Citation Nr: 1800039 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 10-03 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased disability rating for the service-connected right knee patellar tendonitis rated as 10 percent disabling from May 14, 2014 and zero percent prior to that date. 2. Entitlement to an increased disability rating for the service-connected left knee patellar tendonitis rated as 10 percent disabling from May 14, 2014 and as zero percent prior to that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty October 1989 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to higher disability ratings for the service connected left and right knee disabilities. An August 2014 rating decision assigned 10 percent ratings to each knee from May 14, 2014. This award does not constitute a full grant of the benefits sought. Therefore, these increased rating issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). A March 2016 rating decision granted entitlement to a total rating based on individual unemployability by reason of service-connected disabilities (TDIU) from August 1, 2015. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. However, due to technical difficulties, a complete transcript cannot be created. In January 2017, the Board informed the Veteran of this and gave the Veteran the opportunity to have another hearing before the Board. In February 2017, the Veteran informed the Board that he did not wish to have another hearing before the Board. In March 2017, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. As the AOJ scheduled the Veteran for the appropriate VA examination, obtained the requisite medical opinions, and conducted the additional development, the Board finds that there has been substantial compliance with the Board's Remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). In August 2017, the Veteran submitted a waiver of AOJ consideration of new evidence pursuant to 38 C.F.R. § 20.1304 (2017). FINDINGS OF FACT 1. For the entire period of the appeal, the service-connected right knee patellar tendonitis is manifested by pain, painful motion, and flexion from 115 degrees to full flexion, without objective evidence of arthritis, instability or subluxation, deformity, lack of endurance, dislocation, heat, redness, or effusion; dislocated semilunar cartilage or an absence of the semilunar cartilage in the knee joint; or evidence of additional limitation of motion or loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. 2. For the entire period of the appeal, the service-connected left knee patellar tendonitis is principally manifested by pain, painful motion, and flexion from 120 degrees to full flexion, without objective evidence of arthritis, instability or subluxation, deformity, lack of endurance, dislocation, heat, redness, or effusion; dislocated semilunar cartilage or an absence of the semilunar cartilage in the knee joint; or evidence of additional limitation of motion or loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. CONCLUSIONS OF LAW 1. Prior to May 14, 2014, the criteria for the assignment of a 10 percent disability rating for the service-connected right knee pain with patellar tendonitis have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (2017). 2. For the entire appeal period, the criteria for the assignment of a disability rating in excess of 10 percent the service-connected right knee pain with patellar tendonitis have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (2017). 3. Prior to May 14, 2014, the criteria for the assignment of a 10 percent disability rating for the service-connected left knee pain with patellar tendonitis have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (2017). 4. For the entire appeal period, the criteria for the assignment of a disability rating in excess of 10 percent the service-connected left knee pain with patellar tendonitis have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2008, April 2008, November 2008, and July 2009. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also 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 duty to assist argument). 2. Increased Ratings for the Left and Right Knee Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). The United States Court of Appeals for Veterans Claims (Court) clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under Diagnostic Code 5256, ankylosis of the knee, a 30 percent rating is warranted for knee ankylosis in a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. A 40 percent rating requires knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5257, other impairment of the knee, a 10 percent evaluation requires slight recurrent subluxation or lateral instability. A 20 percent evaluation requires moderate recurrent subluxation or lateral instability. A 30 percent evaluation requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 are utilized to rate limitation of flexion and extension of the knee joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation; limitation of flexion to 45 degrees warrants a 10 percent rating; limitation of flexion to 30 degrees warrants a 20 percent evaluation; and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation; limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation; limitation of extension to 15 degrees warrants a 20 percent evaluation; and limitation of extension to 20 degrees warrants a 30 percent evaluation. Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. VA's General Counsel has interpreted that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97. In VAOPGCPREC 9-98, the VA General Counsel (GC) explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In VAOPGCPREC 9-2004, the VA GC held that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). The Veteran asserts that higher disability ratings are warranted for his right and left knee disabilities. With regard to the history of the disabilities at issue, service connection for right and left knee pain was granted in a December 1998 rating decision. A zero percent rating was assigned from March 14, 1998 under Diagnostic Code 5257. The Veteran filed a claim for increased ratings for the service-connected knee disabilities in November 2008. In the April 2009 rating decision, the RO recharacterized the knee disabilities as right and left knee pain with mild patellar tendonitis and the RO denied entitlement to compensable disability ratings. In an August 2014 rating decision, the RO assigned 10 percent ratings to each knee disability from May 14, 2014. The 10 percent rating were assigned under Diagnostic Code 5257 but the RO, in the rating decision, stated that the 10 percent ratings were based upon the May 2014 VA examination findings which show decreased range of motion with flexion to 130 degrees and full extension with painful movement and pain on palpation in each knee. The RO noted that there was no additional function loss with repetitive motion. Looking at the evidence of record in the light most favorable to the Veteran, the Board finds that a 10 percent rating is warranted for the service-connected left knee pain with patellar tendonitis and a 10 percent rating is warranted for the service-connected right knee pain with patellar tendonitis prior to May 14, 2014 based upon findings of painful motion including during flare-ups in each knee joint. When determining the severity of musculoskeletal disabilities, such as those at issue, VA must also consider the extent of any additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when the symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran may receive a compensable disability rating based on pain, pursuant to 38 C.F.R. § 4.59. This regulation notes: "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. 38 C.F.R. § 4.59 applies when evaluating joint pain, even if such pain is not arthritis-related. Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). The medical evidence shows that prior to May 14, 2014, the service-connected left and right knee disabilities (characterized as knee pain with patellar tendonitis) are manifested by pain in each knee joints. The March 2009 VA examination report indicates that the Veteran reported having intermittent symmetrical symptoms of bilateral knee pain and stiffness. He denied any knee swelling, weakness, or giving way of the knees. The Veteran reported having constant bilateral knee pain and discomfort. He reported difficulty with walking and kneeling and difficulty driving for long periods. The Veteran stated that he had bilateral knee stiffness after prolonged sitting or driving as well as in the morning when he gets up. The Veteran stated that he could not participate in sports or take long walks. He stated that he was unable to squat or duck waddle. He did not feel any weakness in the knees and he denied any instability. He stated that he could not walk long distances without pain or climb stairs without pain. He could not carry groceries without pain. The Veteran denied locking or edema of the knees. The VA examiner noted that the knee pain apparently caused some decreased quality of life and the pain apparently does not bother him at night and apparently he has no difficulty finding a good position to alleviate his pain. The Veteran stated that the pain severity mostly and at present was 3-4/10 and the worst pain was 7-8/10. The Veteran indicated that the knee pain is worse with any increased activity and is especially stiff and sore in the mornings and with weather changes. The knee pain is worse with standing, walking, ambulating up and down stairs, running, and playing with his children. He stated that flare-ups never incapacitate him totally. He stated that flare-ups happen every day after any excessive ambulation/walk, any repeated joint movement as needed for activities of daily living, and in everyday life and the severe pain lasted for 24 hours. The Veteran stated that the flare-ups include worsening pain of the involved joint, but does not include greater limitation of motion and function due to worsening pain. The Veteran denied any worsening of fatigue, lack of endurance, or strength and it was never to a great extent that would be incapacitating, limit all his activities of daily living, or force the Veteran to be absent from his fulltime job. The Veteran reported no additional limits on functional ability on repeated use or during flare ups or additional degrees of limitation of motion on repeated use or during flare-ups. Physical examination revealed normal gait and the Veteran was observed walking normally, getting up from a chair, and sitting on the exam table without any difficulty. There was no evidence of abnormal weight bearing, inflammatory arthritis, or joint ankylosis. Examination revealed no bony joint enlargement, deformity, or painful motion. There was no guarding of movement or weakness. There were no clicks or snaps, or grinding or instability. There was no patellar or meniscus abnormality or other knee abnormality. Examination of the right and left knees revealed that function and range of motion were within normal limits without any limitations. The VA examiner stated that repetitive (x 3) testing in accordance with DeLuca was carried out and the test was negative for any additional degrees of limitation of motion on repeated use or during flare ups. The VA examiner stated that the Deluca criteria was completely negative and there was no additional loss of motion of with repetitive use secondary to fatigue, pain, or lack of endurance. Tests of joint motion against varying resistance was performed and there was no evidence for any incoordination, weakened movement, or excess fatigability on use. Ligamentous examination was stable in terms of anterior cruciate ligament, posterior cruciate ligament, medial collateral ligament, and lateral collateral ligament. Range of motion of both knees was zero to 140 degrees on flexion and zero to 90 degrees on extension with no pain on active or passive motion and no pain after repetitive use or additional loss of motion on repetitive use. Gait was within normal limits. The Veteran was able to sit with the knee flexed at 90 degrees during entire encounter without obvious discomfort, and he could squat very well and duck waddle, toe walk and heel walk, and cross legs. There was no palpable tenderness in either knee in the joint lines and no effusion bilaterally. There was no evidence of joint laxity in the knees bilaterally or tenderness or mass in popliteal fossa bilaterally. There was mild crepitus with maximum flexion of the right and left knees. There was no painful movement with active or passive range of motion testing and no palpable tenderness in both knees bilaterally in the joint lines. There was no evidence of any subluxation or instability, crepitance, or locking on thorough examination of the knees. There was a negative Apley grind test, McMurray sign, anterior drawer, Lachman, and posterior drawer test. There was no varus or valgus instability or patellar apprehension or subluxation. Examination of the knee ligaments was negative and was within normal limits. The knees were stable to all tests throughout the range of motion. No ellicitable retropatellar pain or crepitation (i.e grinding or clicking) could be reproduced by patellar compression. There was no patellar subluxation or uneven tracking of the patella in the femoral groove bilaterally. The patellas bilaterally appeared to track well. There was no sign of effusion, instability, or focal joint line tenderness bilaterally. There was no sign of wasting or atrophy of the lower extremity muscles. Neurologic exam was completely unremarkable. Deep tendon reflexes were 2+ in the knees. Motor strength was 5/5 in all lower extremity muscles. X-ray examination of the left and right knees was normal. The diagnosis was bilateral knee mild patellar tendonitis. The VA examiner stated that overall, the service-connected bilateral knee disability has been stable over the last many years. Range of motion and function of the left and right knees were full without any limitations and the Deluca criteria was completely negative. There were no additional loss of motion of with repetitive use secondary to fatigue, pain, or lack of endurance. Tests of joint motion against varying resistance was performed. There was no evidence for any incoordination, weakened movement, or excess fatigability on use. There was no objective evidence of pain or functional loss due to pain-or objective evidence of specific functional impairment due to the claimed bilateral knee disabilities or evidence for of any additional degrees of limitation of motion on single or repetitive use. The VA examiner indicated that the Veteran did not have time lost from work during last 12 months and the bilateral knee disability did not affect occupational activities or usual daily activities. VA treatment records dated in 2010 and 2011 show that the Veteran reported having knee pain. See the VA treatment records dated in February 2010, April 2010, October 2010 and November 2010. An October 2010 VA primary care note indicates that the Veteran reported that his right knee pain was a 5/10. VA treatment records dated in May 2011 and November 2011 indicate that the Veteran continued to have arthralgia in the knees. At a February 2011 VA examination, the Veteran reported having a gradual onset of knee pain in the 1990's and it has gotten progressively worse. His current treatment was medication (Motrin) and the response was fair. He reported having pain, stiffness, limited motion, instability and giving way in the knees. He stated that he did not have flare-ups. Examination revealed that gait was normal. Neurologic examination was negative. Muscle strength was normal. There was no muscle atrophy. The diagnosis in pertinent part was bilateral knee strain. Considering the pertinent evidence in light of the applicable criteria, the Board finds that the current symptomatology associated with the service-connected right and left knee disabilities does not warrant compensable rating per Diagnostic Code 5257. The weight of the competent and credible evidence does not demonstrate that the service-connected right and left knee disabilities are manifested by or more closely approximate slight recurrent subluxation or lateral instability. The weight of the medical evidence establishes that there is no objective findings of instability, subluxation, or dislocation of the right and left knees prior to May 14, 2014. See the March 2009 and February 2011 VA examination reports and the VA treatment records dated prior to May 2014. However, the Board has considered whether a compensable rating is warranted under 38 C.F.R. § 4.59. Looking at the evidence of record in the light most favorable to the Veteran, the Board finds that an evaluation of 10 percent is warranted for each knee. The competent and credible evidence shows that for the time period prior to May 14, 2014, the service-connected right and left knee disabilities are manifested by pain with activity. The March 2009 VA examination report indicates that the Veteran reported having constant bilateral knee pain and discomfort. He reported difficulty with walking and kneeling and difficulty driving for long periods. The Veteran stated that he had bilateral knee stiffness after prolonged sitting or driving as well as in the morning when he gets up. The Veteran stated that he could not participate in sports or take long walks. He stated that he could not walk long distances without pain or climb stairs without pain. He could not carry groceries without pain. The Veteran stated that the pain severity mostly and at present was 3-4/10 and the worst pain was 7-8/10. The Veteran stated that flare-ups never totally incapacitate him but do occur daily after any excessive ambulation/walk, any repeated joint movement as needed for activities of daily living, and in everyday life with severe pain lasting for 24 hours. He stated that the flare-ups include worsening pain of the involved joint, but does not include greater limitation of motion and function due to worsening pain. The VA treatment records document that the Veteran consistently reported knee pain or arthralgia and knee arthralgia was an active problem listed in the VA healthcare system. The Board further noted that retropatellar pain syndrome bilateral was diagnosed in active service and service connection was initially granted for left and right knee pain in December 1998. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to at least the minimum compensable rating of 10 percent for the service-connected right knee disability and a 10 percent rating is warranted for the left knee disability for the time period prior to May 14, 2014 based on the application of 38 C.F.R. § 4.59 as interpreted in Burton, supra, and the claims for a higher initial ratings are granted to that extent. Based upon a review of the evidence, the Board concludes that a rating in excess of 10 percent for the service-connected right and left knee disabilities is not warranted at any time during the appeal. In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260. The weight of the evidence shows that the Veteran has demonstrated flexion of the right and left knees well beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal. VA examination in March 2009 shows full range of motion of the right and left knees. VA examination in May 2014 shows flexion of the right and left knees to 130 degrees with pain beginning at that point. The VA examination in April 2017 shows range of motion of the right knee from zero degrees to 115 degrees and the range of motion of the left knee from zero degrees to 120 degrees. Thus, on this record, a higher disability evaluation (in excess of 10 percent) under Diagnostic Code 5260 is not warranted. See 38 C.F.R. § 4.71a , Diagnostic Code 5260. In consideration of Diagnostic Code 5261, the Board acknowledges that the VA examination reports show full extension of the left and right knees. Thus, on this record, a separate compensable disability evaluation under Diagnostic Code 5261 is not warranted. See 38 C.F.R. § 4.71a , Diagnostic Code 5261. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. The weight of the evidence shows no additional limitation of flexion or extension of the right or left knees due to pain or other symptoms. The March 2009 VA examination report documents full range of motion of the right and left knees. The VA examiner stated that motion was not additionally limited following repetitive use on this examination. A minimal degree of crepitus was noted bilaterally. The May 2014 VA examination report notes that range of motion of the left and right knees was from zero to 130 degrees with objective evidence of pain in the right knee at 130 degrees and no objective evidence of pain in the left knee. The VA examiner stated that the Veteran did not have additional limitation of motion of the knees following repetitive-use testing. The functional loss and impairment in the knees was manifested by pain on movement. There was tenderness and pain to palpation of the joint line or soft tissues of the knees. The April 2017 VA examination report notes that the Veteran reported having flares with increased pain and limited weight-bearing activities. The VA examination report indicates that the Veteran's description