DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

J. SAIKH · 2026 · Case ID: A26028223

MIXED

Summary

The veteran, who served from July 2002 to November 2008, including service in the Southwest Asia theater during the Persian Gulf War, appeals the denial of service connection for a left knee disorder and seeks increased ratings for several service-connected conditions. The Board granted increased ratings for cervical spine strain with degenerative arthritis to 30 percent, for right knee patellofemoral pain syndrome and patellar chondromalacia to 30 percent, and for lumbar spine strain with status post coccyx fracture to 40 percent. Service connection was also granted for headaches, sinusitis (presumptively due to particulate exposure), and irritable bowel syndrome (IBS) on a presumptive basis under Persian Gulf War regulations. The Board granted secondary service connection for right and left lower extremity radiculopathy due to the service-connected lumbar spine disorder. The denial of service connection for a left knee disorder was upheld, with the Board finding the private medical opinion less probative than the VA opinion due to inconsistencies and lack of corroboration with the medical record. The Board found the evidence for the lumbar spine disorder to be in approximate balance, granting a 40 percent rating based on limited forward flexion during flare-ups, applying the benefit of the doubt. For headaches, the Board found the evidence in approximate balance between the VA and private opinions, granting service connection for headaches based on the benefit of the doubt. Service connection for sinusitis was granted presumptively due to particulate exposure, and IBS was granted presumptively under Persian Gulf War regulations.

Rationale

Forward flexion limited to 15 degrees or less; No unfavorable ankylosis or IVDS found; Pain and limited motion contemplated in 30% rating

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220713-259199

Full Decision Text

Citation Nr: A26028223
Decision Date: 03/27/26 Archive Date: 03/27/26

DOCKET NO. 220713-259199
DATE: March 27, 2026

ORDER

Entitlement to an evaluation of 30 percent, but no higher, for cervical spine strain with degenerative arthritis, is granted.

Entitlement to an evaluation of 30 percent, but no higher, for right knee patellofemoral pain syndrome and patellar chondromalacia, (right knee disorder) is granted.

Entitlement to an evaluation of 40 percent, but no higher, for lumbosacral spine strain with status post coccyx fracture and contusion, (lumbar spine disorder), is granted.

Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a service-connected lumbosacral spine disorder, is granted.

Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a service-connected lumbosacral spine disorder, is granted.

Entitlement to service connection for headaches is granted.

Entitlement to service connection for sinusitis, to include as due to particulate exposure, is granted.

Entitlement to service connection for irritable bowel syndrome (IBS) is granted.

Entitlement to service connection for a left knee disorder is denied.

FINDINGS OF FACT

1. The Veteran's forward flexion of the cervical spine has been limited to 15 degrees or less during the relevant appeal period, but her cervical spine disability was not manifested by unfavorable ankylosis of the entire cervical spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

2. The Veteran's service-connected right knee disability has been productive of actual or functional flexion limited to 10 degrees during the relevant period. Her right knee disability has not been productive of actual or functional extension limited to 10 degrees; recurrent subluxation or lateral instability; patellar instability; ankylosis; symptomatic removal of the semilunar cartilage; dislocated semilunar cartilage; impairment of the tibia and fibula other than shin splints; or genu recurvatum.

3. The Veteran's forward flexion of the thoracolumbar spine has been limited to 30 degrees or less during the period on appeal, but she has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine.

4. The Veteran's right lower extremity radiculopathy is related to her service-connected lumbar spine disorder.

5. The Veteran's left lower extremity radiculopathy is related to her service-connected lumbar spine disorder.

6. The Veteran's headaches are related to her military service.

7. The Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War, and she is presumed to have been exposed to fine particulate matter during such service. She also has a diagnosis of sinusitis.

8. The Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War and has a diagnosis of IBS that has manifested to a compensable degree.

9. The Veteran has not been shown to have a current left knee disorder that manifested in service or that is otherwise related to her military service.

CONCLUSIONS OF LAW

1. The criteria for an evaluation of 30 percent, but no higher, for cervical spine strain with degenerative arthritis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237.

2. The criteria for an evaluation of 30 percent, but no higher, for a right knee disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5260.

3. The criteria for an evaluation of 40 percent, but no higher, for a lumbar spine disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

4. Right lower extremity radiculopathy is due to or the result of the Veteran's service-connected lumbar spine disorder. 38 U
102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5260.

4. Right lower extremity radiculopathy is due to or the result of the Veteran's service-connected lumbar spine disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

5. Left lower extremity radiculopathy is due to or the result of the Veteran's service-connected lumbar spine disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

6. The Veteran's headaches were incurred in service. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.320.

8. The criteria for service connection for irritable bowel syndrome (IBS) as a qualifying chronic disability have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317.

9. The Veteran's current left knee disorder was not incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2002 to November 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from two separate April 2022 rating decisions.

The Veteran submitted a VA Form 10182 in July 2022 and selected the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2022 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or her representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding some claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board also notes that in a July 2022 brief, the Veteran's representative included a discussion of an effective date for the Veteran's claims. To the extent this was an attempt to raise an effective date claim, the Board notes that the AOJ did not assign an effective date or adjudicate the issue of entitlement to an earlier effective date for any of the above captioned disorders in the April 2022 rating decisions on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that an effective date cannot be challenged with a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). If a claimant wishes to obtain an effective date earlier than that assigned in a rating decision, the claimant must file a timely appeal to that decision awarding the benefit or submit new and material evidence within the one-year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error (CUE), in the decision assigning the effective date, the reversal of which would result in an earlier effective date. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105; Rudd, 20 Vet. App. 296 at 299. Therefore, the Board finds that there are no earlier effective date claims currently on appeal.

Law and Analysis

The Veteran and her representative have not raised any issues with the pre-decisional duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a); Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding that secondary service connection is warranted under the causation standard of 38 U.S.C. § 1110 where a nonservice-connected disability would have been less severe but for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the nonservice-connected disability). The Federal Circuit has held that 38 C.F.R. § 3.310(b) is inconsistent with 38 U.S.C. § 1110.

Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.

There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is a condition that, by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317.

Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b).

A medically unexplained chronic multi-symptom illness is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).

In August 2022, Congress enacted the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). Pub. L. No 117-168, § 3373, 136 Stat. 1759 (2022). As noted above, service connection may be granted for veterans who served in the Southwest Asia Theater during the Persian Gulf War and exhibit objective indications or symptoms of a qualifying undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI). Prior to August 10, 2022, the enactment of the PACT Act, service connection was warranted so long as the objective symptoms occurred either during service in the Southwest Asia Theater or manifested to a degree of 10 percent or more not later than December 31, 2026, and cannot be attributed to any known clinical cause. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. On or after August 10, 2022, the requirement that the condition manifest to a certain degree was eliminated by the PACT Act. 38 U.S.C. § 1117.

Under the PACT Act, unless affirmative evidence establishing otherwise, any covered veteran is presumed to have been exposed to certain substances, chemicals, and airborne hazards during their service. A "covered veteran" means any veteran who on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or United Arab Emirates; or on or after September 11, 2001, performed active military, naval, air, or space service while assigned to a duty station in Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Yemen, Uzbekistan, or any other country determined relevant by the Secretary. When certain diseases diagnosed after service manifest in a covered veteran, such disability shall be considered to have been incurred in or aggravated during active military, naval, air, or space service, notwithstanding that there is no record of evidence of such disease during the period of service. See 38 U.S.C. §§ 1119, 1120 (as amended by the P
Oman, Qatar, Saudi Arabia, Somalia, or United Arab Emirates; or on or after September 11, 2001, performed active military, naval, air, or space service while assigned to a duty station in Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Yemen, Uzbekistan, or any other country determined relevant by the Secretary. When certain diseases diagnosed after service manifest in a covered veteran, such disability shall be considered to have been incurred in or aggravated during active military, naval, air, or space service, notwithstanding that there is no record of evidence of such disease during the period of service. See 38 U.S.C. §§ 1119, 1120 (as amended by the PACT Act, Pub. L. 117-168 (Aug. 10, 2022)).

Effective August 5, 2021, VA amended its regulations to establish presumptive service connection for three chronic respiratory diseases associated with presumed exposure to fine particulate matter, including sinusitis and rhinitis. 86 Fed. Reg. 42724 (Aug. 5, 2021) (interim final rule codified at 38 C.F.R. § 3.320).

Under 38 C.F.R. § 3.320, service connection shall be granted for certain chronic diseases associated with exposure to fine particulate matter even though there is no evidence of such disease during the period of military service. A veteran who has a qualifying period of service shall be presumed to have been exposed to fine particulate matter during such service, unless there is affirmative evidence to establish that the veteran was not exposed to fine particulate matter during that service. The term "qualifying period of service" means any period of active military, naval, or air service in the Southwest Asia theater of operations, as defined in 38 C.F.R. § 3.317 (e)(2), during the Persian Gulf War as defined in 38 C.F.R. § 3.2 (i); or, in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War as defined in 38 C.F.R. § 3.2 (i). The disease shall not be presumed service-connected if there is affirmative evidence that: (1) the disease was not incurred during or aggravated by a qualifying period of service; or, (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or, (3) the disease is the result of the veteran's own willful misconduct.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Right and Left Lower Extremity Radiculopathy

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for right and left lower extremity radiculopathy.

The Veteran asserts that her right and left lower extremity radiculopathy developed as a result of her service-connected lumbar spine disorder. See December 2021 Statement in Support of Claim.

A November 2010 VA medical record documents the Veteran's report of intermittent right side sciatica. A June 2017 medical record notes back pain with bilateral lower extremity radiculopathy.

However, February 2022 and March 2022 VA examinations found that there was no objective evidence of a current bilateral lower extremity radiculopathy disorder.

The Veteran submitted a private examination in connection with her claim in July 2022. That examiner diagnosed her with a low back disorder with left and right lower extremity radiculopathy.

Based on the foregoing, the Board finds that the evidence is in approximate balance as to whether the Veteran has right and left lower extremity radiculopathy that was caused by her service-connected lumbar spine disorder. Resolving any reasonable doubt in favor of the Veteran, the Board concludes that the evidence shows that the Veteran has right and left lower extremity radiculopathy, that was caused by her service-connected low back disorder. Accordingly, entitlement to service connection is warranted on a secondary basis.

Headaches

iculopathy disorder.

The Veteran submitted a private examination in connection with her claim in July 2022. That examiner diagnosed her with a low back disorder with left and right lower extremity radiculopathy.

Headaches

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for headaches.

A review of the Veteran's service treatment records indicates that the Veteran was treated for headaches on several occasions including in September 2002, February 2003, August 2004, August 2005, and March 2007.

The Veteran was afforded a VA examination in connection with her claim in April 2022. The VA examiner opined that the Veteran's headaches were less likely than not a result of the Veteran's service. In reaching that opinion, the examiner noted that the Veteran's headaches were acute and nonspecific headaches, which resolve and were not indicative of an underlying specific headache condition.

In July 2022, the Veteran submitted a private examination regarding the headache condition. That examiner opined that the headaches were at least as likely as not incurred in or caused by service. The examiner noted that there were no records of intercurrent post-service diagnoses or conditions to explain the Veteran's current headache condition. As such, she found the current symptoms were consistent with a progression of in-service issues and noted that she had no reason to doubt the Veteran's statements regarding the onset of headaches in service.

The Board finds that the medical opinions cited above permit application of the reasonable doubt doctrine. The Board finds that the opinions of the April 2022 and July 2022 examiners place the evidence of record at least in approximate balance as to whether the Veteran's headaches were caused by or incurred in service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's headaches is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Sinusitis

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for sinusitis.

The Veteran contends that she developed sinusitis as a result of her exposure to particulate matter during service. See December 2021 VA Form 21-526EZ, Application for Disability Compensation.

August 2004 and December 2005 service treatment records show the Veteran reported sinus pressure and sinus congestion in service.

The Veteran's service records show that she served in the Southwest Asia theater of operations during the Persian Gulf War from March 2003 to April 2003. See December 2022 VA memorandum. Such service is a qualifying period of military service for purposes of presumptive exposure to fine particulate matter, and there is no affirmative evidence to establish that the Veteran did not have such exposure. 38 C.F.R. § 3.320.

The evidence also shows that the Veteran has a current diagnosis of sinusitis. See January 2022 VA Examination and July 2022 Private Examination.

The Board acknowledges that a March 2022 VA examination found that the Veteran did not have a diagnosis of sinusitis, and that in a February 2022 VA opinion, the examiner found that it was less likely than not that the Veteran's sinus condition was incurred in or caused by service. The February 2022 VA examiner asserted that the Veteran had only been treated twice since service for sinusitis which weighed against finding the Veteran had chronic sinusitis. However, the examiner did not address that the Veteran had continuously taken medication for her sinusitis, which was documented in the July 2022 private examination.

Based on the foregoing, the Board finds that service connection is warranted for sinusitis on a presumptive basis as due to exposure to fine particulate matter.

In reaching this determination, the Board has also considered the PACT Act. See 38 U.S.C. §§ 1119, 1120 (as amended by the PACT Act, Pub. L. 117-168 (Aug. 10, 2022)). However, the Board finds 38 C.F.R. § 3.320 is more favorable to the Veteran in this case, as the regulation would allow for an effective date earlier than the PACT Act.
medication for her sinusitis, which was documented in the July 2022 private examination.

Based on the foregoing, the Board finds that service connection is warranted for sinusitis on a presumptive basis as due to exposure to fine particulate matter.

In reaching this determination, the Board has also considered the PACT Act. See 38 U.S.C. §§ 1119, 1120 (as amended by the PACT Act, Pub. L. 117-168 (Aug. 10, 2022)). However, the Board finds 38 C.F.R. § 3.320 is more favorable to the Veteran in this case, as the regulation would allow for an effective date earlier than the PACT Act. Moreover, the PACT Act required that sinusitis be chronic, whereas 38 C.F.R. § 3.320 does not make such an explicit distinction between acute and chronic sinusitis.

IBS

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for IBS.

The Veteran's service personnel records show that she served on active duty in the Southwest Asia theater of operations from March 2003 to April 2003.

During a January 2022 VA examination, the examiner diagnosed the Veteran with IBS, but opined that it was less likely than not that the IBS was incurred in or caused by service. However, the examiner based his opinion on the lack of any evaluation or diagnosis in service for IBS, which the Board finds is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The Board observes that functional gastrointestinal disorders are considered a qualifying chronic disability and include irritable bowel syndrome. 38 C.F.R. § 3.317, Note to Paragraph (a)(2)(i)(B)(3).

The Board further notes that the current version of Diagnostic Code 7319 for IBS provides that a 10 percent rating is warranted when there is abdominal pain related to defecation at least once during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension. Under the prior version of that diagnostic code, a 10 percent rating was warranted when there are moderate symptoms such as frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114. In this case, the Veteran reported that she had episodes of bowel disturbance with abdominal distress and more or less constant abdominal distress. See July 2022 Private Examination.

Based on the foregoing, the Board finds that the Veteran qualifies as a Persian Gulf veteran and has a current diagnosis of IBS that manifested to a compensable degree. Therefore, service connection for IBS is warranted on a presumptive basis under 38 C.F.R. § 3.317.

Left Knee Disorder

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left knee disorder.

The Veteran's service treatment records show that she was treated in September 2006 for left knee pain after a misstep while running, which had occurred two weeks prior. The diagnosis was left knee sprain and an MRI was scheduled. The Veteran was then seen for a follow-up appointment in October 2006 wherein it was discussed that MRI results were normal.

The Veteran was afforded a VA joint examination in November 2008 in connection with other claims, including a right knee disorder. The Veteran did not report left knee pain or symptoms at that time, and no left knee disorder was diagnosed or addressed during that examination.

She was then afforded a VA examination in connection with her left knee disorder claim in January 2022. At that time, the VA examiner noted a diagnosis of left knee strain. The Veteran reported pain and restricted range of motion in the left knee, since 2005. Her range of motion was noted to be restricted to 70 degrees of flexion and 40 degrees extension, with evidence of pain. There were no joint stability or meniscal conditions found. A VA medical opinion was not requested or provided as to service connection. However; the examiner noted that the Veteran's baseline range of motion found upon evaluation was highly atypical in nature and inconsistent with the diagnosed joint pathology. He opined that, based on his training in musculoskeletal medicine, the restricted range of motion was unlikely due to the diagnosed musculoskeletal disorder.

A VA examination was then obtained in connection with the Veteran's right knee disorder claim in March 202
motion in the left knee, since 2005. Her range of motion was noted to be restricted to 70 degrees of flexion and 40 degrees extension, with evidence of pain. There were no joint stability or meniscal conditions found. A VA medical opinion was not requested or provided as to service connection. However; the examiner noted that the Veteran's baseline range of motion found upon evaluation was highly atypical in nature and inconsistent with the diagnosed joint pathology. He opined that, based on his training in musculoskeletal medicine, the restricted range of motion was unlikely due to the diagnosed musculoskeletal disorder.

A VA examination was then obtained in connection with the Veteran's right knee disorder claim in March 2022. The Veteran's left knee was not fully discussed during that examination; however, range of motion was recorded as 0 to 140 degrees.

In April 2022, a VA medical opinion was obtained for the left knee claim. The April 2022 VA examiner opined that the Veteran's current left knee strain was less likely than not incurred in or caused by the in-service left knee sprain. In support of that opinion, the VA examiner noted that Veteran's in-service left knee injury was an acute injury. An MRI was performed at that time and was negative. Additionally, the Veteran was not seen for any further or continuing left knee problems after the initial follow-up visit in October 2006. The examiner also noted that post-service medical records did not show further follow up visits or referrals for left knee problems. Therefore, the VA examiner opined that the left knee injury in service had been acute, and consistent with a left knee sprain. The examiner went on to opine that acute sprains typically resolve in 4-6 weeks. The examiner found that the in-service injury did not explain the Veteran's current symptoms and found that the clinical course of the left knee was inconsistent with the prior injury and was unlikely the result of the in-service acute left knee sprain.

The Veteran submitted a Disability Benefits Questionairre (DBQ) from a private physician, Dr. A.L., in support of her claim in July 2022. During that examination, the Veteran reported the onset of knee pain during service, which had progressively worsened. Range of motion was recorded as 0 to 140 degrees and Dr. A.L. diagnosed left knee strain. He then opined that the left knee condition was at least as likely as not incurred in service. In support of that opinion, he stated that the Veteran reported on-going symptoms since the in-service event and found that in the absence of intercurrent post-service injury to explain the current left knee issues, the current knee disorder was at least as likely as not related to service.

After reviewing the evidence of record, the Board finds that service connection is not warranted for a left knee disorder.

In this case, the Board finds that, after weighing the evidence, the April 2022 VA examiner's opinion was more probative. The April 2022 VA examiner provided a medical opinion supported by rationale and a discussion of the Veteran's medical history. In addition, the examiner offered an opinion based upon the specific type of injury of the Veteran.

In contrast, the opinion provided by Dr. A.L. found that because the medical records were silent as to another left knee injury or disorder, the in-service injury had to be the cause of the current injury. The Board finds this opinion has limited probative value, as the examiner provided no further rationale and did not address the normal in-service MRI, the November 2008 VA joint examination wherein no left knee disorders were reported or found, or the decades long gap of any treatment for or diagnosis of a left knee disorder.

The Board notes that the Veteran has stated that she had pain and difficulties with her left knee since service. The Veteran is competent in this case to provide testimony regarding her symptoms. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of her current disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

Moreover, even assuming the Veteran's lay assertions regarding etiology are competent, the Board finds that the contemporaneous evidence of record contradicts her statements in that regard. Specifically, the Board notes that she was afforded a November 2008 VA joint examination wherein the right knee was discussed, but no left knee issues, pain, or disorders were reported.

For these reasons, the Board finds
435 (2011), as to the specific issue in this case, the diagnosis and etiology of her current disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

For these reasons, the Board finds that the April 2022 VA examiner's opinion is more probative, as it is based on a review of the record, including lay statements, as well as the examiner's own medical knowledge, training, and expertise. The examiner also provided a detailed rationale in support of the opinion.

Based on the foregoing, the Board finds that as the weight of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left knee disorder is not warranted.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S
incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other).

Cervical Spine

The Veteran has been assigned a 10 percent evaluation for her service-connected cervical spine strain with degenerative arthritis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Those diagnostic codes indicate that degenerative arthritis and intervertebral disc syndrome should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) in 38 C.F.R. § 4.71a (Diagnostic Codes 5235 through 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a was amended effective February 7, 2021. 85 Fed. Reg. 76453 (November 30, 2020).

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from February 7, 2021, when the regulations became effective.

Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire
loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243.

For VA compensation purposes, normal range of motion for the cervical spine is 45 degrees of forward flexion, 45 degrees of extension, 45 degrees of left and right lateral flexion, and 80 degrees of left and right lateral rotation. The normal combined range of motion of the cervical spine is 340 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V.

Moreover, for VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2).

Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5243 for IVDS is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than IVDS.

Effective February 7, 2021, Diagnostic Code 5242 provides that Diagnostic Codes 5003 and 5010 should also be considered for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS). Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71
compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than IVDS.

Effective February 7, 2021, Diagnostic Code 5242 provides that Diagnostic Codes 5003 and 5010 should also be considered for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS). Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). The rating criteria under the general rating formula remained unchanged. The revised criteria also state that Diagnostic Code 5243 should only be applied when there is disc herniation with compression and/or irritation of the adjacent nerve root and that Diagnostic Code 5242 should be considered for all other disc diagnoses.

Under the old and revised rating criteria, a compensable rating is assigned under Diagnostic Code 5003 where one is not available under the General Formula. As the Veteran has already been granted a compensable evaluation, Diagnostic Code 5003 is not applicable in this case. Similarly, as the Veteran's cervical spine disability is already rated based on compensable limitation of motion throughout the period on appeal, further discussion of Diagnostic Code 5010 under the prior and amended criteria is also not warranted. Moreover, a 20 percent evaluation is the maximum schedular evaluation available under Diagnostic Codes 5003 and 5010. The Board has granted an increased evaluation to be discussed in further detail below, thus, an increased evaluation cannot be granted under Diagnostic Code 5003 or 5010.

In this case, the Veteran was afforded a VA examination in January 2022 at which time the examiner diagnosed her with cervical spine strain. The Veteran stated that her current symptoms were grinding, poor range of motion, and pain. She reported taking pain medication and resting. The Veteran reported flare-ups occurring weekly and biweekly which she described as severe, lasting hours to days, alleviated by medication and rest. A physical examination revealed forward flexion to 5 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. There was pain on motion and evidence of localized tenderness on palpitation. There was no additional loss of motion with repetition. The examiner noted that functional ability would be limited during repetitive use over time and during a flare-up. However; the examiner also noted that the Veteran's baseline range of motion was highly atypical in nature and inconsistent with the diagnosed pathology. Therefore, the examiner noted that determining an estimated loss of motion upon flare-ups and with repeated use over time was not possible without speculation. Additionally, he found that based on the examiner's training in musculoskeletal medicine, the atypical baseline range of motion was unlikely due to the diagnosed musculoskeletal disorder. The examiner also noted that there was no guarding, tenderness, or muscle spasm of the cervical spine. There was no muscle atrophy and strength testing was normal. Radiculopathy and ankylosis were not present and there were no other neurological abnormalities. The examiner also found no IVDS of the cervical spine.

X-rays performed in March 2022 found straightening of the normal curvature in the cervical spine, likely due to muscle spasm and mild narrowing of C4-5 and C5-6 disc spaces.

The Board notes that the Veteran was provided another VA examination in March 2022. During the March 2022 VA examination, the Veteran reported having flare ups occurring multiple times per week which were alleviated by immobility, rest, and hot compress, but that there was always constant pain. The Veteran reported functional loss including her body shaking in bed and difficulty driving. Range of motion testing was found to be normal. The Veteran exhibited forward flexion, extension, right lateral flexion, and left lateral flexion to 45 degrees. She exhibited right and left lateral rotation to 80 degrees. Passive range of motion was the same as active range of motion. With regard to flare-ups, the examiner indicated that procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare-ups. This is inconsistent with the Veteran's reports of functional loss during flare-ups. Thus, the Board find that the March 2022 VA examination was inadequate to assess the severity of the Veteran's disability.

The Veteran then submitted a private examination in July
was found to be normal. The Veteran exhibited forward flexion, extension, right lateral flexion, and left lateral flexion to 45 degrees. She exhibited right and left lateral rotation to 80 degrees. Passive range of motion was the same as active range of motion. With regard to flare-ups, the examiner indicated that procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare-ups. This is inconsistent with the Veteran's reports of functional loss during flare-ups. Thus, the Board find that the March 2022 VA examination was inadequate to assess the severity of the Veteran's disability.

The Veteran then submitted a private examination in July 2022, which diagnosed her with cervical strain and degenerative disc disease. The Veteran reported that during flare-ups she could barely bend her neck and found it difficult to do simple things like drive or read because she was unable to turn her head without pain. At that examination, the Veteran's cervical spine range of motion was normal and there was no change on repetitive testing. There was no muscle spasm or guarding of the cervical spine and spine contour was normal. The examiner then opined that with repetitive use over time or during a flare-up, the Veteran's range of motion would decrease and estimated that loss as forward flexion to 10 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees. Strength testing was normal and there was no muscle atrophy or ankylosis. There was no radiculopathy or neurological abnormalities found. IVDS was also not diagnosed or found.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an evaluation of 30 percent, but not higher, for her service-connected cervical spine disability throughout the relevant appeal period. In that regard, the Board notes that the Veteran's forward flexion of the cervical spine has been limited to 15 degrees or less.

However, the evidence does not show that the Veteran has unfavorable ankylosis of the entire cervical spine or the functional equivalent thereof. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In fact, the range of motion findings during the January 2022 and July 2022 examinations do not show that the Veteran's cervical spine was fixed or immobile or that she has functional impairment more closely approximating ankylosis. See Chavis v. McDonough, 1 Vet. App. 1 (2021). The January 2022 and July 2022 examiners specifically noted that there was no ankylosis. Therefore, the Veteran has not met the criteria for an evaluation in excess of 30 percent under the General Rating Formula for Diseases and Injuries of the Spine.

In addition, the evidence does not show that the Veteran has incapacitating episodes meeting the durational requirement for a rating under the intervertebral disc syndrome rating criteria noted above. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. There are no treatment records documenting a prescription of bed rest for the Veteran's cervical spine disorder. Moreover, the January 2022 and July 2022 examiners stated that the Veteran did not have intervertebral disc syndrome. Therefore, the Board finds that the Veteran is not entitled to an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

The Board further finds that a separate disability rating is not warranted for a separate neurological disability distinct from the Veteran's cervical spine disability. The Veteran has not been diagnosed with radiculopathy of the right and left upper extremities, and the evidence of record does not identify any separate neurological findings or disability not already contemplated under the rating criteria.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 30 percent for the Veteran's service-connected cervical spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the currently assigned 30 percent evaluation, and no higher. In this regard, the Board observes that the Veteran has complained of pain and limitation of motion.
the right and left upper extremities, and the evidence of record does not identify any separate neurological findings or disability not already contemplated under the rating criteria.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 30 percent for the Veteran's service-connected cervical spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the currently assigned 30 percent evaluation, and no higher. In this regard, the Board observes that the Veteran has complained of pain and limitation of motion. However, the effect of such symptoms and the functional impairment are contemplated in the assigned evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an evaluation in excess of the 30 percent evaluation currently assigned.

As previously noted, the range of motions findings, including the estimates during flare-up and repetitive use, do not show or suggest that the Veteran has ankylosis or that she has functional impairment more closely approximating ankylosis. See Chavis v. McDonough, 1 Vet. App. 1 (2021). Thus, even taking into account the Veteran's symptoms, including pain, as well as flare-ups and repetitive use, the evidence does not show that she more nearly approximates the criteria for a higher evaluation. Pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011).

Based on the foregoing, the Board finds that the Veteran is entitled to an evaluation of 30 percent, but no higher for her service-connected cervical spine disability. However, the evidence persuasively weighs against an evaluation in excess of 30 percent.

Right Knee Disorder

The Veteran's service-connected right knee disorder is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260.

During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating knee disabilities under 38 C.F.R. § 4.71a, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule.

Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

Under Diagnostic Code 5260, a 10 percent evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent evaluation is assigned when flexion is limited to 15 degrees, which is the maximum rating available under Diagnostic Code 5260.

Under Diagnostic Code 5261, a 10 percent evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent evaluation is warranted. A 30 percent evaluation will be assigned for extension limited to 20 degrees, and a 40 percent evaluation is contemplated for limitation of extension to 30 degrees. A 50 percent evaluation is warranted for extension limited to 45 degrees.

The regulations provide that the
45 degrees, and a 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent evaluation is assigned when flexion is limited to 15 degrees, which is the maximum rating available under Diagnostic Code 5260.

The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II.

Under the regulations in effect from February 7, 2021, under the section of Diagnostic Code 5257 pertaining to recurrent subluxation or instability, a 10 percent evaluation is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent evaluation is warranted for one of the following: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

Under the regulations in effect from February 7, 2021, Diagnostic Code 5257 now provides rating criteria for patellar instability. Under the criteria for patellar instability, a 10 percent rating is warranted where there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned where there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted where there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) indicates that for patellar instability, the patellofemoral complex consists of the quadriceps tendon the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). A 20 percent rating is the maximum schedular evaluation available under Diagnostic Code 5258.

Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage.

Under the regulations in effect from February 7, 2021, under the section of Diagnostic Code 5262 pertaining to medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is warranted for MTSS or shin splints requiring treatment less than 12 consecutive months of one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment of one or both lower extremities. A 20 percent evaluation is warranted for MTSS or shin splints requiring no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of one or both lower extremities. A 30 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities.

Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263.

Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same under the revised regulations. Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.

VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997).

VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also held that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy,
.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.

In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004).

The Veteran was afforded a VA examination in January 2022 during which she reported having pain in her knee, but no treatments. She reported flare-ups occurring weekly, which she characterized as severe and lasting days. Her range of motion was recorded as flexion to 65 degrees and extension to 50 degrees with no objective evidence of painful motion, and there was no change upon repetition. The examiner did note the presence of crepitus, but found that there was no tenderness, instability, or subluxation. Strength testing was normal, and there were no meniscal problems. The examiner noted that functional ability would be limited during repetitive use over time and during a flare-up. However; the examiner also noted that the Veteran's baseline range of motion found upon evaluation was highly atypical in nature and inconsistent with the diagnosed joint pathology. He noted the examination was not performed during a flare-up of the knee or after repetitive use over time. Therefore, the examiner noted that it was simply not reasonable to assert an even greater loss of range of motion during repetitive use or flare-ups due to the already atypical findings. He then opined that, based on the examiner's training in musculoskeletal medicine, the atypical range of motion was unlikely due to the diagnosed musculoskeletal disorder.

The Veteran was then afforded a VA knee examination in March 2022. The Veteran reported knee stiffness and pain, which she was treating with over-the-counter medications and intermittent use of a knee brace. She reported flare-ups occurring weekly, which she characterized as moderate in nature. Her range of motion was recorded as 0 to 140 degrees flexion. There was no change upon repetition. The VA examiner then opined that there would be no additional loss of motion with flare-ups or repeated use over time. The examiner found no muscle atrophy and instability testing was performed but instability and subluxation were not found. There were no meniscal problems, no ankylosis, and no tibial or fibular impairment.

The Veteran also submitted a private examination in July 2022. The Veteran reported progressive symptoms in the right knee with pain, stiffness, and periodic range of motion restrictions. The Veteran also reported flare-ups with extreme pain and severe limitations of motion. Her range of motion was normal during the evaluation. There was no additional loss upon repetition. The medical provider then estimated additional loss upon flare-ups or upon repeated use over time would be flexion to 10 degrees and extension to 0 degrees. There was no muscle atrophy and strength testing was normal. The provider noted there was no history of recurrent subluxation, instability or recurrent effusion, and there were no meniscal conditions, or tibial or fibular impairments.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an evaluation of 30 percent, but no higher, for her service-connected right knee disorder.

In giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a 30 percent evaluation under Diagnostic Code 5260 for limitation of flexion of the right knee. In this regard, the July 2022 medical provider found that the Veteran's right knee flexion would be limited to 10 degrees during flare-ups. As such, an increased evaluation is warranted under Diagnostic Code 5260 for the right knee.

However, the Board finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5261 for limitation of extension for her right knee. The record does not show that left knee extension was limited to 10 degrees or more to warrant separate 10 percent evaluation or higher. As noted above, range of motion was normal for the right knee during a March 2022 VA examination as well as during a July 2022 private examination. Additionally, while the January 2022 VA examiner noted that right knee extension was limited to 50 degrees, the VA examiner also opined that the Veteran's baseline range of motion was highly atypical in nature and inconsistent with the diagnosed pathology. Therefore, the examiner found that such limitation was unlikely due to the diagnosed musculoskeletal disorder. The relevant evidence supports this opinion, as just two months later, in March 2022, the Veteran had normal range of motion in her right knee; with normal range of motion again recorded in July 2022. As such, a separate or increased evaluation under Diagnostic Code 5261 is not warranted for the right knee.

In addition, the Board notes that the Veteran has been assigned an evaluation for her service-connected right knee disability that contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In addition, the evaluations for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010.

In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning higher, or separate, ratings under other diagnostic codes. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Nevertheless, the Board finds that the Veteran is not entitled to a separate or higher evaluation for recurrent subluxation, lateral instability, or patellar instability under the revised Diagnostic Code 5257. The January 2022 and March 2022 VA examiners indicated that the Veteran did not have a history of recurrent subluxation or instability, and there was no evidence of recurrent subluxation or persistent instability upon examination in March 2022. It was further noted that the Veteran only used a brace intermittently for the right knee during the March 2022 examination. The Veteran denied use of assistive devices during the January 2022 and July 2022 examinations. Additionally, while the July 2022 provider made a note that instability of station contributed to the functional loss, that same provider also found no history of instability, or subluxation later in the evaluation. There are also no treatment records documenting any reports of subluxation or instability. Thus, a separate or higher evaluation under Diagnostic Code 5257 is not warranted for the right knee.

The Board has also considered whether a separate or higher evaluation is warranted under any other diagnostic code. However, based on the aforementioned range of motion findings, the record shows that the Veteran's right knee is not fixed or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the January 2022 and March 2022 VA examiners and the July 2022 private examiner specifically reported that there was no ankylosis of the right knee. Similarly, none of the examiners found a meniscus (semilunar cartilage) condition in the right knee, recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial and/or fibular impairments. Therefore, a separate or higher evaluation is not warranted under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected right knee disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluation, and no higher. In this regard, the Board observes that the Veteran complained of pain and stiffness. However, the effect of the pain in the Veteran's right knee is already contemplated in the assigned evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond that already assigned. The Board has already taken the Veteran's flare-ups and restricted motion upon repetitive use over time into consideration in assigning the 30 percent evaluation, which is the maximum evaluation available for limitation of flexion. The January 2022, March 2022, and July 2022 VA examiners also found that the Veteran had normal muscle strength without muscle atrophy of the right leg. In addition, as noted above, even taking into consideration the Veteran's reports, repetitive use, and flare-ups, the evidence does not show that she would more nearly approximate the criteria for higher evaluations for her right knee disability. Pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Accordingly, the Board concludes that separate or higher evaluations are not warranted for the Veteran's service-connected right knee disability under DeLuca.

Based on the foregoing, the Board finds that the Veteran is entitled to an evaluation of 30 percent, but no higher for her service-connected right knee disability. However, the evidence persuasively weighs against an evaluation in excess of 30 percent.

Lumbar Spine Disorder

The Veteran has been assigned a 10 percent evaluation for her service-connected lumbar spine disorder throughout the relevant appeal period, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 indicates that this disorder should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula).

Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar
the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243.

For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2).

During the relevant time period, the Veteran was afforded a VA examination in January 2022. At that time, she was experiencing pain and tingling, with flare-ups reportedly one to three times per week, which she characterized as severe lasting hours to days. She also stated she was not able to walk until flare-up symptoms resided. Upon evaluation, there was no muscle spasm found, and strength testing was normal. Ankylosis and other neurological abnormalities were also not found. There was no IVDS. Range of motion was recorded as 10 degrees flexion, 10 degrees extension, rotation was 15 degrees on the right and left side and lateral bending was at 5 degrees on the right and left sides. The examiner noted discomfort throughout range of motion testing, but upon repetition, no additional loss of motion was seen. The VA examiner then opined that he could not estimate any additional loss of motion due to repeated use over time or flare-ups. Specifically, he opined that the baseline range of motion measured upon evaluation was highly atypical in nature and inconsistent with the diagnosed joint pathology. He noted that
normal. Ankylosis and other neurological abnormalities were also not found. There was no IVDS. Range of motion was recorded as 10 degrees flexion, 10 degrees extension, rotation was 15 degrees on the right and left side and lateral bending was at 5 degrees on the right and left sides. The examiner noted discomfort throughout range of motion testing, but upon repetition, no additional loss of motion was seen. The VA examiner then opined that he could not estimate any additional loss of motion due to repeated use over time or flare-ups. Specifically, he opined that the baseline range of motion measured upon evaluation was highly atypical in nature and inconsistent with the diagnosed joint pathology. He noted that the range of motion measurements recorded were not taken during a flare up or after repetitive use. He went on to opine that determining the etiology of this range of motion loss was not possible without speculation but based on his training in musculoskeletal medicine, the limited range of motion found on examination was unlikely due to the diagnosed musculoskeletal condition.

The Veteran was next afforded a VA examination in March 2022. At that time, she was experiencing pain, with flare-ups occurring constantly, which she characterized as moderate to severe. Upon evaluation, there was no muscle spasm found and strength testing was normal. Ankylosis and other neurological abnormalities were also not found. IVDS was not diagnosed. Range of motion was recorded as normal or 90 degrees flexion, 30 degrees extension, rotation was 30 degrees on each side and lateral bending was 30 degrees on each side. There was no additional loss on repetition. The examiner found no pain throughout range of motion testing or on palpitation. The VA examiner then opined that there would be no additional loss of motion due to repeated use over time or flare-ups.

The Veteran submitted a private examination in July 2022. The Veteran reported pain, with restricted motion. There were no bowel or bladder difficulties and no muscle spasm or guarding. Range of motion was again normal and there was no additional loss upon repetitive testing. The medical provider indicated pain on movement but not upon palpitation. The provider then opined that during a flare-up or upon repeated use over time, the estimated range of motion would be forward flexion to 25 degrees, extension to 20 degrees, rotation at 20 degrees on the right and left side, and right and left lateral flexion to 20 degrees. Strength testing was normal and there was no muscle atrophy. Ankylosis and other neurological abnormalities were also not found. IVDS was not diagnosed.

In affording the Veteran the benefit of the doubt, the Board finds that a 40 percent evaluation is warranted due to forward flexion of the thoracolumbar spine limited to 30 degrees or less during frequent flare-ups.

However, the evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In fact, the range of motion findings during the January 2022 and March 2022 VA examinations and the July 2022 private examination does not show that the Veteran's lumbar spine was fixed or immobile or that she has functional impairment more closely approximating ankylosis. See Chavis v. McDonough, 1 Vet. App. 1 (2021). The January 2022, March 2022, and July 2022 examiners specifically noted that there was no ankylosis. Therefore, the Veteran has not met the criteria for an evaluation in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine.

In addition, the Veteran does not have a diagnosis of IVDS. As such, an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted.

The Board further finds that a separate disability rating is not warranted at any time during the appeal period due to a separate neurological disability distinct from her already service-connected lumbar spine disability, and radiculopathy of the lower extremities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). In that regard, none of the VA examiners or July 2022 provider diagnosed any other neurologic abnormalities or findings related to her thoracolumbar spine disorder, such as bowel or bladder problems/pathologic reflexes, aside from the lower extremity radicul
the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of the assigned 40 percent evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 40 percent rating, and no higher. The Veteran has complained of pain and limited motion throughout the appeal period. However, the effect of the pain in the Veteran's back is contemplated in the assigned 40 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Veteran's reported additional limitations during flare-ups and repeated use over time have already been contemplated in the 40 percent evaluation assigned. These limitations did not show or more nearly approximate unfavorable ankylosis. Indeed, she maintained a range of motion even upon consideration of her flare-ups and with repeated use over time, as documented in her private examination submitted in July 2022. Thus, even taking into account the Veteran's reports, repetitive use, and flare-ups, the evidence does not show that she more nearly approximates the criteria for a higher evaluation for her service-connected lumbar spine disorder.

For these reasons, the Board finds that the Veteran's lumbar spine disorder warrants an increase to a 40 percent evaluation, but no higher, during the period on appeal.

Conclusion

The Veteran and her representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record.

J. SAIKH

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rideout-Davidson, B.

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.

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