Citation Nr: 18145233 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 10-42 059 DATE: October 26, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for a torn meniscus of the right knee is denied. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee with limitation of flexion is denied. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion is denied. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for osteoarthritis of the left knee with limitation of flexion is granted. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for degenerative joint disease of the right knee with limitation of flexion is granted. Entitlement to a separate compensable rating for limitation of extension of the left knee is denied. Entitlement to a separate compensable rating for limitation of extension of the right knee is denied. Entitlement to a separate compensable rating for instability of the left knee is denied. Entitlement to a separate compensable rating for instability of the right knee denied. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating for his torn meniscus of the right knee, and the rating schedule is adequate to evaluate such disability. 2. Prior to October 11, 2017, the evidence shows that the Veteran's service-connected osteoarthritis of the left knee with limitation of flexion was manifested by, at worst, flexion limited to 90 degrees with complaints of pain. 3. Prior to October 11, 2017, the evidence shows that the Veteran's service-connected degenerative joint disease of the right knee with limitation of flexion was manifested by, at worst, flexion limited to 90 degrees with complaints of pain. 4. On and after October 11, 2017, the Veteran’s range of motion testing for his osteoarthritis of the left knee with limitation of flexion reflects that his flexion was limited to 90 degrees and that he was unable to perform repetitive use testing. 5. On and after October 11, 2017, the Veteran’s range of motion testing for his degenerative joint disease of the right knee with limitation of flexion reflects that his flexion was limited to 90 degrees and that he was unable to perform repetitive use testing. 6. The Veteran’s left knee disability has not been limited to at least 10 degrees of extension, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups. 7. The Veteran’s right knee disability has not been limited to at least 10 degrees of extension, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups. 8. Throughout the appeals period, the Veteran’s left knee disability has not manifested in subluxation or lateral instability that is of at least “slight” severity. 9. Throughout the appeals period, the Veteran’s right knee disability has not manifested in subluxation or lateral instability that is of at least “slight” severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for a torn meniscus of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 2. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee with limitation of flexion is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for osteoarthritis of the left knee with limitation of flexion is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for degenerative joint disease of the right knee with limitation of flexion is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 6. The criteria for entitlement to a separate compensable rating for limitation of extension of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 7. The criteria for entitlement to a separate compensable rating for limitation of extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 8. The criteria for entitlement to a separate compensable rating for instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 9. The criteria for entitlement to a separate compensable rating for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to June 1995. This matter comes before the Board on appeal from an October 2009 Regional Office (RO) rating decision. In October 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The claims of entitlement to increased ratings for limitation of flexion for the left and right knees were previously denied by the Board in a December 2015 decision. They were subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Order, the Court granted the parties’ Joint Motion for Partial Remand (Joint Motion), which vacated the issues on appeal and remanded them to the Board for readjudication. Increased Rating Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. In Fenderson, the Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of history, the Veteran was service connected for a right knee injury in a December 1995 rating decision. The Veteran was rated 10 percent disabled under Diagnostic Code 5010-5257 for slight instability of the knee, and early degenerative changes, effective July 1, 1995. An August 2004 rating decision continued the Veteran's 10 percent evaluation for his right knee disability, but changed the Diagnostic Code to 5010-5260 for limitation of motion and pain. The RO noted that this issue was originally granted 10 percent for slight instability but now the RO was rating it on the basis of loss of motion and pain. In a December 1996 rating decision, the Veteran's left knee was service connected and awarded a 10 percent evaluation under Diagnostic Code 5257 for “pain on use,” effective July 1, 1995. The October 2009 rating decision continued the 10 percent rating for the Veteran's left knee disability, but changed the Diagnostic Code to 5003-5260 for arthritis with pain and limitation of motion. The Board notes that the scope of appellate review is limited to the October 2009 rating decision on appeal. In regard to the left knee, it appears the RO changed the diagnostic code to more accurately reflect the symptomatology for which the Veteran is receiving compensation. See generally Butts v. Brown, 5 Vet. App. 532, 538 (1993); Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011); Murray v. Shinseki, 24 Vet. App. 420 (2011). The Veteran's service-connected left knee disability currently is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 (degenerative arthritis-limitation of leg flexion). See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Diagnostic Code 5003 provides a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned for degenerative arthritis with x-ray evidence of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. A 10 percent rating is assigned under Diagnostic Code 5260 for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned under Diagnostic Code 5260 for leg flexion limited to 15 degrees. The Veteran's service-connected right knee disability currently is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260 (traumatic arthritis-limitation of leg flexion). Diagnostic Code 5010 provides that traumatic arthritis, substantiated by x-ray findings, should be rated as degenerative arthritis under Diagnostic Code 5003. Separate ratings may be assigned for limited knee motion in flexion (under Diagnostic Code 5260) and in extension (under Diagnostic Code 5261), as well as for instability (under Diagnostic Code 5257). VA Gen. Counsel. Prec 23-97 (July 1, 1997). A separate compensable rating may also be assigned for meniscal pathology under Diagnostic Code 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5260, a 0 percent (noncompensable) rating is assigned for leg flexion limited to 60 degrees. A 10 percent rating is assigned for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned for leg flexion limited to 15 degrees. Diagnostic Code 5261 provides a 0 percent rating for leg extension limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent rating is warranted where extension is limited to 45 degrees. Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. Words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Entitlement to an initial rating in excess of 20 percent for a torn meniscus of the right knee is denied. The Veteran is in receipt of a 20 percent rating for his right knee torn meniscus under 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the highest schedular rating that is available under that diagnostic code. Therefore, the Board finds that entitlement to a schedular rating in excess of 20 percent is not warranted. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee with limitation of flexion is denied. Prior to October 11, 2017, entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion is denied. The Board finds that, prior to October 11, 2017, the preponderance of the evidence is against granting the Veteran's claims for entitlement to ratings in excess of 10 percent based on limitation of flexion of the left or the right knee. Rather, the evidence from this period reflects that the Veteran’s left and right knee disabilities are manifested by limitation of flexion to no less than 90 degrees with complaints of pain. (See September 2014 VA examination report.) Documents from the U.S. Postal Service indicate that, when examined in February 2009, the Veteran's complaints included chronic bilateral knee weakness. Physical examination of both knees showed minimal non-focal tenderness, a full range of motion, normal ligament stability, and minimal effusion. The Veteran was put on restricted duty following this examination. On outpatient treatment in March 2009, the Veteran's complaints included one month of intermittent right knee pain just below the joint line with occasional popping. He denied any instability, weakness, locking, swelling, or redness. Physical examination of the right knee showed tenderness to palpation of the lateral aspect, the head of the fibula, and the iliotibial tract; no effusion, erythema, misalignment, or crepitus; normal motion without pain or crepitus; and no tenderness on ambulation. The assessment included joint pain localized in the knee. March 2009 right knee x-rays showed moderate tricompartmental osteoarthritis with posterior patellar spurring. On VA examination in July 2009, the Veteran's complaints included "lateral right knee pain made worse by walking over 30 minutes, kneeling, [and] climbing stairs," stiffness, and giving way. He rated his right knee pain as 7/10 on a pain scale (with 10/10 being the worst imaginable pain). Physical examination showed a "generally gimpy" gait "with no specific guarding of either leg"; right knee tenderness at the lateral joint line and guarding "with passive movement of any kind"; no edema, effusion, weakness, redness, or heat; no subluxation; and no ligament instability. Range of motion testing of the right knee showed flexion to 110 degrees with pain beginning at 100 degrees. There was no additional limitation of motion on repetitive testing. The diagnoses included degenerative joint disease of the right knee. On VA outpatient treatment in September 2010, the Veteran's complaints included increased left knee pain. He reported that his left knee pain interrupted his sleep and was not radiating. A history of bilateral knee injuries was noted. He also reported that wearing a right knee brace helped his right knee pain. Physical examination of the knees showed no swelling or muscle atrophy, normal patellae, no instability "though difficulty relaxing left leg with" range of motion testing, no crepitus, tenderness to palpation bilaterally over the medial and lateral joint lines, negative grind test on the left knee, and a slightly positive grind test on the right knee. X -rays of the left knee were reviewed and showed sharpening of the tibial eminence, early degenerative change at the patellofemoral joint space, and no effusion. The assessment included worsening left knee pain "greatest over the medial joint line and the left fibular head. The fibular head tenderness could be due to a ligament or tendon inflammation." In November 2010, the Veteran's complaints included left knee pain. He reported that his left knee pain bothered him at night. His prior x-rays were reviewed and showed definite osteoarthritis in the right knee and very mild osteoarthritis in the left knee. Physical examination of the left knee showed range of motion within normal limits, no evidence of warmth or swelling, tenderness to palpation over the lateral joint line, and no crepitus. The assessment included left knee pain that may be secondary to arthritis "though description of pain today [was] not as consistent with this. [He] cannot rule out tendonitis." In October 2013, the Veteran's complaints included bilateral knee "trouble for years." He woke up once or twice a night due to bilateral knee pain. He had daily morning knee stiffness and restricted motion on waking up in the morning. Physical examination of the knees showed normal alignment, no effusions, "no abnormal or lateral thrust to either knee during stance phase," an inability to do resisted knee extension on either knee, "credible resisted knee flexion," bilateral extension to -5 degrees, bilateral flexion to 110 degrees, pain on palpation of the right knee patellofemoral joint, and "notable tenderness at the patellar apex" of the left knee. X-rays of the knees showed mild degenerative changes. The assessment included right knee patellar tendinopathy and chronic MCL strain and left knee patellar tendinopathy. In February 2014, the Veteran reported to his VA treating clinician that his bilateral knee pain was 3/10 on a pain scale and he was going to the gym at least 3 times a day. In March 2014, the Veteran reported to his VA treating clinician that "[h]is knees are benefitting from some stretching routines and also from patellar support braces." The Veteran was discharged from VA physical therapy in May 2014 after completing a course of outpatient physical therapy for his complaints of bilateral knee pain. The Veteran reported that he was doing well and was "ready for independent management" of his bilateral knee pain. He rated his bilateral knee pain as 3/10 which he described as "not much, it's tolerable." On a September 2014 VA knee and lower leg conditions examination report, the Veteran complained of daily knee pain. He wore a knee brace on the right knee. He experienced weekly flare-ups, which resulted in decreased range of motion. Range of motion testing showed flexion to 90 degrees in both knees, no limitation of extension, and no additional limitation of motion on repetitive testing. Physical examination of the knees showed less movement than normal, excess fatigability, pain on movement, tenderness to palpation for the joint lines or soft tissues, 5/5 muscle strength, no joint instability, and no history of recurrent patellar subluxation/dislocation. The Veteran used a knee brace on the right knee regularly and a cane constantly for ambulation. X-rays showed there was no arthritis or patellar subluxation but that there were bilateral patella enthesophytes. The VA examiner stated that the impact of the Veteran's bilateral knee disabilities on his employability was that he would need sedentary work although he was "able to tolerate his line of work." The diagnosis was bilateral knee strain. The Veteran underwent a VA examination in February 2017 that notes the Veteran has reported functional loss in that he has decreased range of motion, specifically noting that going up stairs causes him pain. He also has less range of motion with his knees and has pain with ambulation, bending, and stooping. The pain also affects his sleep. While he was not undergoing a flare-up at the moment, he noted that he has flare-ups when the weather changes, which cause his knees to become more painful. On examination, flexion was full in both left and right knees. Pain was noted on flexion but did not result in functional loss. The examiner was unable to say whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Board acknowledges the Veteran's lay assertions that his service-connected right knee disability and left knee disability are both more disabling than currently evaluated. The Board finds it highly significant that, when he was discharged from physical therapy in May 2014, the Veteran stated