of functional loss or functional impairment in his own words was that he was limited with walking, kneeling, and squatting, and walking on hills. The VA examiner stated that pain was noted on exam and caused functional loss, and the Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The VA examiner indicated that pain significantly limited functional ability with repeated use over a period of time. Muscle strength in each knee was 5/5. The VA examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The Board finds that the Veteran's current 10 percent disability ratings for the right and left knee disabilities take into consideration and incorporate the functional loss and impairment due to pain to include during flare-ups. The right and left knee disabilities have not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. As noted, the weight of the evidence shows Veteran has full extension in the right and left knees for the period of the appeal and the flexion of the knees has been well beyond 30 degrees (from 115 degrees to full flexion) when considering pain and functional loss. The current functional impairment of the right and left knees and the symptoms of pain are encompassed in the current 10 percent ratings under Diagnostic Code 5260. The Board has considered the Veteran's report of pain in the knees and the report of severe flare-ups. Moreover, the record shows that the VA examiners noted these symptoms in their examination reports and considered them in their assessments of the overall severity of the knee disability. Further, the Veteran's subjective complaints were directly considered by the RO when assigning the current 10 percent rating for functional limitation resulting from pain and other factors. As such, the Veteran's subjective complaints are fully contemplated by the currently assigned 10 percent ratings to the left and right knee disabilities. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds that there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. There is no evidence of ankylosis of the left and right knees. Therefore, Diagnostic Code 5256 is not for application. The weight of the competent and credible evidence does not establish moderate or severe subluxation or instability of either knee. Thus, the Board finds that the evidence is against the assignment of a rating in excess of 10 percent for the service-connected left and right knee disabilities under Diagnostic Code 5257. The Board also finds that a higher disability rating or a separate disability rating is not warranted under either Diagnostic Code 5258 or 5259. Diagnostic Codes 5258 and 5259 address meniscus injuries and symptoms which is not shown by the evidence of record. The weight of the competent and credible evidence shows that there is no right or left knee meniscal disability or pathology. Thus, higher or separate ratings are not warranted under Diagnostic Codes 5258 and 5259. As there is no evidence of nonunion of the tibia and fibula or genu recurvatum in either knee, higher or separate ratings are not warranted under Diagnostic Codes 5262 or 5263. In summary, for these reasons, the Board finds that the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the service-connected right knee or left knee disabilities during the appeal period, and the claims for higher ratings are denied. The Board has considered VAOPGCPREC 23-97 and VAOPGCPREC 9-98. The weight of the competent and credible evidence does not establish findings of subluxation or instability of either knee. Thus, the Board finds that the evidence is against the assignment of a separate rating under Diagnostic Code 5257. Separate compensable ratings for limitation of extension of the right and left knees pursuant to VAOPGCPREC 9-2004 is not for application for the appeal period. As noted above, the evidence shows that during the course of the appeal, the extension of the left and right knees has been full. Thus, on this record, a separate disability rating under Diagnostic Code 5261 is not warranted. In conclusion, affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to at least the minimum compensable rating of 10 percent for the service-connected right knee disability and 10 percent for the left knee disability for the time period prior to May 14, 2014 based on the application of 38 C.F.R. § 4.59 as interpreted in Burton, supra, and the claims for higher initial ratings are granted to that extent. The Board finds that the assignment of a disability rating in excess of 10 percent is not warranted at any time during the appeal period for the right and left knee disabilities. The preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent for the right and left knee disabilities, and the claims are denied to that extent. ORDER A 10 percent disability rating is granted for the service-connected right knee patellar tendonitis prior to May 14, 2014. A disability rating in excess of 10 percent for the service-connected right knee patellar tendonitis is denied for the entire period of the appeal. A 10 percent disability rating is granted for the service-connected left knee patellar tendonitis prior to May 14, 2014. A disability rating in excess of 10 percent for the service-connected left knee patellar tendonitis is denied for the entire period of the appeal. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs