Citation Nr: A25035995
Decision Date: 04/18/25	Archive Date: 04/18/25

DOCKET NO. 240730-458330
DATE: April 18, 2025

ORDER

Restoration of a 20 percent disability rating for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS), effective March 19, 2022, is granted. 

Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine with IVDS is denied.

Entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine with IVDS is denied.

Entitlement to a 20 percent disability rating since February 16, 2021, but no earlier or higher, for right knee meniscus tear status post arthroscopic surgery is granted.

Entitlement to a separate 20 percent disability rating since February 16, 2021, but no earlier or higher, for patellar instability of the right knee associated with the right knee meniscus tear is granted.

Entitlement to a compensable rating for right knee scar status post arthroscopic surgery is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, since February 16, 2021, is granted.

REMANDED

Entitlement to a TDIU rating prior to February 16, 2021, on an extraschedular basis, is remanded.

FINDINGS OF FACT

1. The reduction of the Veteran's disability rating for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine and IVDS was improper because the evidence of record does not persuasively show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.

2. The severity, frequency, and duration of the Veteran's symptoms associated with his right lower extremity radiculopathy more closely approximated moderate symptoms during the appeal period; the disability did not more closely approximate moderately severe or severe symptoms, or complete paralysis.

3. The evidence of record persuasively weighs against finding the Veteran's degenerative arthritis of the lumbar spine with IVDS manifested in unfavorable ankylosis of the thoracolumbar spine.

4. Since February 16, 2021, the evidence of record persuasively weighs in favor of finding the Veteran's right knee torn meniscus has resulted in patella instability and that he has been prescribed cane. 

5. Since February 16, 2021, the evidence of record persuasively weighs in favor of finding the Veteran's right knee torn meniscus status post arthroscopic surgery manifested in reoccurring episodes of dislocation and pain.

6. The evidence of record persuasively weighs against finding the right knee scars status post arthroscopic surgery is painful or unstable; the total area of the scars has been characterized as no greater than 3.6 cm2. 

7. The Veteran's service-connected disabilities met the schedular requirements for a TDIU rating on February 16, 2021; his combined disability rating for all service-connected disability was 70 percent as of this date.

8. The Veteran has been unable to secure and follow a substantially gainful occupation due to a combination of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for restoration of the 20 percent rating under DC 8520 for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine and IVDS, effective March 19, 2022, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520.

2. The criteria for entitlement to a rating in excess of 20 percent rating for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8620, 8720.

3. The criteria for an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243. 

4. The criteria for a 20 percent disability rating since February 16, 2021, but no earlier or higher, for right knee meniscus tear status post arthroscopic surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5258, 5260. 

5. The criteria for a separate 20 percent disability for patellar instability of the right knee associated with the right knee meniscus tear since February 16, 2021, but no earlier or higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

6. The criteria for a compensable disability rating for right knee scar status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.118, DC 7802.

7. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU rating due to his service-connected disabilities since February 16, 2021, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has active service in the United States Army from April 2006 to August 2006, with additional service in the Minnesota National Guard and Army Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision by a Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's Direct Review docket. See July 2024 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the August 2023 rating decision. 38 C.F.R. § 20.301.

The Board notes that evidence was associated with the claims file after the August 2023 rating decision on appeal, which was during a period of time that is outside the applicable evidentiary window. Therefore, the Board has not considered this evidence in its present decision. 38 C.F.R. § 20.300(a). 

If the Veteran would like VA to consider the additional evidence that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and identify the evidence for the AOJ's consideration. 38 C.F.R. § 3.2501. Specific instructions for filing a supplemental claim are included with this decision.

As to the issue being remanded, the AOJ will consider it in light of the entire claims file upon remand.

Upon review of the procedural history of this appeal, the Board finds it necessary to expand the issues on appeal with respect to the Veteran's service-connected right lower extremity radiculopathy. In a May 2021 rating decision, VA awarded a higher rating for the service-connected right lower extremity radiculopathy. Within one year of that rating decision, VA received a supplemental claim for a higher rating for the right lower extremity radiculopathy, to include a TDIU rating, "for the entire appeal period." See January 2022 VA Form 20-0995; see also January 2022 VA Form 21-8940. In the April 2022 rating decision, VA reduced the disability rating for the right lower extremity from 20 to 10 percent with an effective date of March 19, 2022, effectively denying a higher rating for this disability. In March 2023, VA received a supplemental claim that, in part, included a request to readjudicate the "[p]ropriety of reduction and increased rating for radiculopathy, right lower extremity." The August 2023 rating decision "continued" the 10 percent rating, effectively finding the reduction in rating proper. 

In general, a challenge as to whether a reduction in rating is proper is separate from a claim for an increased rating. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Here, VA reduced the rating as a result of a March 2022 VA examination that was conducted in connection with the Veteran's claim for a higher rating, to include a TDIU rating, for all of his service-connected disabilities. Because the Veteran has continuously pursued his claim for a higher initial disability rating for the service-connected right lower extremity radiculopathy, the Board finds that the Veteran's appeal for a higher rating inherently includes an appeal of the propriety of the rating reduction for that same disability. Given the record supports finding the reduction was improper, there is no prejudice to the Veteran in the Board taking jurisdiction over this additional issue. Thus, the issues on appeal have been recharacterized to include an issue as to whether the reduction in rating for the right upper extremity radiculopathy was proper. 

As a final preliminary matter, the Board notes that the Veteran, "understanding his rights and through the assistance of counsel, waives his right to further development under VA's duty to assist (DTA) and asks the Board to promulgate a decision on the evidence of record." See July 2024 VA Form 10182. The Board finds the written request to be a clear, unequivocal, and voluntary request by the Veteran through his attorney to relinquish his right to further development pursuant to VA's duty to assist (including arguing VA failed to develop the record should he disagree with this decision). See Janssen v. Principi, 15 Vet. App. 370, 374 (2001) (recognizing that "parties are generally permitted to waive the application of statutes intended for their benefit" and that "in order to do so, the appellant must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely, to relinquish or surrender that right"). Thus, the Board has overlooked any duty to assist errors identified while reviewing the record and finds the matter ready for adjudication. 

Propriety of a Rating Reduction

To properly reduce a disability rating, VA must satisfy both procedural and substantive criteria. 38 C.F.R. §§ 3.105, 3.343, 3.344. However, the procedural requirements under 38 C.F.R. § 3.105(e) do not apply if the proposed rating reduction does not result in reduction in the actual total compensation amount for the Veteran, i.e., section 3.105(e) is not applicable where the evaluation of a specific disability is reduced but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities. VAOPGCPREC 71-91 (Nov. 1991). 

The substantive criteria for rating reductions are outlined in 38 C.F.R. § 3.344. For a rating in effect for less than five years, the burden is on VA to establish, by an approximate balance of the evidence, that a reduction is warranted because a reexamination showed actual improvement in a veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(c); Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). 

The United States Court of Appeals for Veterans Claims (Court) held in Brown that there are several general VA regulations that apply to all rating reductions regardless of how long the rating has been in effect for. Brown, 7 Vet. App. at 420-421. Each disability is to be viewed in relation to its history. 38 C.F.R. § 4.1. The AOJ should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Additionally, it must be determined that improvement in a disability has actually occurred and that such improvement reflects improvement in the ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that the approximate balance of the evidence weighs against the claim. Id.

The Board notes that, in considering the propriety of a reduction, although post-reduction medical evidence may be considered in the context of evaluating whether there has been actual improvement, the focus is on the evidence available to the AOJ at the time the reduction was effectuated. Dofflemyer, 2 Vet. App. at 281-82.

Restoration of a 20 percent disability rating for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine with IVDS, effective March 19, 2022.

A February 2020 rating decision in part awarded service connection for right lower extremity radiculopathy associated with the sciatic nerve and assigned a 10 percent rating with an effective date of May 15, 2019. In response to the Veteran's January 2021 VA Form 20-0995, a May 2021 rating decision increased the rating to 20 percent with an effective date of April 27, 2021 (date of a then-recent VA examination). 

In January 2022, VA received VA Forms 20-0995 and 21-8940. The Veteran stated he disagreed with the assigned rating for the right lower extremity radiculopathy for the entire appeal period, i.e., dating back to May 2019. An April 2022 rating decision reduced the disability rating for the right lower extremity radiculopathy to 10 percent, effective March 19, 2022. 

In March 2023, VA received a VA Form 20-0995 that identified the Veteran disagreed with the propietary of the reduction for the service-connected right lower extremity radiculopathy and a higher rating. The August 2023 rating decision "continued" the 10 percent rating. 

In the present case, the 20 percent rating was in effect from April 27, 2021, to March 18, 2022 (day prior to the March 2022 VA examination). As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations apply. 38 C.F.R. § 3.344(c).

