Citation Nr: 1802937 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-00 096A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease (DJD) of the right knee. 2. Entitlement to an initial evaluation in excess of 20 percent for right knee instability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1972, from August 2001 to April 2002, and from January 2006 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for DJD of the right knee. The Veteran appealed the issue of entitlement to in initial evaluation in excess of 10 percent. In October 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer with the Board. A copy of the hearing transcript is of record. In March 2016, the Veteran was notified that he is entitled to another hearing. However, he failed to request another hearing. Accordingly, the Board will proceed. See 38 U.S.C. § 7107 (c) (2014). In April 2014, and November 2016, the Board remanded the Veteran's claim for further evidentiary development. In August 2017, the Appeals Management Center (AMC) granted the claim, to the extent that it assigned a separate 20 percent evaluation for right knee instability. FINDINGS OF FACT 1. The Veteran's service-connected degenerative joint disease of the right knee is shown to have been productive of complaints of pain, and some limitation of motion, but not flexion limited to 30 degrees, or extension limited to 15 degrees; or ankylosis, a malunion of the tibia and fibula, or dislocation. 2. The Veteran's right knee is shown to be productive of complaints that include severe instability, weakness, and risk of falling, but not severe recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5258, 5259, 5260, 5261, 5262 (2017). 2. The criteria for an initial evaluation in excess of 20 percent for right knee recurrent subluxation or lateral instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to initial increased evaluations for his service-connected right knee disabilities. During his hearing, held in October 2012, he testified to the following: his right knee symptoms include severe pain, constant aching, limitation of motion, and instability when walking. He takes Advil, and occasionally takes Darvocet, with less than total relief of his symptoms. At times when he is at work, he has to get others to get into the back of trucks to unload things. He cannot stand erect, and he has to lean on his left leg. He cannot squat and his great difficulty kneeling. When he drives, he has to use cruise control. He has difficulty using stairs, as at times his knee gives out on him. He has severe instability, with five to twenty episodes of instability a week, depending on how much sitting he is doing. He must use walls or countertops to avoid falling. See also Veteran's notice of disagreement, received in June 2010. With regard to the history of the disability in issue, the Veteran's service treatment records show that he was treated for right knee symptoms beginning in 2006, with notations that included a complaint of a long history of right knee pain. There was no history of right knee surgery. Beginning in 2007, he was noted to have osteoarthritis. A March 2007 X-ray noted narrowing of the medial joint compartment, and early osteophytic change in the medial tibial plateau, with intact lateral and patellofemoral joint compartments, and that there was no abnormality of the right knee. A March 2007 MRI (magnetic resonance imaging) study contained an impression noting chronic partial tear vs. degeneration of the anterior and posterior cruciate ligaments; the majority of these fibers remain intact, high-grade partial tear of the medial collateral ligament, high grade 2 injury, chronic tears of both the medial and lateral menisci (which are degenerative in appearance), grade 2 to grade 3 chondromalacia involving the medial and lateral compartments, and small knee joint effusion and prepatellar bursal inflammation. See 38 C.F.R. § 4.1 (2017). In November 2009, the RO granted service connection for degenerative joint disease of the right knee, evaluated as 10 percent disabling, with an effective date of October 2, 2008. The Veteran appealed the issue of entitlement to in initial evaluation in excess of 10 percent. In August 2017, the Appeals Management Center (AMC) granted the claim, to the extent that it assigned a separate 20 percent evaluation for right knee instability with an effective date of October 2, 2008. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155 (2014); 38 C.F.R. § Part 4 (2017). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in a veteran's favor. 38 U.S.C. § 5107(b). The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Degenerative Joint Disease, Right Knee The Veteran's right knee DJD is currently evaluated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, DC 5003-5260. See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; the additional code is shown after the hyphen). Here, DC 5003 represents degenerative arthritis, and DC 5260 represents a limitation of flexion, and the Board has analyzed the claims under the appropriate diagnostic codes, as noted below. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. Under 38 C.F.R. § 4.71a, DC's 5260 and 5261, which address limitation of motion of the knee, a 20 percent rating will be assigned for flexion limited to 30 degrees or extension limited to 15 degrees. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See 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). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. The Board finds that an initial evaluation in excess of 10 percent under DC 5260 or DC 5261 is not warranted for the right knee. The recorded ranges of motion for the right knee do not show that the Veteran has ever been found to have flexion limited to 30 degrees or extension limited to 15 degrees. In this regard, the only recorded ranges of motion are as follows: the Veteran's right knee had extension to 0 degrees, and flexion to 110 degrees (March 2009 VA examination report); extension to 10 degrees, and flexion to 110 degrees (January 2010 VA examination report); and extension to 10 degrees, and flexion to 90 degrees (June 2014 and February 2017 VA disability benefits questionnaires (DBQs)). Accordingly, the Board finds that the criteria for an initial evaluation in excess of 10 percent under DC's 5260, and 5261 are not shown to have been met, and that an increased initial evaluation under either of these codes is not warranted. The Board notes that the August 2017 supplemental statement of the case included the issue of entitlement to a compensable evaluation for limitation of right knee flexion. In VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005), General Counsel determined that separate disability ratings could be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. Here, the ranges of motion in the right knee do not meet the criteria for even a 0 percent rating under DC 5260, i.e., flexion limited to 60 degrees. A separate compensable evaluation for limitation of right knee flexion is therefore not warranted. The Board has also considered whether an increased rating could be assigned under 38 C.F.R. §§ 4.40 and 4.45, on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98, 63 Fed. Reg. 56704 (1998). The March 2009 VA examination report shows that the Veteran complained of right knee pain, for which he took Darvocet prn (as occasion requires). He complained of giving way, pain, stiffness and weakness. He denied deformity, incoordination, decreased speed of motion. He reported severe flare-ups every three to four months, lasting hours. He reported that there was no loss of motion during flare-ups, and that he could stand more than one hour, but less than three hours. He reported that he had no limitation in walking. The report indicates the following: the Veteran has been employed full-time for one to two years with the same employer. There was no time lost from work in the last 12-month period. The Veteran's occupational activities were impacted by pain, and has increased pain with prolonged sitting and position changes. He has to take frequent stretch breaks. There were no effects on driving, grooming, toileting, dressing, bathing, and feeding, and moderate effects on recreation and chores. The January 2010 VA examination report shows that the Veteran complained of right knee pain, with use of NSAIDs (nonsteroidal anti-inflammatory drugs) (Alleve). There is no history of hospitalization or surgery. The Veteran complained of pain. The examiner indicated that there was no deformity, giving way, locking episodes, stiffness, weakness, decreased speed of joint motion, incoordination, symptoms of inflammation, or flare-ups. He said that he was able to stand for 15 to 30 minutes, and walk more than 1/4 mile, but less than one mile. There were significant effects on usual occupation, specifically, he cannot easily get in and out of trucks, or carry equipment weighing more than 30 to 40 pounds, he has difficulty using ladders or steps, and he cannot kneel or squat. There were no effects on grooming, toileting, dressing, bathing, feeding, shopping, and chores. There were moderate effects on driving, traveling, recreation, exercise. Sports was prevented. The Veteran has been employed full-time, in a liaison office, for one to two years with the same employer. There was no time lost from work in the last 12-month period. The Veteran previously worked as a powered ground equipment mechanic for 15 years. Both the March 2009 and January 2010 VA examination reports show that the examiner indicated that there were no constitutional symptoms of arthritis, and no incapacitating episodes of arthritis. The Veteran did not use assistive devices. The Veteran's gait was antalgic. There was objective evidence of pain with active motion, but not following repetitive motion. There was no ankylosis. The June 2014 VA DBQ shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran denied flare-ups. On examination, there was no objective evidence of painful motion. The Veteran had functional loss in the form of less movement than normal. Following repetitive use testing, there was no additional limitation of motion. Strength of right knee flexion and extension was 5/5. There is no history of knee surgery. The Veteran does not use any assistive devices. The Veteran's ability to work was impacted to the extent that he can only walk for 50 years before having to stop and rest, he can only climb one flight of stairs at a time, he cannot climb a ladder, or kneel or squat, and he can only stand for 15 minutes at a time. There is no pain, weakness, fatigability, or incoordination during range of motion testing. The February 2017 VA DBQ shows that the examiner indicated that the Veteran's claims file had not been reviewed. The Veteran complained of flare-ups with pain, during which he could not straighten his leg due to pain. He denied functional loss, or functional impairment, however, the report notes that on examination the Veteran had functional loss in the form of limitations on standing, lifting, using stairs, bending, squatting, locomotion, and sitting. There was pain on flexion, active and passive motion, and on weight bearing and non-weight bearing. Following repetitive use testing, there was no additional limitation of motion. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, or functional ability with flare-ups. In each case, the examiner stated that to provide an opinion would require mere speculation, explaining that "all measurements are the same on today's exam." There was less movement than normal, disturbance of locomotion, and interference with sitting and standing. Strength of right knee flexion and extension was 5/5. There was no muscle atrophy or ankylosis. The Veteran regularly used a cane, and occasionally used a brace. The Veteran's ability to perform any type of occupational task was impacted to the extent he has limitations in standing, walking, bending, squatting, lifting, using stairs, and sitting. The diagnosis was degenerative arthritis, right knee. In summary, while there is some evidence of pain, and limitation of motion, the evidence does not otherwise show functional loss due to pain to warrant a rating in excess of 10 percent. Pain alone does not constitute a functional loss under VA regulations. Mitchell. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see also 38 C.F.R. § 4.40. Here, even considering the Veteran's pain, he is shown to have had at least 90 degrees of flexion, which is well in excess of the 30 degrees required for a rating in excess of 10 percent. There is no evidence of additional loss in the range of motion following repetitive use testing. Strength has been shown to be 5/5 upon both extension and flexion. There is no evidence of muscle atrophy. When the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that when the ranges of motion in the right knee are considered together with the evidence of functional loss due to knee pathology, the evidence does not support a conclusion that the loss of motion in the right knee more nearly approximates the criteria for an initial evaluation in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. Additionally, for all analyses of functional loss due to pain, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14 (2017); VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). The Board must consider the possibility of a higher rating under all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. In this case, there is no evidence to show that the Veteran's right knee is productive of ankylosis, or a malunion of the tibia and fibula. Accordingly, an initial evaluation in excess of 10 percent is not warranted under DCs 5256 or 5262. In Lyles v. Shulkin, No. 16-0994 (Nov. 29, 2017), the U.S. Court of Appeals for Veterans Claims held that under 38 C.F.R. § 4.71a separate evaluation may be assigned for meniscal problems under DCs 5258 or 5259, even when ratings are in effect under DCs 5257 and 5261. Cf. VA Adjudication Procedure Manual M21-1 (M21-1), III.iv.4.A.4.i. and j. The evidence is insufficient to show that the Veteran has a right knee meniscal condition. In this regard, notwithstanding an apparently erroneous notation of a meniscal abnormality in the January 2010 VA examination report (but findings of no surgically-absent meniscus, or evidence of a tear), the June 2014 and February 2017 VA DBQs show that the examiners noted that there was no history of a meniscal condition and/or meniscal surgery. See also March 2009 VA examination report (noting that there was no meniscus abnormality). Accordingly, a separate rating is not warranted under DC 5258 or DC 5259. Right Knee Instability Under 38 C.F.R. § 4.71a, DC 5257, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The March 2009 VA examination report notes that there was no instability, and no abnormal tendons or bursae. The January 2010 VA examination report notes that there was no instability, episodes of dislocation or subluxation, or meniscal dislocation. The June 2014 VA DBQ shows that joint stability testing results for anterior instability, posterior instability, and medial-lateral instability, were all normal. The February 2017 VA DBQ shows that the examiner noted that there was no history of recurrent patellar subluxation or dislocation, or subluxation of the right knee joint. There was a history of moderate lateral instability. On examination, there was "1+" (i.e., instability measuring between 0 and 5 millimeters) anterior instability, medial instability, and lateral instability (on a scale with a maximum of "3+" for instability measuring between 10 and 15 millimeters). The Board finds that the preponderance of the evidence shows that the Veteran's right knee is not productive of severe recurrent subluxation or lateral instability, and that an initial evaluation in excess of 20 percent is not warranted for severe recurrent subluxation or lateral instability of the right knee. As an initial matter, in August 2017, the AMC granted an effective date of October 2008 for its 20 percent evaluation for right knee instability. The AMCs assignment of an effective date in October 2008 appears to have been quite generous, as there is no evidence whatsoever of right knee instability prior to the Veteran's VA examination in February 2017. Furthermore, there are no findings to show severe recurrent subluxation or lateral instability. The February 2017 VA DBQ findings as to right knee instability show that the examiner noted a "moderate" history of lateral instability, with findings of "1+" anterior, medial, and lateral instability (on a scale from normal to 3+). Accordingly, the Board finds that an initial evaluation in excess of 20 percent under DC 5257 is not warranted for severe recurrent subluxation or lateral instability of the right knee, and that the claim must be denied. Conclusion The Board has considered the Veteran's statements that he should be entitled to increased initial evaluations. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). A lay person is competent to testify only as to observable symptoms. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Board first notes that most of the Veteran's complaints of knee symptoms do not appear to implicate the criteria at DC 5257, and that most of his symptoms were discussed in association with functional loss under DCs 5260 and 5261. See 38 C.F.R. §§ 4.40, 4.45; DeLuca. With regard to instability and DC 5257, the Veteran is not shown to have specifically complained of the criteria listed as DC 5257, i.e., recurrent subluxation or lateral instability. The Board has considered, however, that he is recently shown to use a knee brace and a cane, and that some of his complaints, such as complaints of instability, "giving way," and a fear of falling, could be read to implicate the criteria at DC 5257. While an appellant is competent to testify as to observable symptoms, Falzone, the Veteran does not assert, and there is no evidence to show, that he is qualified through specialized education, training, or experience, to diagnose or offer an opinion on the etiology of his right knee symptoms. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir. 2012). The etiology of his right knee symptoms is a complex medical issue; lay testimony is therefore not always probative as such issues. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Based on a detailed review of the medical evidence and the Veteran's statements, the Board finds that the Veteran is not competent to provide an opinion as to the cause of his claimed symptoms. See 38 C.F.R. § 3.159 (a) ("Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); Jandreau, 492 F.3d at 1377 (competency is a question of fact, which is to be addressed by the Board). While the Veteran clearly has impairment due to his right knee, this is the basis for the current evaluations. Given the foregoing, the Board finds that the medical evidence, which includes specific findings as to joint stability, outweighs the Veteran's contentions to the effect that he has severe recurrent subluxation or lateral instability of his right knee (a medical determination more than anything else), such that an initial evaluation in excess of 20 percent is warranted under DC 5257. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). In deciding the Veteran's claims, the Board has considered the determination in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to initial increased evaluations for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that either of the Veteran's ratings should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the time the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of either of the claimed disabilities such that an initial increased evaluation is warranted. The issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App 484 (2016); see also Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, neither the Veteran, nor the record, raises the issue of an extra-schedular rating for any of the disabilities in issue. In reaching these decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. The Veteran has been afforded several examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). In November 2016, the Board remanded this claim. The Board directed that all records of treatment that the Veteran may have received at any VA health care facility since November 2012 be obtained. This has been done. The Board further directed that the Veteran be scheduled for a VA examination to evaluate the severity of his service-connected right knee. In February 2017, this was done. To the extent that the VA examiner appears not to have reviewed the Veteran's record, as directed by the Board, this is not a basis upon which to delay adjudication of these claims. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no evidence to show that the Veteran's right knee symptoms have affected his earning capacity, or that he has more than temporary flare-ups. Voerth v. West, 13 Vet. App. 117 (1999) (re-examination not required where a veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days); see also VAOPGCPREC 20-95, 61 Fed. Reg. 10,064 (1996) (a VA examiner must review a claimant's prior medical records only when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's finding and conclusions); February 2017 VA DBQ. Finally, to the extent that the February 2017 VA examiner stated that he was unable to provide an opinion as to functional loss with repeated use, or upon flare-ups, without resort to speculation, this determination is accompanied by an adequate explanation, i.e., that all findings were the same upon examination. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this regard, the examiner recorded the Veteran's description of his current symptoms, to include his symptoms during flare-ups (i.e., that his leg would not straighten out, and that he had pain). The examiner provided multiple right knee findings, and discussion as to the scope of the Veteran's functional loss and his limitations, to include the extent of occupational impairment due to his right knee symptoms. In summary, it appears that the February 2017 VA DBQ fully afforded the Veteran adequate joint testing, and that no prejudice accrues to the Veteran in relying upon this examination report. The Board therefore finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An initial evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee is denied. An initial evaluation in excess of 20 percent for service-connected right knee instability is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs