc disease (DDD) is granted. Effective February 8, 2024, a 20 percent rating for left lower extremity radiculopathy is granted. Restoration of a 10 percent rating for left knee patellofemoral pain, limitation of extension, from October 28, 2024, is granted. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain, limitation of extension, is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain, limitation of flexion, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability, limitation of flexion, is denied. Effective April 1, 2008, entitlement to a 20 percent rating for right knee instability is granted. Entitlement to a separate 20 percent rating for left knee instability is granted. Entitlement to a separate 20 percent rating for left knee locking is granted. Entitlement to a separate 20 percent rating for right knee locking is granted. REMANDED Entitlement to a rating in excess of 40 percent for lumbar degenerative disc disease from August 15, 2017, is remanded. FINDINGS OF FACT 1. Throughout the appeal, considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his back disability is productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion. 2. Since February 8, 2024, the Veteran's back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to at least moderate incomplete paralysis of the sciatic nerve. 3. In November 2024, the Agency of Original Jurisdiction (AOJ) reduced the rating for left knee patellofemoral pain, limitation of extension, to a noncompensable evaluation, effective October 28, 2024. The evidence of record at the time of the November 2024 rating decision failed to demonstrate actual improvement in the left knee patellofemoral pain under the ordinary conditions of life and work. The 10 percent rating should be restored and applied from October 28, 2024. 4. The evidence of record persuasively shows the Veteran's left knee disability was manifested by, at worst, limitation of extension limited to 0 degrees. 5. The evidence of record persuasively shows the Veteran's left knee disability was manifested by, at worst, limitation of flexion limited to 45 degrees. 6. The evidence of record persuasively shows the Veteran's right knee disability was manifested by, at worst, limitation of flexion limited to 45 degrees. 7. Throughout the appeal, the Veteran's right knee instability is manifested by moderate instability. 8. Throughout the appeal, the Veteran's left knee instability is manifested by moderate instability. 9. Throughout the appeal, the Veteran's left knee is productive of locking. 10. Throughout the appeal, the Veteran's right knee is productive of locking. CONCLUSIONS OF LAW 1. Effective April 1, 2008, the criteria for a 40 percent rating for lumbar degenerative disc disease (DDD) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.30, 4.40, 4.45, 4.59 4.71a, Diagnostic Code (DC) 5243. 2. Effective February 8, 2024, the criteria for a 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. DC 8520. 3. Restoration of a 10 percent rating for left knee patellofemoral pain, limitation of extension, from October 28, 2024, is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 4. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. 6. The criteria for a rating in excess of 10 percent for a right knee disability, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. 7. Effective April 1, 2008, the criteria for a 20 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5257. 8. The criteria for a separate 20 percent rating for left knee instability has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5257. 9. The criteria for a separate 20 percent rating for left knee locking have been met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.40, 4.45, 4.49, 4.71a, DC 5258. 10. The criteria for a separate 20 percent rating for right knee locking have been met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.40, 4.45, 4.49, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1988 to March 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2008 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was initially before the Board in May 2011 and in March 2014, when it was remanded for further development. In a November 2014 decision, the Board granted a separate 10 percent rating for the Veteran's right knee disability denied the remainder of the claims. The Veteran appealed the Board's November 2014 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the parties' Joint Motion for Remand (JMR), which was granted by the Court in a July 2015 order, the Court vacated the Board's decision and remanded the appeal for action consistent with the JMR. The Board remanded this appeal for further development in October 2015, July 2017 and in February 2019. In more recent procedural events, the Board remanded the issues on appeal in January 2020 and March 2021, and denied the issues on appeal in a September 2021 decision. The Veteran appealed these issues to the Court. Pursuant to the parties' Joint Motion for Remand (JMR), the Court vacated the Board's decision and remanded the appeal for action consistent with the JMR in September 2022. In February 2023, the Board granted entitlement to a 20 percent rating for right lower extremity radiculopathy while remanding the other issues in compliance with the September 2022 JMR. The issues were against remanded for further development in a December 2023 Board decision. In a November 2024 rating decision, the RO granted a separate 10 percent rating for limitation of flexion of the left knee, effective October 28, 2024; however, the RO also reduced the 10 percent rating for left knee, limitation of extension, to a noncompensable evaluation, effective October 28, 2024. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki,?22?Vet. App.?447?(2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disabilities on appeal precludes substantially gainful employment. See February 2024 VA examinations; November 2020 CAPRI records (VA examiners reported the Veteran is working full time as a police officer; medical records indicate Veteran works in the sheriff's office). Therefore, the issue of entitlement to a TDIU is not before the Board. Of note, by way of a January 2021 rating decision, the RO granted entitlement to a separate 10 percent rating for right lower extremity radiculopathy, which was found to be consequentially related to the Veteran's back disability; the 10 percent rating was increased to 20 percent disabling, effective April 1, 2008. See March 2023 Rating Decision. The Veteran has not appealed these determinations, and as such, this issue is not subject to appellate review at this time. See DeHart v. McDonough, 37 Vet. App. 371 (2024) (holding that neurological complications of a service-connected spine disability do not remain part and parcel of an increased (or initial) rating claim for a spine disability once the neurological complications are adjudicated by VA). As such, in this decision, the Board will not adjudicate the severity of the Veteran's right lower extremity radiculopathy. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Effective April 1, 2008, entitlement to a 40 percent rating for lumbar degenerative disc disease (DDD) The Veteran seeks increased ratings for his service-connected lumbar degenerative disc disease, pursuant to DC 5243. The Veteran seeks a rating in excess of 10 percent prior to June 27, 2011, a rating in excess of 20 percent from June 27, 2011, to August 15, 2017, and a rating in excess of 40 percent thereafter. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Board finds that a rating of 40 percent for the Veteran's back disability is warranted throughout the appeal. In a February 2008 VA back examination, the Veteran reported constant, stabbing, and sharp pain in his back. Range of motion was measured as limitation of flexion limited to 90 degrees in the thoracolumbar spine. In a June 2011 VA back examination, the Veteran reported worsening back pain with flare-ups. Range of motion was measured as limitation of flexion limited to 40 degrees in the thoracolumbar spine. The VA examiner stated the back condition was moderate in severity based on constant pain, guarding, and limited range of motion. In a December 2020 VA medical opinion, the VA examiner opined that the Veteran's range of motion during flare-ups of the thoracolumbar spine throughout the appeal period was estimated to manifest in forward flexion limited to 20 degrees, with difficulties with sitting for long periods of time, bending, squatting, lifting and carrying items heavier than thirty pounds. The Board notes that the Veteran is currently receiving the 40 percent evaluation for his back disability from August 15, 2017. Further, the Board notes that the VA examinations assessing the severity of the back disability prior to August 15, 2017, reflect reports of flare-ups and severe pain that results in limited functional ability. The examination reports reflect that the Veteran's range of motion is abnormal and measured his forward flexion at 0 to 40 degrees, while range of motion during flare-ups has been estimated at 0 to 20 degrees. After considering the Veteran's increased functional loss during flare ups and with repeated use over time, as well as his use of pain medication and reports of being incapacitated during flare-ups of the thoracolumbar spine, the Board finds that the Veteran's back disability has more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less throughout the appeal period. In light of the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that a rating of 40 percent for his back disability is warranted for the period on appeal prior to August 15, 2017. The evidence, however, also shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine for the period on appeal prior to August 15, 2017. Moreover, the evidence of record shows that his back disability is not productive of functional equivalent of ankylosis during flare-ups during this period. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, a rating of 40 percent, and no more, is warranted. Moreover, the Veteran does not contend, and the evidence does not show that his back disability was manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the evidence persuasively weighs against a rating in excess of 40 percent prior to August 15, 2017. The issue of entitlement to a rating in excess of 40 percent for the Veteran's back disability from August 15, 2017, is discussed below. 2. Effective February 8, 2024, a 20 percent rating for left lower extremity radiculopathy The Veteran is service-connected for radiculopathy of the right lower extremity, secondary to his service-connected back disability, with a 20 percent evaluation, effective April 1, 2008, pursuant to DC 8520. In the February 2024 VA back examination, the Veteran reported experiencing stabbing, burning, radiating pain down both of his lower extremities, rating the pain "10 on a scale of 0-10." The Veteran's symptoms showed moderate intermittent pain in the left lower extremity with involvement of the L4/L5, L5/S1/S2/S3 nerve roots in both lower extremities. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." The Board finds that the evidence from the February 2024 VA examination shows the Veteran's radicular symptoms and severity equate to a separate 20 percent rating for the left lower extremity radiculopathy, as it manifested by moderate incomplete paralysis of the sciatic nerve. Accordingly, a separate 20 percent rating is warranted for the Veteran's left lower extremity radiculopathy. However, the Board also finds that a rating in excess of 20 percent is not warranted for Veteran's left lower extremity radiculopathy as the evidence shows that the manifestations of the Veteran's radiculopathy have been wholly sensory, and "moderate" in nature at best. Therefore, the left lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. Thus, a rating in excess of 20 percent for left lower extremity radiculopathy is not warranted under DC 8520. 3. Restoration of a 10 percent rating for left knee patellofemoral pain, limitation of extension, from October 28, 2024 The Veteran asserts that the reduction of his rating for her service-connected left knee patellofemoral pain, limitation of extension, from 10 percent to 0 percent, in a November 2024 rating decision, was improper. Certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability," and not merely a difference in the thoroughness of the examination or in descriptive terms, and "whether the examination reports reflecting such change are based upon thorough examinations." See Brown v. Brown, 5 Vet. App. 413, 420, 421 (1995). In addition, it must be determined that any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also Stern v. McDonough, 34 Vet. App. 51, 56 (2021). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran was granted service connection for the left knee patellofemoral pain with a 0 percent evaluation, effective April 1, 2008, in a February 2008 rating decision. In a September 2012 rating decision, the disability was granted an increased rating to 10 percent disabling, effective June 27, 2011. The Board granted a compensable rating prior to June 27, 2011, for the left knee disability in January 2020. The decision was implemented in a July 2020 rating decision and a 10 percent evaluation was assigned for the left knee, effective April 1, 2008. The Veteran's 10 percent rating was based upon functional loss in the left knee due to painful motion. Where a Veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. The Veteran was afforded a VA knee and lower leg conditions examination in October 2024 during which he reported that he continues to experience worsening pain in his left knee, with use of pain medication such as Tylenol and Aleve to alleviate his pain. He also reported functional loss of the left knee as he is unable to complete full range of motion in the left knee. The Veteran's left knee manifested in swelling, weakened movement, and instability. Based on a review of the lay and medical evidence since October 28, 2024, the Board finds that the evidence does not show actual improvement to the Veteran's left knee disability as to his ability to function under the ordinary conditions of life and work. See Stern. For the period on appeal since October 28, 2024, the evidence reflects that the Veteran continues to experience painful motion of the left knee. In consideration of this information, the Board finds that there was not adequate evidence to warrant a reduction. Accordingly, the restoration of a 10 percent rating, effective the date of reduction, is warranted for Veteran's left knee patellofemoral pain and the 10 percent rating be implemented from October 28, 2024. 4. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain, limitation of extension 5. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain, limitation of flexion 6. Entitlement to a rating in excess of 10 percent for a right knee disability, limitation of flexion The Veteran seeks increased ratings for his service-connected left knee patellofemoral pain, which is rated 10 percent disabling for limitation of flexion under DC 5260, effective October 28, 2024, and limitation of extension under DC 5261, effective April 1, 2008. The Veteran is also seeking an increased rating for his service-connected right knee, status post ACL reconstruction with mild degenerative changes, which is rated 10 percent disabling for limitation of flexion under DC 5260, effective April 1, 2008. He contends that his left knee and right knee symptoms have worsened. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56, 703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In the February 2008 VA knees examination, the Veteran did not report flare-ups of the knees. Upon range of motion testing, left knee flexion was limited to 140 degrees while right knee flexion was limited to 140 degrees also. In the June 2011 VA knees examination, the Veteran reported constant pain in both knees with swelling, but did not report flare-ups of the knees. Upon range of motion testing, left knee flexion was limited to 120 degrees, left knee extension was limited to 0 degrees, and right knee flexion was limited to 105 degrees. In the August 2017 VA knees examination, the Veteran reported right knee pain that was "5/10" in severity, and left knee pain that was "3/10" in severity, with flare-ups of the knees. Upon range of motion testing, left knee flexion was limited to 140 degrees, left knee extension was limited to 0 degrees, and right knee flexion was limited to 115 degrees. Range of motion estimations were not completed by the examiner to assess functional impairment during repetitive use over time, nor during flare-ups of the knees. In the December 2020 VA knees examination, the Veteran reported flare-ups of both knees that were moderate in nature, lasted a couple of days, were precipitated by over-exertion and sitting, and were alleviated by over-the-counter medication such as Tylenol and Ibuprofen. Upon range of motion testing, left knee flexion was limited to 90 degrees, left knee extension was limited to 0 degrees, and right knee flexion was also limited to 90 degrees. The VA examiner estimated that after repetitive use over time, left knee flexion would be limited to 70 degrees, left knee extension would be limited to 0 degrees, and right knee flexion would be limited to 70 degrees. The VA examiner estimated that during flare-ups, left knee flexion would be limited to 50 degrees, left knee extension would be limited to 0 degrees, and right knee flexion would be limited to 50 degrees. In the July 2021 VA knees examination, the Veteran reported flare-ups of the left knee that occurred daily, moderated to severe in nature, lasting 20-45 minutes. Upon range of motion testing, left knee flexion was limited to 70 degrees and left knee extension was limited to 0 degrees. The VA examiner estimated that after repetitive use over time, left knee flexion would be limited to 55 degrees and left knee extension would be limited to 0 degrees. The VA examiner estimated that during flare-ups, left knee flexion would be limited to 55 degrees and left knee extension would be limited to 0 degrees. In the June 2021 VA knees examination, the Veteran reported flare-ups of the right knee that occurred monthly with overexertion, severe in nature, lasting up to a week. Upon range of motion testing, right knee flexion was limited to 90 degrees and right knee extension was limited to 0 degrees. The VA examiner estimated that after repetitive use over time, right knee flexion would be limited to 80 degrees and right knee extension would be limited to 0 degrees. The VA examiner estimated that during flare-ups, right knee flexion would be limited to 70 degrees and right knee extension would be limited to 0 degrees. In the April 2023 VA knees examination, the Veteran reported flare-ups of the knees that occurred 5-7 days per week, lasting one to four hours, mild in severity. Upon range of motion testing, left knee flexion was limited to 90 degrees, left knee extension was limited to 0 degrees, and right knee flexion was limited to 90 degrees. The VA examiner estimated that after repetitive use over time, left knee flexion would be limited to 85 degrees, left knee extension would be limited to 0 degrees, and right knee flexion would be limited to 85 degrees. The VA examiner estimated that during flare-ups, left knee flexion would be limited to 80 degrees, left knee extension would be limited to 0 degrees, and right knee flexion would be limited to 80 degrees. In the February 2024 VA knees examination, the Veteran reported that he did not have flare-ups of the knees. Upon range of motion testing, left knee flexion was limited to 80 degrees, left knee extension was limited to 0 degrees, and right knee flexion was limited to 75 degrees. The VA examiner estimated that after repetitive use over time, right knee flexion would be limited to 75 degrees and right knee extension would be limited to 0 degrees. In an October 2024 VA addendum opinion, the VA examiner estimated that during the August 2017 VA examination, the Veteran's functional impairment during flare-ups would result in left knee flexion limited to 135, left knee extension limited to 0 degrees, and right knee flexion limited to 105 degrees. In an October 2024 VA knees examination, the Veteran did not report flare-ups of the knees. Upon range of motion testing, left knee flexion was limited to 40 degrees, left knee extension was limited to 5 degrees, and right knee flexion was limited to 140 degrees. Upon review of the totality of the medical evidence, the Board notes that the VA examinations results show range of motion for left knee flexion was noted to be limited to, at worst, 40 degrees; range of motion for left knee extension was noted to be limited to, at worst, 5 degrees; and range of motion for right knee flexion was noted to be limited to, at worst, 50 degrees. Further, at no time during the appeal period has the Veteran's left knee exhibited limitation of flexion limited to 30 degrees flexion or limitation of extension limited to 15 degrees of extension; nor has the Veteran's right knee exhibited limitation of flexion limited to 30 degrees flexion. Under DC 5260, which provides ratings under limitation of flexion, the examination results do not result in a disability picture that acquiesces with a compensable rating for the right knee or a 20 percent rating for the left knee. Under DC 5261, the examination results do not result in a disability picture that acquiesces with compensable rating. Under DC 5260, to warrant a compensable rating, flexion must be limited to 45 degrees or less; a 20 percent rating is warranted when flexion is limited to 30 degrees or less. The medical evidence of record shows the Veteran has limitation of flexion in his left knee that is limited to 40 degrees in his right knee that is limited to 50 degrees, at worst. Similarly, the medical evidence of record shows the Veteran has left knee limitation of extension limited to 5 degrees, at worst. Therefore, a higher evaluation under DCs 5260 or 5261 is not warranted because the Veteran currently has limitation of motion that warrants a 10 percent rating for left knee flexion while he has noncompensable limitation of motion under both codes for left knee extension and right knee flexion. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether ratings in excess of 10 percent for limitation of motion of Veteran's left knee and limitation of flexion of Veteran's right knee is warranted. Rather, the evidence persuasively weighs against higher ratings. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). In light of the foregoing, even considering the Veteran's limitation of function after repetitive range of motion testing, and his reported functional limitations (e.g., flare-ups resulting in inability to bend, squat or stand for periods of time, worsening pain, difficulty kneeling, squatting, and climbing stairs), the Board finds that the evidence is against a finding that the Veteran's left knee and right knee disabilities warrant increased ratings for limitation of motion. Therefore, ratings in excess of 10 percent for the left knee and right knee are not warranted. Finally, the Board finds that the Veteran is not entitled to additional ratings under Diagnostic Codes 5256, 5259, 5262 or 5263. These diagnostic codes concern disabilities that involve ankylosis of the knee, symptomatic removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, and/or genu recurvatum. The evidence shows that Veteran has not suffered these injuries at any point during the appeal period, nor is there any evidence that he has had surgical removal of his meniscus. Additionally, there is no objective evidence of ankylosis, a malunion or nonunion of the tibia or fibula, or genu recurvatum. Thus, he is not entitled to an additional rating under any of these diagnostic codes. In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," Ingram v. Collins, __ Vet. App. __, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327, *1 (Mar. 12, 2025). Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable doubt in the Veteran's favor. 7. Effective April 1, 2008, entitlement to a 20 percent rating for right knee instability The Veteran contends that he is entitled to an increased rating for his right knee instability. The Veteran was granted a 10 percent rating for right knee instability, effective April 1, 2008, under 38 C.F.R. § 4.71a, DC 5257. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms "mild," "moderate" and "severe" were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, a 10 percent rating is warranted 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 or bracing for ambulation; a 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding recurrent patellar instability, 10 percent disability rating is warranted 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 disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral medial complex consists of the quadriceps tendon, the patella, and the patellar tendon. In his September 2008 Notice of Disagreement, the Veteran stated that he suffers from recurrent subluxation and lateral instability in his right knee. In the June 2011 VA examination, the Veteran was noted to have instability in the right knee, which was considered "mild" in severity. The VA examiner noted the overall severity of the knees was "moderate" based on constant pain, guarding and limited range of motion. In the August 2017 VA examination, the Veteran stated that his right knee buckles at times. The Veteran was noted to require occasional use of a brace for his bilateral knee conditions. In a December 2020 VA medical opinion, the VA examiner opined that Veteran's right knee manifested in mild lateral instability due to his ACL tear, meniscus tear, large effusion and significant right knee pain. In the December 2020 VA examination, the Veteran was noted to have a history of slight lateral instability in the right knee. In the June 2021 VA examination, the Veteran was noted to have right knee instability, and he reported his right knee will give out at times; he was shown to exhibit persistent instability and recurrent subluxation. He did not require a prescription for ambulation and did not have patellar instability. In the April 2023 VA examination, the Veteran was noted experience right knee weakness and instability and felt like his right knee will give out and cause him to fall. The Veteran was noted to have undergone a complete and successful ligament tear repair but did not require a prescription for ambulation; he did not have recurrent patellar instability. The Veteran did require regular use of a brace for both knees. In the February 2024 VA examination, the Veteran was again noted to have undergone a complete and successful ligament tear repair and required use of a brace for the right knee; he did not have recurrent patellar instability. In applying the old regulations, the evidence demonstrates that the Veteran's right knee symptoms have been consistent with no more than "moderate" rather than "severe" recurrent subluxation or lateral instability. In reaching this finding, the Board acknowledges that "nothing in [DC] 5257 provides that objective medical evidence is required or is to be favored over lay evidence." English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In balancing the lay evidence of instability symptoms with the medical evidence of no instability, the Board finds that Veteran's disability picture does not more nearly approximate "severe" instability or subluxation. In reaching this determination, the Board finds that consistent lay reports of constant pain, inability to stand too long, limitation of daily activities and use of multiple pain medications are both competent and credible. See English. Indeed, VA treatment records and examination reports report that Veteran regularly uses a right knee brace to aid with ambulation. Despite lay evidence of Veteran's right knee instability and constant use of assistive aid for ambulation, the Board finds that the record does not reflect severe right knee instability as VA examiners have consistently found no objective evidence of recurrent subluxation or instability on physical examination, to include joint stability tests, conducted throughout the appeal. Under the revised rating criteria, the Veteran did not exhibit objective evidence of persistent instability caused by an unrepaired or failed repair of a complete ligament tear upon physical examination. For the purposes of determining the severity of the Veteran's right knee instability, the Board finds that the results of the joint stability tests and lack of objective evidence weighs in favor of 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." Furthermore, while the Veteran reports he experiences constant pain and limits on functional ability as a result of right knee instability and has been prescribed a right knee brace as an assistive device, the VA examinations did not show persistent instability due to an unrepaired or failed repair of complete ligament tear. In light of the foregoing, the Board finds that the evidence of record does not reflect a disability picture that more nearly approximated a 30 percent rating under DC 5257 at any point during the appeal period. In sum, a 20 percent rating, but not more, is warranted for Veteran's right knee instability. 8. Entitlement to a separate 20 percent rating for left knee instability The Board also finds that a separate 20 percent rating is warranted under DC 5257 because the Veteran exhibits moderate instability in his left knee throughout the period on appeal. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 in effect prior to February 7, 2021, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. In his September 2008 Notice of Disagreement, the Veteran stated that he experienced recurrent subluxation and lateral instability in his left knee. In the October 2024 VA knees examination, the Veteran reported a history of left knee instability and stated that he experiences buckling in his left knee often. The competent and credible evidence of record, including the VA examination reports and the Veteran's lay statements reflect that the Veteran has reported the giving out of his left knee and the need to use braces on a regular basis for his left knee for ambulation and to prevent Veteran from falling or his knee giving out. The Board notes that the Veteran is competent to report his left knee symptoms, to include instability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); English v. Wilkie, 30 Vet. App. 347 (2018). In light of the foregoing, and resolving all reasonable doubt in his favor, the Board finds that a separate rating of at least 20 percent for moderate instability of the left knee is warranted based on the former criteria set forth in DC 5257 throughout the appeal period. In applying the old regulations, the evidence demonstrates that the Veteran's left knee symptoms have been consistent with no more than "moderate" rather than "severe" recurrent subluxation or lateral instability. In reaching this determination, the Board finds that consistent lay reports of constant pain, inability to stand too long, limitation of daily activities and use of multiple pain medications are both competent and credible. See English. Indeed, VA treatment records and examination reports report that Veteran regularly uses a left knee brace to aid with ambulation. Despite lay evidence of Veteran's left knee instability and constant use of assistive aid for ambulation, the Board finds that the record does not reflect severe left knee instability as VA examiners have consistently found no objective evidence of recurrent subluxation or instability on physical examination, to include joint stability tests, conducted throughout the appeal. Under the revised rating criteria, the Veteran did not exhibit objective evidence of persistent instability caused by an unrepaired or failed repair of a complete ligament tear upon physical examination. For the purposes of determining the severity of the Veteran's left knee instability, the Board finds that the results of the joint stability tests and lack of objective evidence weighs in favor of 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." Furthermore, while the Veteran reports he experiences constant pain and limits on functional ability as a result of left knee instability and has been prescribed a left knee brace as an assistive device, the VA examinations did not show persistent instability due to an unrepaired or failed repair of complete ligament tear. In light of the foregoing, the Board finds that the evidence of record does not reflect a disability picture that more nearly approximated a 30 percent rating under DC 5257 at any point during the appeal period. In sum, a 20 percent rating, but not more, is warranted for Veteran's left knee instability. 9. Entitlement to a separate 20 percent rating for left knee locking 10. Entitlement to a separate 20 percent rating for right knee locking The Veteran has reported throughout the appeal period that he experiences locking of his left and right knees. During his February 2008, June 2011, and December 2020 VA knees examinations, the Veteran reported repeated effusion in his bilateral knees. In his September 2008 Notice of Disagreement, the Veteran stated that he experiences his knees "locking up." During his June 2021 and July 2021 VA knees examinations, the Veteran reported he experiences locking up of his bilateral knees, inability to bend, swelling, sharp stabbing pains, instability, and falling over due to his knees. The examination found the Veteran experienced frequent episodes of joint pain and "locking." During the February 2024 VA knees examination, the Veteran was found to experience frequent episodes of joint pain, locking, and effusion into the right knee. In light of the foregoing, the Board finds that separate 20 percent ratings are warranted under Diagnostic Code 5258 for left knee and right knee dislocated semilunar cartilage, as a result of locking, pain, and effusion into the joint that the Veteran experiences. See English v. Wilkie, 30 Vet. App. 347 (2018). The Board notes that the Veteran is competent to report his symptoms as to his left and right knee, such as pain and locking. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). According to the rating schedule, a Veteran is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Diagnostic Code 5258. Thus, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 to compensate the Veteran for the symptoms of his left knee locking and for his right knee. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under DC 5257 and DC 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under DC 5258). REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for lumbar degenerative disc disease from August 15, 2017 is remanded. The Veteran is seeking a disability rating in excess of 40 percent for his service-connected back disability for the period on appeal since August 15, 2017. Recently, the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare." See Chavis v. McDonough, 34 Vet. App. 1 (2021). Given the Veteran's lay statements about the severity of his flare-ups and the finding in Chavis, the Board finds that a remand is necessary to obtain a medical opinion that addresses whether the medical and lay evidence of record demonstrates that the Veteran's flare-ups amount to the functional equivalence of ankylosis. The matters are REMANDED for the following action: 1. Associate record of the Veteran's treatment, to include VA outpatient treatment records. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his service-connected back disability during a flare up. The examiner should identify all medications that the Veteran uses to treat this disability. All necessary tests should be performed. All findings should be reported in detail. The examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of this condition. The examiner must provide an opinion as to whether the evidence of record, including the competent and credible lay statements, demonstrates that the Veteran's flare-ups of his back disability are functionally equivalent to ankylosis. In responding to this question, the examiner should address, if possible, the beneficial effects of medication that the Veteran uses to treat this condition. The examiner must also address the nature, extent and severity of the Veteran's right lower extremity and left lower extremity radiculopathy impairment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahmed, Zarar 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.