The Board initially considered the procedural requirements. Here, the reduction of the ratings for the service-connected right lower extremity radiculopathy from 20 percent to 10 percent did not result in a reduction in the overall compensation benefits the Veteran was receiving at the time. The Veteran's combined rating continued to be 60 percent. Accordingly, the procedural requirements do not apply. 38 C.F.R. § 3.105(e).

Turning to the substantive requirements, the Board finds that the evidence does not show there was actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. The provisions of 38 C.F.R. § 3.344(a) do not apply in this appeal because the 20 percent rating at issue was in effect for less than five years at the time of the April 2022 rating decision. Under the provisions of 38 C.F.R. § 3.344(c), a reduction is warranted if a reexamination discloses improvement in a disability with a rating in effect for less than five years. Improvement in a disability must have actually occurred and that the findings reflect an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-421.

The April 2022 rating decision fails to address whether there was actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Rather, the rating decision states only that the rating was being reduced because the March 2022 VA examination "noted improvement in this condition." The rating decision discussed the rating criteria for 10 percent and 20 percent ratings within the schedule of ratings for neurological conditions. 38 C.F.R. §§ 3.120, 3.124a. It appears VA analyzed the matter merely as a claim for an increased rating rather than under the provisions of 38 C.F.R. § 3.344. 

The approximate balance of the evidence does not show there was actual improvement. The April 2021 VA back examination report states, in part, that the Veteran reported back pain radiating into his right lower extremity; he also noted numbness and tingling. See May 2021 C&P Exam. The clinical examination showed normal right lower extremity muscle strength, reflexes, and sensory examination; the straight leg raising test was negative. His symptoms were described as moderate intermittent pain, paresthesias/dysesthesias, and numbness related to the right sciatic nerve. 

A February 2022 VA back examination report documented similar clinical findings. During this encounter, the straight leg raising test was positive on the right. The symptoms were described as mild intermittent pain and paresthesias/dysesthesias; constant pain and numbness were not identified as pertinent symptoms. 

The March 2022 VA back and peripheral neuropathy examination reports show that the Veteran reported severe, worsening back pain radiating down his right leg. Walking in general was hard due to constant pain. The clinical examination showed reduced strength with right knee extension and right ankle flexion and dorsiflexion. He had hypoactive reflexes and decreased sensation associated with the right knee and ankle. Straight leg raise testing was positive on the right. The symptoms were described as moderate intermittent pain, paresthesias/dysesthesias, and numbness. The examiner described the Veteran's right lower extremity radiculopathy as mild, incomplete paralysis; no rationale was included.

The VA treatment records document the Veteran continued to report pain in general and document only vague objective findings. See generally CAPRI. 

The Board finds the February 2022 and March 2022 VA examination reports probative and gives them limited weight. The VA examiners sufficiently documented pertinent, objective findings. They appear to have considered the Veteran's description of his symptoms. However, the Board (and VA) is not bound by either examiner's characterization that the Veteran's lay statements and the objective findings were consistent with no greater than "mild" symptoms, a characterization that neither examiner explained (or define). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board has given due consideration to the pertinent lay evidence. 38 U.S.C. § 1154(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms, including his explanation about the severity and frequencies of his radiculopathy symptoms. See February 2022 & March 2022 C&P Exams. His description of his symptoms is not inconsistent with his general complaints in the VA treatment record, and are inconsistent with the disability having improved. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds the statements in conjunction with the objective findings discussed above probative and support finding the Veteran did not experience actual improvement in his ability to function under the ordinary conditions of life and work.

For the above reasons, the Board finds that the evidence of record weighs against the propriety of the rating reduction because it does not demonstrate actual improvement. The Board, thus, grants restoration of the 20 percent rating for the service-connected right lower extremity radiculopathy associated with the service-connected back disability, effective March 19, 2022.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R., Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

VA rates unlisted conditions under a closely related disease or injury consistent with the functions affected, anatomical localization, and symptomatology. 38 C.F.R. § 4.20.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. "Staged ratings" are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In every instance where a rating schedule does not identify specific rating criteria for a noncompensable rating (zero percent), a noncompensable rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

The evaluation of the same disability under several DCs, known as "pyramiding," must be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id.

For non-initial increase rating claims, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Veteran will receive the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc).

Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine with IVDS.

A February 2020 rating decision granted service connection for right lower extremity radiculopathy secondary to lumbar spine degenerative arthritis of the spine and IVDS and assigned a 10 percent rating under DC 8520 with an effective date of May 15, 2019. 38 C.F.R. § 4.71(a). A May 2021 rating decision increased the disability rating to 20 percent with an effective date of April 27, 2021. 

Of note, an April 2022 rating decision reduced the disability rating to 10 percent with an effective date of March 19, 2022, which the Board herein above found improper.

The regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120; see also 38 C.F.R. §§ 4.123, 4.124. The schedule of ratings for Diseases of the Peripheral Nerves generally rates nerve injuries based on paralysis (complete or incomplete), neuritis, or neuralgia of a specific nerve branch. 38 C.F.R. § 4.123, 4.124, 4.124a, DCs 8510-8730. 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis with each nerve, whether due to varied level of a nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves - Schedule of ratings. 

The term "neuritis" is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. 38 C.F.R. § 4.123. It is rated according to the affected nerve, with a maximum rating equal to severe incomplete paralysis except for neuritis not characterized by organic changes or with sciatic nerve involvement. The maximum rating that may be assigned for neuritis not characterized by organic changes is moderate incomplete paralysis and with sciatic nerve involvement is moderately severe incomplete paralysis. 

The term "neuralgia" is characterized usually by a dull and intermittent pain and of a typical distribution as to affect the nerve. 38 C.F.R. § 4.123. It is rated with a maximum rating equal to moderate incomplete paralysis unless the diagnosis is tic douloureux or trifacial neuralgia, which may be rated equal to complete paralysis of the affected nerve.

The schedule of ratings establishes a maximum disability rating for conditions that are wholly sensory as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017).

Neuropathic conditions, such as radiculopathy, can be based on consideration of a single affected nerve, a grouping of upper extremity nerves, or the predominate disability amongst lower extremity nerves within the same nerve branch. 38 C.F.R. § 4.124a; see also VA Adjudication Procedures Manual (M21-1), Part V.iii.12.A.2.e, V.iii.12.A.2.f. 

The sciatic nerve branch encompasses the sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. See M21-1, Part V.iii.12.A.2.e. 

Whether complete or incomplete paralysis, neuritis, or neuralgia of the sciatic nerve, a 10 percent rating is warranted when there is mild incomplete paralysis. 38 C.F.R. § 4.124a, DCs 8520, 8620, 8720. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent (maximum) rating is warranted for complete paralysis requiring the foot dangle and drop, no active movement possible of muscles below the knee, and weakened or lost flexion of knee. 

Words such as "marked," "severe," "moderate," and "mild" are not defined in the schedule of ratings. The M21-1 discusses mild incomplete paralysis as the lowest "default" evaluation for "symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment." See M21-1, Part V.iii.12.A.2.c. These symptoms would be graded lower, less persistent, or affect only a small area, such as the presence of minimal reflex or motor abnormalities. Moderate, moderately severe (for the sciatic nerve), and severe incomplete paralysis are assigned when there is also non-sensory symptoms, such as reflex and motor changes. A higher rating is warranted in relation to the level of limitation or disability the symptom(s) impose.

For reference and illustrative purposes only, the Board takes administrative notice that the definition of "marked" includes "having a distinctive or emphasized character." See Merriam-Webster Dictionary online, available at https://www.merriam-webster.com/dictionary/marked. "Severe" includes very painful or harmful and of a great degree. See id., available at www.merriam-webster.com/dictionary/severe. "Moderate" includes not violent, severe, or intense. Id., available at www.merriam-webster.com/dictionary/moderate. "Mild" includes not being or involving what is extreme and not severe. Id., available at www.merriam-webster.com/dictionary/mild. However, rather than apply a mechanical formula, the Board evaluates all of the evidence in a manner that is equitable and just. 38 C.F.R. § 4.6.

The VA treatment records show that the Veteran reported intermittent pain radiating from the right side of his back down the posterior aspect of his right lower extremity and into his right foot at a March 2021 physical therapy evaluation. See February 2022 CAPRI. The clinical examination showed a positive lumbar distraction test; straight leg raise, Faber, and pelvic rock testing were negative. The treatment records show that the neurological portion of the clinical examinations were generally characterized as gross normal motor and sensation. See generally CAPRI.

The Veteran was afforded six VA back conditions examinations over the course of the appeal period. The first examination occurred in June 2019. The diagnoses did not include radiculopathy. The examination report, in part, showed decreased sensation at the right upper anterior thigh, thigh/knee, and lower leg/ankle areas. He had full strength with no observable muscle atrophy in the lower extremities. Deep tendon reflexes were normal at 2+. Straight leg raise testing was negative. The examiner stated that the Veteran had radiating pain, further described as moderate intermittent pain relating to the right sciatic and femoral nerves; the condition was deemed mild. 

The Veteran was afforded a second VA back conditions examination in January 2020. See February 2020 C&P Exam. The diagnoses did not include radiculopathy. The examination report, in part, showed variable strength of the bilateral lower extremities but no observable muscle atrophy. He had absent deep tendon reflexes at the right knee and ankle. Sensation was decreased through the right lower extremity. Straight leg raise testing was negative. The examiner stated the Veteran had radiating pain (which was present on examination), further described as moderate constant pain with mild intermittent pain and paresthesias/dysesthesias relating to the right sciatic and femoral nerves; the condition was deemed mild. 

The Veteran was afforded a third VA back conditions examination in April 2021. See May 2021 C&P Exam. The diagnoses did not include radiculopathy. The examination report, in part, showed full strength of the lower extremities with no observable muscle atrophy. He had normal lower extremity deep tendon reflexes and sensation. Straight leg raise testing was negative. The examiner stated the Veteran had radiating pain, further described as moderate intermittent pain, paresthesias/dysesthesias, and numbness relating to the right sciatic nerve only. 

The Veteran was afforded a fourth VA back conditions examination in February 2022. The diagnoses included right lower extremity radiculopathy. The examination report, in part, showed full strength of the lower extremities with no observable muscle atrophy. He had normal lower extremity deep tendon reflexes and sensation. Straight leg raise testing was positive on the right only. The examiner stated the Veteran had radiating pain, further described as mild intermittent pain and paresthesias/dysesthesias relating to the right sciatic nerve only. 

The Veteran was afforded a fifth VA back conditions and peripheral neuropathy examinations in March 2022. The diagnoses included right lower extremity sciatica. He reported worsening pain with numbness and tingling down his right leg. The examination report, in part, showed grade 4 strength with knee extension and ankle plantar and dorsiflexion. There was no observable muscle atrophy. The deep tendon reflexes were hypoactive at the right knee and ankle. Sensation was decreased in the right upper extremity. There were no trophic changes. The gait was abnormal; he walked with a lump while using a cane. Straight leg raise testing was positive on the right only. The condition did not result in a functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner stated the Veteran had radiating pain, further described as moderate intermittent pain, paresthesias/dysesthesias, and numbness relating to the right sciatic nerve only; the condition was deemed mild. 

The Veteran was afforded his sixth VA back conditions examination in July 2023. The diagnoses included right lower extremity radiculopathy. He reported pain shooting down his hip and in the back of his right leg. The examination report, in part, showed full strength of the lower extremities with no observable muscle atrophy. He had normal lower extremity deep tendon reflexes and sensation. Straight leg raise testing was positive on the right only. The examiner stated the Veteran had radiating pain, further described as severe intermittent pain with moderate paresthesias/dysesthesias and numbness relating to the right sciatic nerve. 

The Board finds the six above summarized VA examination reports of some probative value and collectively gives the reports limited weight. See June 2019, February 2020, May 2021, February 2022, March 2022, & July 2023 C&P Exams. The examiners were qualified medical professionals who conducted in-person examinations and appear to have given some consideration to the Veteran's description of his symptoms, though some examiners appear to have found the statements more credible than other examiners. The description of the sensory and non-sensory findings is not inconsistent with evidence elsewhere in the claims file. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. 

Additionally, the Board has given due consideration to the pertinent lay evidence. 38 U.S.C. § 1154(a); Layno, 6 Vet. App. at 470. The Veteran has reported pain, numbness, and tingling from his back and down his right leg. See, e.g., November June 2019, February 2020, May 2021, February 2022, March 2022, & July 2023 C&P Exams; January 2022 Correspondence. Though he is competent to describe his symptoms and how the symptoms have impacted his activities during the appeal period, the criteria needed to support a higher rating also requires medical findings that are within the province of only trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). His description of the radiculopathy symptoms indicates medication (primarily topical creams) provided no ameliorative effects. Ingram v. Collins, __ Vet. App. __, No. 23-1798 (Mar. 12, 2025); Jones v. Shinseki, 26 Vet. App. 56, 61 (2012).

The Veteran's contentions pertaining to the severity of his symptoms are probative and have been considered alongside the clinical findings identified in the VA treatment records and the various VAX examination reports. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435.

The Board finds that the record does not support a rating higher than the already assigned 20 percent rating for the sciatic nerve. The pertinent, probative evidence shows that the lower extremity radiculopathy is characterized by pain (at times constant), numbness, and tingling. See generally C&P Exams. The symptoms are present at rest and with movement. He has regularly used a cane. The objective findings show a positive straight leg raise test on the right. He has had abnormal right lower extremity strength without muscle atrophy, abnormal reflexes, and abnormal sensation at times. The Board recognizes that the Veteran has reported difficulty completing his activities of daily living in general, but his limitations appear more so related to the back and knee disabilities rather than due to his radiculopathy symptoms. The Board finds the description of the radiculopathy symptoms with the objective findings collectively more closely approximate a moderate impairment, and not a moderately severe or severe impairment.

The Board has considered other potentially applicable DCs but does not find the record supports a higher rating or a separate rating under another DC. Specifically, DC 8520 considers the same sensory abnormalities as those that would be considered under neuritis and neuralgia under DCs 8620 and 8720. Banschbach v. McDonough, 37 Vet. App. 422 (2024). Awarding a separate rating for overlapping symptoms would violate VA's rule against pyramiding. 38 C.F.R. § 4.14. 

The earlier VA examination report show the examiners attributed the Veteran's symptoms to the femoral as well as sciatic nerve. See June 2019 & February 2020 C&P Exams. These VA examiners did not explain what specific symptoms they attributed amongst the two nerve branches. The findings appear to be inconsistent with the opinions of the later VA examiners, including the March 2022 VA examiner who completed the peripheral nerve conditions examination report. The Board finds the record as a whole does not support a separate disability rating under DCs 8526, 8527, 8626, 8627, 8726, or 8727. See also M21-1, Part V.iii.12.A.2.e. 

For the above reasons, the evidence persuasively weighs against ratings in excess of 20 percent for right lower extremity radiculopathy. Therefore, the claim is denied.

Entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine with IVDS.

A February 2020 rating decision granted service connection for lumbar spine degenerative arthritis of the spine and IVDS secondary to the service-connected right knee disability and assigned a 40 percent rating under DC 5243 with an effective date of May 15, 2019. 38 C.F.R. § 4.71(a). 

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered when determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.45. The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); Johnson v. Brown, 10 Vet. App. 80, 84-85 (1997). 

Painful motion is a factor when considering functional limitations of a joint disability. 38 C.F.R. § 4.59. Because VA is permitted to award the minimum compensable rating for a joint due to painful motion, testing must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

The Board notes that 38 C.F.R. § 4.71a was amended during the appeal period but that the amendment only changed the titles of DCs 5242 and 5243 (and added DC 5244). 86 Fed. Reg. 8142 (Feb. 4, 2021). No changes were made to the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula).

Disabilities directly related to the spine are rated under DCs 5235 to 5243. 38 C.F.R. § 4.71a. DCs 5235 to 5242 direct the rating official to rate the disability under the General Rating Formula. DC 5243 provides that IVDS, pre- or post-operatively, shall be evaluated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under §4.25.  

Under the General Rating Formula, in pertinent part, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is assigned if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine, i.e., cervical and thoracolumbar spines. 

Note (1) directs the rating official to consider objective neurological abnormalities under the appropriate DC. Id. Note (2) directs the rating official to Plate V for "normal" the range of motion values and how to calculate the sum of the ranges of motion. Note (3) states that values less than those identified in Plate V can be considered normal for a specific individual so long as the examiner explains such. Note (4) directs the rating official to round each measurement to the nearest 5 degrees. Note (5) defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. The Note also states that fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. (emphasis added). Note (6) directs the rating official to consider the cervical and thoracolumbar spine segments separately unless the issue is unfavorable ankylosis of both segments.

Under the IVDS Formula, in pertinent part, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than 6 weeks during the past 12 months. Id. A 60 percent (maximum) rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1) defines an incapacitating episode as a period of acute signs and symptoms that requiring treatment and bed rest prescribed by a physician. Id. Note (2) directs the rating official to evaluate the cervical and thoracolumbar spine segments separately if the effects in each segment are clearly distinct under either the General Rating or IVDS Formula.

The claims file does not support a higher rating. The VA treatment records show that the Veteran reported worsening back pain in March 2019. See December 2019 CAPRI. He noted that he had been prescribed Tramadol for right knee and back pain but that he rarely takes medications because he dislikes pills; he still had some pills from an inactive prescription from 2017. The clinical examination showed paraspinal muscle tenderness, a range of motion "WHL," and a normal gait. He was provided a prescription for physical therapy (records of which are not in the claims file) and chiropractic care. During a May 2019 chiropractic care visit, he reported "lower back pain flare ups every couple of months that usually calm down within a few days and since Physical Therapy the lower back pain has not subsided". See November 2019 Medical Treatment Record. The May 2019 and June 2019 treatment notes contain no clinical findings.

During a February 2021 vesting visit, the Veteran reported continued back pain. His symptoms were preventing him from being able to sit for prolonged periods. See January 2022 CAPRI. The summary of the physical examination included no relevant clinical findings. In March 2021, the Veteran completed a physical therapy evaluation. He rated his back pain between 5 and 10; sitting and driving aggravated his symptoms. The therapist observed that the Veteran had moderate difficulty with sit to stand transition; he had a mildly antalgic gait on the right. The clinical evaluation was abnormal. Active flexion was reduced to 30 degrees and extension to 10 degrees; lateral bending bilaterally was reduced 50 percent. 

The VA treatment records show that the Veteran continued to receive treatment for his chronic back pain. See March 2023, May 2023, & August 2023 CAPRI. The treatment notes contain no clinical findings related to his range of motion in his back nor observations of immobility during office visits. In January 2023, he reported receiving private chiropractic care (records of which are not in the claims file). He was given a prescription for physical therapy in January 2023 (records scanned into VA's Veterans Health Information Systems and Technology Architecture (VistA) system that were not added to the claims file). 

The VA treatment notes show that the Veteran has reported spending time in bed but there is no clear indication that a treating provider ever prescribed bed rest at any point during the appeal period. See generally CAPRI.

The Veteran was afforded six VA back conditions examinations over the course of the appeal period. The first examination occurred in June 2019. The diagnoses were degenerative arthritis of the spine, degenerative disc disease of the lumbar spine, and IVDS. He reported initially injuring his back during annual training in 2008. His symptoms gradually worsened because he has to lift with his back due to a knee injury. He experiences mild flare ups weekly and severe flare-ups monthly, the last of which lasted for two months. His treatment included Lidocaine patches, lumbar brace (helpful), and Tramadol and methocarbamol (some help). The condition limits his functioning, including bending down to pick up something, getting up from the seated position or out of bed, and sitting in general. 

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 35 degrees, extend to zero degrees, laterally flex 15 degrees to each side, laterally rotate to the right to 10 degrees, and laterally rotate to the left to 25 degrees during active motion testing. There was pain at all planes during active testing, passive testing, and with weight-bearing; there was no pain evident with nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's report of pain would cause additional loss of function and estimated that the pain would reduce the Veteran's forward flexion to 30 degrees, lateral flexion to 10 degrees to each side, lateral rotation to the right to 5 degrees, and lateral rotation to the left to 20 degrees; the pain did not impact extension. 

The clinical examination further shows tenderness or pain when palpating the lumbar spine. See id. Muscle spasms and guarding affected gait and/or spine contour. The Veteran had full strength in his lower extremities with no observable muscle atrophy. Deep tendon reflexes were normal at 2+. Sensation was decreased at the right upper anterior thigh, thigh/knee, and lower leg/ankle areas. Straight leg raise testing was negative bilaterally. There was no evidence of favorable or unfavorable ankylosis. There was no history of prescribed bed rest. An assistive device was not being used. 

The Veteran was afforded a second VA back conditions examination in January 2020. See February 2020 C&P Exam. He reported treatment included Lidocaine patches, Tramadol, and methocarbamol. The flare ups occurred at least once a month, lasting 2 weeks to 2 months. Bending and twisting caused pain. 

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 30 degrees, extend to zero degrees, laterally flex 10 degrees to each side, and laterally rotate 5 degrees to each side during active motion testing. There was pain at all planes during active and passive testing and with weight- and nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's pain, weakness, lack of endurance, and/or incoordination would cause additional loss of function and estimated that these symptoms would reduce the Veteran's forward flexion to 20 degrees, extension to 5 degrees, lateral flexion to 5 degrees to each side, and lateral rotation to 5 degrees to each side. He moved with a slow, antalgic gait.

The clinical examination further showed tenderness or pain when palpating the lumbar spine. See id. Muscle spasms affected gait and/or spine contour. The Veteran had variable strength in his lower extremities though no observable muscle atrophy. His deep tendon reflexes were absent at the right knee and ankle; he had hyperactive reflexes without clonus on the left. Sensation was decreased at the right upper anterior thigh, thigh/knee, and lower leg/ankle areas. Straight leg raise testing was negative bilaterally. There was no evidence of favorable or unfavorable ankylosis. There was no history of prescribed bed rest. A cane was being used constantly. 

The Veteran was afforded a third VA back conditions examination in April 2021. See May 2021 C&P Exam. The diagnosis was degenerative arthritis only. He reported back pain radiating into his right lower extremity. His treatment included CBD oil and creams. The flare-ups occur up to three times a month, lasting a week or more. His ability to lift, bend, or twist is limited. 

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 50 degrees, extend to 5 degrees, laterally flex 30 degrees to each side, and laterally rotate 30 degrees to each side during active and passive motion testing. There was pain at all planes during active and passive testing only. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's pain symptoms would cause additional loss of function and estimated that these symptoms would reduce the Veteran's range of motion but merely repeated the active range of motion values. 

The clinical examination showed no tenderness, muscle spasms, or guarding. See id. The Veteran had full strength in his lower extremities with no observable muscle atrophy. He had normal lower extremity deep tendon reflexes and sensation. Straight leg raise testing was negative bilaterally. There was no evidence of favorable or unfavorable ankylosis. A cane was being used constantly. 

The Veteran was afforded a fourth VA back conditions examination in February 2022. The diagnoses were lumbar spine degenerative arthritis with right lower extremity radiculopathy and IVDS. He reported using only CBD lotion. He described the pain as an ache in his back that intensifies with movement/motion. Flare-ups occur daily and last for less than half a day. He cannot sit, walk, drive, or stand for long periods and lifting, bending, and carrying items was becoming harder.

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 50 degrees, extend to 15 degrees, laterally flex to the right to 25 degrees, laterally flex to the left to 30 degrees, and laterally rotate zero degrees to each side during active motion testing. Passive testing was not preformed because it was medically contraindicated. There was pain at all planes during active testing only; there was no pain with weight- or nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's pain and lack of endurance would cause additional loss of function and estimated that these symptoms would reduce the Veteran's forward flexion to 40 degrees and extension to 10 degrees; no symptoms did not impact lateral flexion or rotation. 

The clinical examination showed no tenderness, muscle spasms, or guarding. See id. The Veteran had full strength in his lower extremities and no observable muscle atrophy. He had normal lower extremity deep tendon reflexes and sensation. Straight leg raise testing was positive on the right only. There was no evidence of favorable or unfavorable ankylosis. There was no history of prescribed bed rest. A cane was being used constantly and a brace occasionally. 

The Veteran was afforded a fifth VA back conditions examination in March 2022. He described the pain as always present, including during rest. He reported using only CBD lotion. Flare-ups occur weekly, lasting for several hours. His disability impacted his activities of daily living, including making it hard to walk.

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 45 degrees, extend to 15 degrees, laterally flex to 15 degrees to both sides, and laterally rotate to 15 degrees to each side during active and passive motion testing. There was pain at all planes during active and passive testing; there was no pain with weight- or nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's pain would cause additional loss of function and estimated that these symptoms would reduce the Veteran's forward flexion to 5 degrees with zero degrees of extension, lateral flexion, and lateral rotation. 

The clinical examination showed no tenderness, muscle spasms, or guarding. See id. The Veteran had grade 4 strength in his right lower extremity and full strength in his left; there was and no observable muscle atrophy. Deep tendon reflexes were hypoactive in the right lower extremity and normal in the left. Sensation was decreased in the right upper extremity only. Straight leg raise testing was positive on the right only. There was no evidence of favorable or unfavorable ankylosis. There was no history of prescribed bed rest. A cane was being used constantly. 

The Veteran was afforded a sixth VA back conditions examination in July 2023. He reported daily, severe low back pain, including shooting down his hip and into his right lower extremity. He reportedly denied flares though stated that the pain worsens when standing. He noted difficulty with walking.

The examination report, in part, noted that the Veteran had a reduced range of motion. See id. He could forward flex to 15 degrees, extend to zero degrees, laterally flex to zero degrees to both sides, and laterally rotate to zero degrees to each side during active and passive motion testing. There was pain at all planes during active and passive testing and with weight- and nonweight-bearing. There was no change to range of motion after three repetitions. The examiner opined that the Veteran's pain would not cause additional loss of function with respect to repetitive use over time or flares. 

The clinical examination showed moderate tenderness on palpation without muscle spasms or guarding. See id. The Veteran had full strength in his lower extremities; there was and no observable muscle atrophy. Deep tendon reflexes and sensation were normal. Straight leg raise testing was positive on the right only. There was no evidence of favorable or unfavorable ankylosis. There was no history of prescribed bed rest. A cane was being used constantly.

The Board finds the six previously summarized VA examination reports to be of some probative value and collectively gives the reports limited weight. See June 2019, February 2020, May 2021, February 2022, March 2022, and July 2023 C&P Exams. The examiners were qualified medical professionals who conducted in-person examinations and appear to have given some consideration to the Veteran's description of his symptoms, though some examiners appear to have found the statements more credible than other examiners. The results of range of motion testing and opinions as to how repetitive use over time and during a flare would reduce range of motion are not inconsistent with evidence elsewhere in the claims file. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. 

The Board has considered the lay statements. 38 U.S.C. § 1154(a); Layno, 6 Vet. App. at 470. The Veteran has reported a long history of back pain that has negatively impacted his ability to complete his activities of daily living. See, i.e., May 2019 VA Form 21-4138; January 2022 Correspondence; June 2023 SSA Records. Though competent to describe his symptoms during the appeal period, he does not have the requisite medical training or expertise to determine the current nature, extent, and severity of his symptoms as reflected by the applicable diagnostic criteria. Jones, 7 Vet. App. at 137-38. The contentions pertaining to the severity of his back disability, while probative, are less so than the range of motion values and general examinations documented by his providers, physical therapist, and the VA examiners. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435.

Having reviewed the evidence in the record at the time of the August 2023 rating decision, the Board finds that the evidence weighs against a rating in excess of the currently assigned 40 percent rating. The VA and private treatment records contain nothing that indicates the Veteran's back disability has resulted in unfavorable ankylosis of the thoracolumbar spine (and the cervical spine to support ankyloses of the entire spine). See generally CAPRI, Medical Treatment Record, SSA Records. The July 2023 examination report is the first documented report that forward flexion during active (and passive) range of motion testing was less than 30 degrees. The March 2022 and July 2022 examiners opined that forward flexion would be further reduced to 5 degrees after repetitive use over time and during flares. This is most consistent with favorable, not unfavorable, ankylosis. There is no evidence to suggest walking was difficult due to a limited line of vision, there was an issue related to opening of the mouth and chewing, breathing was limited, gastrointestinal symptoms, or dyspnea or dysphagia, which could support finding the functional equivalent to ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). 

The Board also considered the IVDS General Formula but there is no medical evidence that the Veteran has had any incapacitating episodes during a 12-month period, to include the period prior to VA receiving the May 2019 application for service connection for the back disability. 38 C.F.R. § 4.71a, DC 5243.

The Board has considered whether a higher rating would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The Board acknowledges the evidence of record indicating functional loss, which includes limitations related to prolonged exertional activities (such as sitting, standing, walking, and lifting/carrying) as well as postural activities (such as bending and squatting). He reports difficulty with ambulation due to back (and right knee) pain. However, the occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured. The Board finds that the assigned rating adequately contemplates the Veteran's disability picture, to include functional impairment and loss, throughout the appeal period.

Additionally, the Board has considered but finds no evidence that would support an additional separate rating for associated neurologic conditions beyond the service-connected right lower extremity radiculopathy (discussed herein below). 38 C.F.R. § 4.71a.

For the reasons above, the Board finds that the evidence persuasively weighs against granting a rating in excess of 40 percent for the back disability. The claim is denied.

Entitlement to a 20 percent disability rating for right knee meniscus tear status post arthroscopic surgery since February 16, 2021, but no earlier or higher.

Entitlement to a separate 20 percent disability rating for patellar instability of the right knee associated with the right knee meniscus tear since February 16, 2021, but no earlier or higher.

A February 2008 rating decision granted service connection for a right knee torn meniscus status post arthroscopic surgery. The rating decision assigned a 10 percent rating under DC 5260 (limitation of flexion) and 38 C.F.R. § 4.59 with an effective date of August 11, 2006. 38 C.F.R. § 4.71(a). 

The period for review in this matter is from January 18, 2021 (one year prior to the Veteran's January 2022 VA Forms 20-0995 & 21-8940). 38 C.F.R. § 3.400(o).

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered when determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.45. The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206-08; Johnson, 10 Vet. App. at 84-85. 

Painful motion is a factor when considering functional limitations of a joint disability. 38 C.F.R. § 4.59. Because VA is permitted to award the minimum compensable rating for a joint due to painful motion, testing must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. 158.

Disabilities directly related to the knee and leg are rated under DCs 5256 to 5263. 38 C.F.R. § 4.71a; 86 Fed. Reg. 8142 (Feb. 4, 2021). DC 5256 addresses ankylosis of the knee. A 30 percent rating for ankylosis is assigned when there is a favorable angle at full extension of the knee or ankylosis in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned for ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned for ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating (maximum) is assigned if the knee is ankylosed in flexion at an angle of 45 or more. 

DC 5257 addresses subluxation and instability of the knee in general as well as patellar instability. Id. A 10 percent rating is assigned if there is evidence of a sprain, incomplete ligament tear, or complete ligament tear (regardless of surgically status) causing persistent instability and no medical provider has prescribed an assistive device or bracing for ambulation. A 20 percent rating is assigned if there is evidence that a medical provider has prescribed an assistive device or brace for the sprain or ligament tear. A 30 percent rating (maximum) is assigned if there is evidence that a medical provider has prescribed both an assistive device and brace for an unrepaired or failed repair of a complete ligament tear. 

For patellar instability specifically, a 10 percent rating is assigned if the patellofemoral complex regardless of whether the condition has been surgically repaired. Id. A 20 percent rating is assigned if there is recurrent instability following surgically repair of the patellofemoral complex and a medical provider has prescribed a brace, cane, or walker. A 30 percent rating (maximum) is assigned if there is recurrent instability following surgically repair of the patellofemoral complex and a medical provider has prescribed both a brace and cane or walker.

Note 1 clarifies "patellofemoral complex" encompasses the quadriceps tendon, the patella, and the patellar tendon. Note 2 states that the surgical repair must involve a patellofemoral component that contribute to the underlying instability. For example, VA does not consider an arthroscopy to remove loose bodies and joint aspiration a qualifying surgical repair.

DCs 5258 and 5259 address issues relating to knee cartilage. Under DC 5259, a 10 percent rating is assigned for removal of symptomatic, semilunar cartilage. Under DC 5258, a 20 percent rating is assigned when there is evidence of dislocation with frequent episodes of locking, pain and effusion into the affected knee joint.

DC 5260 addresses limitation of flexion. Id. A noncompensable rating (zero percent) 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. A 30 percent rating (maximum) is assigned for flexion limited to 15 degrees. 

DC 5261 addresses limitation of extension. Id. 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 for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating (maximum) is assigned for extension limited to 45 degrees.

For comparison purposes, the normal range of motion of the knee is from zero to 140 degrees for flexion and extension. See id, Plate II. 

The Board acknowledges there are additional DCs for the knee and leg (5262 - impairment of the tibia and fibula; and 5263 - genu recurvatum). There is no evidence that the Veteran has been diagnosed with a bone fracture or deformity of the right knee. The Board has reviewed but finds these DCs not relevant to this appeal; they will not be discussed further.

Additionally, for non-initial increased rating claims, when medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (The plain language of 38 U.S.C. § 5110(b)(2) imposes a condition, permitting application of this earlier date only "if application is received within one year from such date.").

A review of the medical evidence in the claims file shows that the Veteran has reported he initially injured his right (and left) knee while playing football in or around 2004. See January 2010 STRs; March 2023 CAPRI. In or around March 2006, during his third week of basic training, he reported right knee pain. A right knee arthroscopy with partial lateral meniscectomy, chondroplasty of the posterior patella, and arthroscopic lateral release was completed in August 2007. He underwent at least one additional right knee surgery, an arthroscopy debridement with open biocartilage to the patella, in May 2017. See May 2017 Medical Treatment Record; see also SSA Records (Medical Treatment Record). 

The VA treatment records show that the Veteran continued to report right knee pain. On February 16, 2021, he established care at the Pensacola VA Clinic. See January 2022 CAPRI. In March 2021, he completed a physical therapy evaluation. The therapist noted, in part, that the Veteran ambulated with a cane (left hand) and he had a mildly antalgic gait. He had a full, active range of motion of his right knee. There was mild edema, crepitus, and lateral patellar tracking present. Imaging showed mild tri-compartment osteoarthritis with patella alta and tiny joint effusion. During a May 2021 encounter, he reported using Tramadol in the past and that he was now using only CBD oil to address his knee (and back) pain. The clinical examination showed full range of motion of all extremities; there was no edema or mobility limitation. An April 2023 treatment note shows the Veteran requested a referral for a knee brace.

The Board recognizes that the Veteran was remotely afforded VA examinations of his right knee in 2008 and 2012. The Board finds these reports not probative since they document findings nearly ten years prior to the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

Following receipt of the January 2022 VA Form 21-8940, the Veteran was afforded a VA knee and lower leg conditions examination in February 2022. The diagnoses were right knee torn meniscus stat post arthroscopic surgery with residual scar. He reported injuring his right knee when he fell on ice and subsequently had shrapnel wedged under his patella (statements which are not consistent with his service treatment records (STRs)). He had undergone more than 12 surgeries on his right knee (a statement not consistent with the medical record though it is unclear whether he was including injections he had received). His symptoms - a dull ache, sharpness, or tightness - had progressively worsened. He denied using oral pain medication; he was only using CBD lotion, which did resolve some of the pain. He experienced flare ups when completing his activities of daily living, which lasted less than a day, 2 to 3 times a week. The condition limited his functioning; he was unable to sit, walk, drive, or stand for long periods. 

The examination report, in part, notes that the Veteran had a reduced range of motion in the right knee. See id. He was able to flex to 120 degrees and extend to zero degrees during active and passive testing. There was no evidence of pain, including with weight- and nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that the Veteran's report of pain would cause additional loss of function and estimated that the pain symptoms would reduce the Veteran's right knee flexion to 110 degrees in both instances; the pain did not impact extension. The examiner also tested the left knee.

The clinical examination was positive for crepitus. See id. There was no localized tenderness or pain on palpation of either knee. There was no observed muscle atrophy or evidence of ankylosis. There was no history of subluxation or instability, including patellar instability, or recurrent effusion of the right knee. He had a history of surgical repairs. He was prescribed a cane. 

The Veteran was afforded a second VA knee and lower leg conditions examination in July 2023. The diagnoses were right knee meniscal tear and arthroscopic surgery with residual scar. The Veteran reported he injured his right knee when he encountered an explosive device and was hit with metal (a statement which is not consistent with his STRs). He had undergone multiple surgeries. The knee pain occurred on a daily basis. He also noted popping and instability. He reportedly denied flare ups, functional limitations, instability/subluxation, or knee effusion. 

The examination report, in part, notes that the Veteran had a reduced range of motion in the right knee. See id. He was able to flex to 120 degrees and extend to zero degrees during active and passive testing. Pain was present during both flexion and extension; there was also pain during weight- and nonweight-bearing. There was no change to range of motion after three repetitions. Not examined after repetitive use over time or during a flare, the examiner opined that there would be no change to the Veteran's functional ability. Of note, the report suggests that the left knee was not tested. 

The clinical examination was positive for crepitus and moderate tenderness/pain at the lateral, superior, and inferior patellar tendons. See id. There was no observed muscle atrophy or evidence of ankylosis. The examiner found "recurrent subluxation or persistent instability" of the right knee but did not elaborate; there was no patellar instability. He had a history of a meniscectomy with residuals of pain, stiffness, and instability. He had been prescribed a cane secondary to the meniscal tear. 

The Board finds the February 2022 and July 2023 VA examination reports of some probative value and collectively gives the reports limited weight. The examiners were qualified medical professionals who conducted in-person examinations. The February 2022 examiner appears to have considered the Veteran's lay statements when providing an estimate about how the knee pain symptoms could reduce his range of motion after repetitive use over time and during a flare. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. 

Of note, the February 2022 VA examiner did not check that there was evidence of pain with weight- and nonweight-bearing tasks. The Board finds no explicit statement addressing the pertinent observations elsewhere in the report, including in the Remarks section (where the examiner explained why passive range of motion testing was not performed). The Board has considered the entirely of the examination report and is satisfied that the examiner observed but found no evidence of pain during weight- and nonweight-bearing tasks. Correia, 28 Vet. App. at 168. 

Additionally, the Board has considered the lay statements. 38 U.S.C. § 1154(a); Layno, 6 Vet. App. at 470. The Veteran has reported a long history of right knee pain. In May 2021, he stated that the right knee dislocates when he walks more than a block. See January 2022 CAPRI. He noted instability and that his right knee pops during the July 2023 VA examination. The Board finds the Veteran competent to describe his symptoms during the appeal period. He, however, does not have the requisite medical training or expertise to determine the current nature, extent, and severity of his symptoms as reflected by the applicable diagnostic criteria. Jones, 7 Vet. App. at 137-38. The contentions pertaining to the severity of his right knee disability, while probative, are less so than the range of motion values and general examinations documented by his providers, physical therapists, and the VA examiners. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435.

The Board notes that VA originally awarded the Veteran a 10 percent rating for pain associated with the right knee disability under DC 5260 pursuant to 38 C.F.R. § 4.59. See February 2008 Rating Decision - Narrative. 

Having reviewed the evidence in the record at the time of the August 2023 rating decision, the Board finds the more appropriate evaluation of the Veteran's history of a meniscal tear is that of a cartilage-related disability, which is evaluated under DCs 5258 and 5259. The STRs show a symptomatic meniscus tear and that he underwent a partial lateral meniscectomy in 2007. See January 2010 STRs. He has continued to report right knee pain. During an office visit in May 2021, he reported that his right knee would dislocate when he walked more than two blocks at a time. See January 2022 CAPRI. He has clearly experienced residuals relating to the service-connected meniscal tear. Though there is no evidence of locking and there are a few references to knee effusion in the medical records, the Board finds the reoccurrence of the right knee dislocating and near constant right knee pain treated with oral and topical medication is more consistent with assigning a rating under the higher DC, DC 5258, since February 16, 2021 (the date the Veteran established care with the Pensacola VA Clinic). 38 C.F.R. §§ 3.400(o), 4.7; see also Jones, 26 Vet. App. at 61. 

With respect to both DC 5260 and 5261, the evidence does not show the Veteran's right knee range of motion has been significantly limited. The clinical examinations completed by his providers generally described his range of motion as "full." See generally CAPRI. The VA examiners noted a loss of 20 degrees during active range of motion testing; he was able to extend to zero. One of the VA examiners opined that the pain symptoms after repetitive use over time or during a flare would only erode flexion by another 10 degrees. The clinical findings and opinion evidence do not support the rating criteria for either DC. 

The regulation clearly states that the intent is to recognize symptoms, such as painful motion, and provide a veteran the minimum compensable rating for that joint. Id (emphasis added); see also 29 Fed. Reg. 6718 (May 22, 1964). While a veteran may be entitled to multiple separate ratings for a knee disability, the disability relates to a single joint. A veteran is only entitled to a rating relating to pain, including painful motion, under one DC for a single joint. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 487-88 (1991). As previously noted, pain is a criterion of DC 5258. Awarding a second 10 rating for painful motion under DC 5260, or DC 5261, pursuant to 38 C.F.R. § 4.59 would result in impermissible pyramiding. 38 C.F.R. § 4.14.

The Board, however, does find a separate rating is warranted under DC 5257. A February 2007 MRI showed mild to moderate patella and trochlear chondromalacia. In August 2007, the Veteran underwent a chondroplasty of the posterior patella and lateral release in addition to the partial meniscus repair. In May 2017, a debridement with open biocartilage to patella was performed secondary to complaints of right knee pain and instability, and VA awarded a convalescent rating. See May 2017 Medical Treatment Record; July 2017 & August 2017 Rating Decision - Narratives. In March 2021, a physical therapist observed the Veteran ambulating with a cane. See January 2022 CAPRI. Patellar tracking was present. At the July 2023 VA examination, he again reported symptoms of instability and popping. The only assistive device he was using for his right knee was a cane. 

The medical evidence shows patellar instability. Though the Veteran may have been prescribed a knee brace (which he reported using only at work in March 2016), there is no evidence that a knee brace was prescribed, and used, during the appeal period. In fact, an April 2023 entry suggests he contacted his provider for a referral to obtain a knee brace. See May 2023 CAPRI. The VA treatment records, and February 2022 and July 2023 VA examination reports refer only to the Veteran using a cane. Thus, the Board finds a separate 20 percent disability rating under DC 5257 since February 16, 2021 (the date the Veteran established care with the Pensacola VA Clinic) is also warranted. 38 C.F.R. § 3.400(o).

The Board has considered if there is another DC that could avail the Veteran of a higher rating, specifically DC 5256. However, there is no competent or credible evidence that his right knee disability has manifested in ankylosis or the functional equivalent of ankylosis during the appeal period. 38 C.F.R. § 4.71(a), DC 5256. He has not asserted nor does the evidence show that his right knee range of motion was non-existent or that it remained in a fixed position. Clinical examinations have shown he has maintained no less than 120 degrees of flexion during active range of motion testing. See January 2022 CAPRI; February 2022 & July 2023 C&P Exams. Though less than full, he has maintained active movement in his right knee. 

The Board has also considered whether the Veteran has used medication in general and if any medication has provided any ameliorative benefits when evaluating whether a higher rating is warranted. See Ingram, __ Vet. App. at __; Jones, 26 Vet. App. at 61. There are inconsistent statements as to whether he has used oral medication in addition to topical creams to address his pain symptoms. The Board found nothing in the VA treatment records or VA examination reports that would suggest the knee disability would be significantly worse, such as reduce his right knee flexion to 60 degrees or limit extension to 15 degrees, had the Veteran stopped using medication.

For the reasons above, the Board finds that the evidence persuasively weighs in favor of granting a 20 percent rating under DC 5258 (rather than DC 5260) for the residuals of the meniscal tear with an effective date of February 16, 2021. The evidence also warrants a separate 20 percent disability rating for patellar instability with an effective date of February 16, 2021. The claim is granted to that extent.

Entitlement to a compensable rating for right knee scar status post arthroscopic surgery.

The AOJ has rated the Veteran's right knee scars under DC 7802. 

The period for review in this matter is from January 18, 2021 (one year prior to the Veteran's January 2022 VA Forms 20-0995 & 21-8940) to the August 2023 rating decision on appeal. 38 C.F.R. § 3.400(o).

Scars in general are rated under DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. §§ 4.118; 83 Fed. Reg. 32592 (July 13, 2018). DC 7801 evaluates deep and nonlinear burn scars and scars due to other causes that are not of the head, face, or neck that are associated with underlying soft tissue damage. A 10 percent rating is warranted for a scar(s) with an area or areas greater than 6 but less than 12 in2, or at least 39 but less than 77 cm2. A 20 percent rating is warranted for a scar(s) with an area or areas at least 12 but less than 72 in2, or at least 77 but less than 465 cm2. A 30 percent rating is warranted for a scar(s) with an area or areas at least 72 but less than 144 in2, or at least 465 but less than 929 cm2. A 40 percent rating is warranted for a scar(s) with an area or areas of 144 in2 or greater, or 929 cm2 of greater.

Note (1) clearly identifies six zones of the body - four extremities, the anterior trunk, and the posterior trunk - and that the anterior and posterior trunk are divided by the midaxillary line. Id. Note (2) allows the rating to be based on the higher of a combined rating under 38 C.F.R. § 4.25 after separately evaluating each affected zone of the body or a rating based on the total area of the affected zones.

DC 7802 evaluates superficial and nonlinear burn scars and scars due to other causes that are not of the head, face, or neck that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. A 10 percent rating is warranted for a scar(s) with an area or areas of 144 in2 or greater, or 929 cm2 or greater. 

Note (1) to the DC identifies the six separate zones and Note (2) addresses the ability to combine the ratings for the separate zones under 38 C.F.R. § 4.25.

DC 7804 evaluates scars that are unstable and/or painful. 38 C.F.R. § 4.118. A 10 percent rating is warranted for 1 to 2 painful or unstable scars. A 20 percent rating is warranted for 3 to 4 painful or unstable scars. A 30 percent rating is warranted for 5 or more painful or unstable scars.

Note (1) defines an unstable scar as a scar where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if any scar is both unstable and painful, a 10 percent rating is added to the evaluation based on the total number of scars. Note (3) clarifies a veteran is entitled to a rating under 7804 as well as DCs 7800, 7801, 7802, and 7805 for the same scar, i.e., ratings under these DCs will not result in pyramiding. 

DC 7805 evaluates other scars, including linear scars, and other effects of scars not addressed in DCs 7800, 7801, 7802, or 7804. The rating official is directed to evaluate any additional "disabling effects" not considered in DCs 7800, 7801, 7802, or 7804 under an appropriate DC elsewhere in Part 4. 

The Board acknowledges there is an additional DC for scars, DC 7800, but it is relevant only when the issue relates to a scar present on the head, face, or neck, which is not the issue in this appeal. Thus, the Board will not discuss this DC any further. 

On review of the record, the evidence persuasively weighs against awarding a compensable rating for the right knee scars. The private and VA treatment records show no complaints related to any surgical scars associated with the right knee, including related to the last surgical procedure in May 2017. See generally CAPRI & Medical Treatment Records. 

The Veteran was afforded a VA knee conditions and scar examination in February 2022. The diagnoses included "post op vertical linear scar from numerous right patella of the knee surgeries." The examiner identified a single scar at the midline of the right patella of the knee. It was measured as 12 cm by 0.3 cm, or 3.6 cm2. There was no objective evidence that the scar was painful or unstable; it was further described as healed. There was no evidence of underlying tissue damage. The examiner found no evidence that the scar limited the function of the Veteran's right knee or right lower extremity in general.

The Veteran was afforded a second VA knee conditions and scar examination in July 2023. This examiner documented 3 scars. One scar was present at the midline of the right patella; it measured 4 centimeters by 0.5 centimeters. A second scar was present along the lateral aspect of the right knee; it measured 1 cm by 0.1 cm. A third scar was present along the lateral aspect of the right knee; it measured 1 cm by 0.1 cm. The total area of the right lower extremity scars was noted to be 2.2 cm2. There was no objective evidence that the scars were painful, tender, unstable, or associated with underlying tissue damage. The examiner found no evidence that the scar limited the function of the Veteran's right knee or right lower extremity in general.

The Board finds that the February 2022 and July 2023 VA examination reports probative evidence and affords the reports limited weight. The reports provide the Board with a description of the scars during the appeal period. Though the number of scars and measurements differ, the Board finds the differences insignificant given the total area of the scars (maximum being 3.6 cm2) and the minimum area needed for a compensable rating (144 in2). Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124.

The Board finds the evidence of record persuasively weighs against the assignment of a compensable evaluation under DC 7802. The Veteran's right knee scars manifested in a total area well under 144 in2 (929 cm2).

The Board has also considered the other DCs pertaining to scars. The scars are associated with the right knee and not the head, face, or neck. The scars have not been described to include underlying soft tissue damage. See, i.e., February 2022 & July 2023 C&P Exams. Moreover, there is no evidence that any scar was unstable or painful/tender during the appeal period. The Veteran has not reported any skin-related problems or pain directly associated with any scar. See generally CAPRI & Medical Treatment Records. Thus, DCs 7800, 7801, and 7804 are inapplicable. There is also no evidence that any of the scars have caused other disabling effects not considered when evaluating the scars under DCs 7800, 7801, 7802, or 7804, such as limitation of motion of the right knee. 38 C.F.R. § 4.118, DC 7805.

The Board acknowledges that the Veteran may believe that the scars are more severe than the assigned rating reflects. Moreover, he is competent to report observable symptoms. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435. However, he has not asserted, and medical treatment records do not show, that his right knee scars were painful, the skin unstable, or that the scars were associated with underlying soft tissue damage and covered an area of no less than 144 in2. See, i.e., January 2022 Correspondence; March 2023 VA Form 20-0995; July 2024 VA Form 10182; February 2022 & July 2023 C&P Exams.

For the reasons above, the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for the service-connected right knee scars status post arthroscopic surgery. The claim for a compensable rating is denied. 

TDIU

The regulations include rating schedules that guide the evaluation of disabilities related to diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. Part 4. The percentages represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In general, the criteria specified for a given rating is considered adequate to compensate the veteran for loss of working time from exacerbations or illnesses proportionate to the severity of the disability. Id. 

A TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In general, if there is only one such disability, this disability must be rated at 60 percent or more. Id. If there are two or more disabilities, at least one disability must be rated at 40 percent or more, and the service-connected disabilities in combination result in a combined rating of 70 percent or more. Id. A veteran need not show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

VA treats the following disabilities as "one" disability when calculating the combined rating: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of 38 C.F.R. § 4.16(a) requires the use of the combined rating table).

In determining whether a veteran is unemployable for VA purposes, an individualized determination specific to a veteran's particular circumstances must be made. 38 C.F.R. §§ 3.341, 4.16, 4.19; Todd v. McDonald, 27 Vet. App. 79, 85 (2014). In Ray v. Wilkie, the Court of Appeals for Veterans Claims directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray, 31 Vet. App. 58, 73 (2019). The veteran's age and any impairment solely related to nonservice-connected disability is not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Brown, 5 Vet. App. 524 (1993) (the central inquiry in determining whether a veteran is entitled to a TDIU is whether the service-connected disabilities alone are of sufficient severity to produce unemployability).

The question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For new claims for an increase in severity, the increase may be effective as of the day the increase was "factually ascertainable" if within one year of the claims; if not, the effective date is the date of the claim. Gaston v. Shinseki, 605 F. 3d 979 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

In determining when an increase is "factually ascertainable," VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the evidence persuasively favors one side, the evidence is not in approximate balance and the benefit-of-the-doubt rule will not be applied. Lynch, 21 F.4th at 781-82.

Entitlement to a TDIU rating since February 16, 2021.

The August 2023 rating decision codesheet shows that the Veteran had the following service-connected disabilities and the pertinent ratings for each service-connected disability during the appeal period as follows: lumbar spine degenerative arthritis with IVDS associated with right knee torn meniscus, rated at 40 percent as of May 15, 2019; right lower extremity radiculopathy associated with the lumbar spine degenerative arthritis with IVDS, initially rated at 10 percent as of May 15, 2019, and increased to 20 percent as of April 27, 2021 (as restored herein); right knee torn meniscus, rated at 10 percent as of August 11, 2006, a temporary convalescence awarded effective on May 15, 2017, a 10 percent rating as of September 1, 2017, and herein increased to 20 percent and a separate award of 20 percent under DC 5258 as of February 16, 2021; tinnitus, rated at 10 percent as of November 23, 2011; and noncompensable ratings for bilateral hearing loss and right knee arthroscopic scars. 

The Board finds that the Veteran has met the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) since February 16, 2021, the effective date for the award of a higher rating under DC 5258 (rather than 5260) and separate rating under DC 5257 granted herein for the right knee disability. The Veteran has been in receipt of a 40 percent rating for his back disability and his combined disability rating as granted herein has been at least 70 percent since February 16, 2021. See generally, Rating Decision - Codesheets. 

The question left before the Board is whether the Veteran has been unable to secure and follow a substantially gainful occupation due to one or more of his service-connected disabilities. The Board considered various records, including medical and lay evidence. The Board concludes that the evidence weighs in favor of finding the Veteran has not been able to secure or follow a substantially gainful occupation because of his service-connected disabilities, specifically his right knee disability, back disability, and right lower extremity radiculopathy, and that a schedular TDIU rating has been warranted since February 16, 2021.

The Board has considered the economic component of the TDIU analysis. The competent evidence in the record shows that the Veteran has not worked since late 2016. See January 2022 SSA Letter; January 2022 VA Form 21-8940; January 2022 Third Party Correspondence; January 2022 Correspondence; March 2023 VA Form 20-0995; March 2023 Medical Treatment Record; June 2023 SSA Records; July 2024 VA Form 10182. The economic component is met.

The Board has considered the non-economic components of the TDIU analysis. The Veteran completed two years of college (marine biology). See January 2022 VA Form 10182. He worked as in equipment maintenance (cleaning tents) and as a security officer. See also March 2023 Medical Treatment Record; June 2023 SSA Records.

The record includes various VA examination reports addressing the Veteran's physical capacity to perform occupational-related activities over the course of the appeal period. Focusing on those examinations that address the Veteran's right knee, back, and right lower extremity radiculopathy disabilities, the Veteran was afforded VA examinations addressing the back and right lower extremity disabilities in June 2019, January 2020, April 2021, February 2022, March 2022, and July 2023. See June 2019, February 2020, May 2021, February 2022, March 2022, & July 2023 C&P Exams. The examiners collectively described the limitations related to the back disability as follows: lifting 5 pounds, walking 20 feet (with pain), standing for 5 minutes (with pain), sitting in general, no squatting, and a limited inability to bend over even slightly. 

The June 2019 and February 2020 VA examination reports addressing the back collectively describe the Veteran as being able to walk only 20 feet, lift no more than 5 pounds, stand for only 5 minutes, and unable to squat; all activities result in pain. 

The April 2021 VA examination report addressing the back describes the Veteran's back condition resulted in a decreased range of motion that limited his ability to lift, bend, and twist. See May 2021 C&P Exam.

The February 2022 and July 2023 VA examination reports addressing the right knee collectively describe the Veteran as being unable to sit, walk drive, or stand for extended periods. His ability to extend his right lower extremity was also limited.

The February 2022 VA examiner completed individual unemployment statements. This examiner found that the back, right lower extremity radiculopathy, and right knee disabilities would still allow the Veteran to perform sedentary work over the course of an 8-hour workday. Sedentary was defined, in part, as, "[e]xerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull" awhile "sitting most of the time, but may involve walking or standing for brief periods of time." 

The Veteran submitted a private opinion from a vocational consultant. See March 2023 Medical Treatment Record. Citing the United States Department of Labor's Dictionary of Occupational Titles (D.O.T.), the vocational consultant defined sedentary work as follows: 

Work that involves exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or an negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift[,] carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

The vocational consultant found the Veteran's lay statements credible in combination with the medical evidence and opined that the Veteran's service-connected disabilities preclude competitive, sedentary employment. For example, he cannot sit for a prolonged period, which is the most basic physical requirement for a sedentary occupation. His service-connected conditions would also likely preclude him from being able to stand and/or walk for 1/3 of the workday on a consistent and reliable basis.

The Board finds all of these opinions probative though assigned the greatest weight to the private opinion. The private vocational consultant provided a detailed, thorough review of the various VA examination reports as well as other evidence in the claims file. All of the opinions appear to have taken into account the Veteran's lay statements about how his disabilities impacted his ability to engage in his activities of daily living in general, and thus limit his ability to complete a range of basic work activities. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. 

The Board considered the February 2022 VA examiner's opinions addressing the Veteran's tinnitus and hearing loss but affords them no weight because it is reasonable that the hearing loss and tinnitus would require some degree of environmental restrictions related to work-place noise though the disability would not necessarily preclude the Veteran securing or engaging in a substantially gainful occupation. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124.

The Board recognizes that the record also contains opinion statements that were prepared in relation to the Veteran's application for disability benefits through the Social Security Administration. See March 2016 & June 2023 SSA Records. These opinions are not probative because they are outside of the appeal period, are not limited to the Veteran's service-connected disabilities, and take into account factors VA does not consider pertinent to the analysis (such as a veteran's age). 38 C.F.R. §§ 3.341, 4.16, 4.19.

The Board has given due consideration to the Veteran's lay statements. 38 U.S.C. § 1154(a); Layno, 6 Vet. App. at 470; see also January 2022 Correspondence; March 2023 Medical Treatment Record. The Veteran's general assertions that he has been unable to work because of his service-connected disabilities are probative and in line with the previously discussed opinions. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435. 

Having considered the above summarized private opinion and VA examination reports and opinions, the Board finds that the Veteran has been unable to secure or follow gainful employment due to the combination of his service-connected right knee disability, back disability, and right lower extremity radiculopathy since at least February 16, 2021. It is reasonable that the Veteran's pain symptoms in general and limited range of motion of his back have limited him to less than sedentary occupations, which are generally defined as involving no greater than 10 pounds of lifting and carrying and would require sitting for prolonged periods with only brief periods of standing or walking. See February 2022 C&P Exams; March 2023 Medical Treatment Record. Moreover, his right knee and back conditions have reasonably eroded his ability to complete sedentary occupations due to his inability to sit for even six hours in total over the course of a workday on a reliable and consistent basis. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected right knee disability and back disability with right lower extremity radiculopathy have rendered him unable to secure and/or follow even substantially gainful occupation at even a sedentary level since February 16, 2021. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781. Thus, the claim for a schedular TDIU rating since February 16, 2021, is warranted, and the claim granted to this extent.

REASONS FOR REMAND

As set forth above, prior to February 16, 2021, the Veteran was service connected for lumbar spine degenerative arthritis with IVDS associated with right knee torn meniscus rating at 40 percent, right lower extremity radiculopathy associated with the lumbar spine degenerative arthritis with IVDS rated at 10 percent, right knee torn meniscus rated at 10 percent, and tinnitus rated at 10 percent, for a combined rating of no more than 60 percent.

Because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, with at least one disability at 40 percent, to include after consideration of the 38 C.F.R. § 4.25(b) regarding disabilities arising from a single disease entity, he does not meet the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a).

Nevertheless, where the percentage requirements for a schedular TDIU rating are not met, a TDIU rating on an extraschedular basis may be granted for a veteran who is unable to secure and follow a substantially gainful occupation by reason of their service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Though the Veteran's attorney requests the Board assigned an extraschedular TDIU rating in the first instance, the Board does not have the authority to do so. See July 2024 VA Form 10182; see also Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board must refer the matter to the Director of Compensation Service for an assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. at 66. Only thereafter does the Board have jurisdiction to review the entirety of the Director's decision as to an extraschedular TDIU rating and may assign an extraschedular TDIU rating if appropriate under the facts specific to the veteran. Kuppamala, 27 Vet. App. at 457.

Referral to the Director for consideration of an extraschedular TDIU rating is proper when there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of their service-connected disabilities. Here, the evidence shows that the Veteran has not worked since the end of 2016. See, i.e., January 2022 SSA Letter; January 2022 VA Form 21-8940; January 2022 Third Party Correspondence. As stated herein above, the Board has found entitlement to a TDIU rating based on the right knee disability and back disability with right lower extremity radiculopathy is warranted for the period in which the Veteran met the schedular criteria. Moreover, the June 2019 and February 2020 VA examination report suggest the Veteran had significant work-related limitations prior to February 16, 2021.

As such, the Board finds it necessary to refer this matter to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 20.802(a).

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The matter is REMANDED for the following action:

Refer the Veteran's claim of entitlement to TDIU for the period prior to February 16, 2021, to the Director of Compensation Service for consideration of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b).

 

 

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Burden, 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.