that he was doing well and he was not experiencing much bilateral knee pain. The record also does not indicate that the Veteran experiences at least bilateral knee flexion limited to 30 degrees or less (i.e., a 20 percent rating under Diagnostic Code 5260) such that a disability rating greater than 10 percent is warranted for limitation of flexion for either his left knee disability or right knee disability. As noted above, both the Veteran's service-connected right knee disability and left knee disability are manifested by, at worst, flexion limited to 90 degrees with complaints of pain (as seen on VA examination in September 2014). No additional limitation of motion on repetitive testing was demonstrated on VA examination in July 2009, September 2014, and February 2017. The Veteran complains of flare-ups. At the September 2014 and February 2017 VA examinations, the examiners reported that the Veteran was not currently experiencing a flare-up at the examination. The VA examiners explained that beyond the data results from repetitive range of motion testing in this report, it would be speculative to opine as to whether or not pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiners maintained that as such, it would be speculative to describe any such additional limitation due to pain, weakness, fatigability or incoordination or additional range of motion loss due to "pain on use or during flare-ups." Indeed, the Veteran indicated that he experienced flare-ups when the weather changes, which is not a finite point in time. The Veteran was examined during the Fall and Winter which only revealed the level of impairment as documented. The Board finds that the September 2014 and February 2017 VA examiners’ opinions comply with Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) and DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). The VA examiners have clearly articulated why it is not feasible to portray any additional functional impairment the Veteran experiences during flare-ups or on extended use. VA does not have to demand a conclusive opinion from the examiner. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Indeed, a higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for osteoarthritis of the left knee with limitation of flexion is granted. On and after October 11, 2017, entitlement to an increased rating from 10 percent to 30 percent, but no higher, for degenerative joint disease of the right knee with limitation of flexion is granted. The October 11, 2017, VA examination report reflects that the Veteran’s left and right knee range of flexion was from 0 to 90 degrees. The Veteran was unable to squat beyond 90 degrees. The examiner explained that a goniometer was not used because she “was having to help hold his leg up with both arms,” but noted that “it was an exact 90 degree angle.” The following remarks were included at the end of the examination: Active ROM [range of motion] was not attempted because the Veteran stated that he was still injured and in pain from his FEB 2017 active ROM testing. Pain was noted to begin at 90 degrees of knee flexion. Flexion beyond 90 [degrees] and repetitive flexion was not attempted as the patient remarked throughout the exam how much the last examiner had injured his knees and back and how he was still in pain from that exam and he was not able to lift his legs to bend without assistance requiring both hands to lift his legs. Given the level of pain avoidance displayed/voiced by the Veteran it would be speculative to assess what the actual[] ROM is in both passive and active ROM. Given that the Veteran did show some degree of limitation of flexion on initial testing, the Board will resolve doubt in his favor and will assign the maximum 30 percent ratings for limitation of flexion based on his inability to perform repetitive motion. These ratings will be effective from October 11, 2017, which is the date of this examination. Entitlement to a separate compensable rating for limitation of extension of the left knee is denied. Entitlement to a separate compensable rating for limitation of extension of the right knee is denied. The Veteran has claimed entitlement to separate compensable ratings for limitation of extension of the left and the right knees. The Joint Motion stated that “the Board should consider whether [the Veteran] is entitled to a separate rating under diagnostic code 5261 for bilateral knee extension.” It noted that “[a]n October 2013 rheumatology note indicated that upon physical examination, “[i]n a seated position [Appellant] is unable to do resisted knee extension on either knee.’” The October 2013 record notes that the Veteran’s complaints included bilateral knee "trouble for years." He woke up once or twice a night due to bilateral knee pain. He had daily morning knee stiffness and restricted motion on waking up in the morning. Physical examination of the knees showed normal alignment, no effusions, "no abnormal or lateral thrust to either knee during stance phase," an inability to do resisted knee extension on either knee, "credible resisted knee flexion," bilateral extension to -5 degrees and bilateral flexion to 110 degrees, pain on palpation of the right knee patellofemoral joint, and "notable tenderness at the patellar apex" of the left knee. X-rays of the knees showed mild degenerative changes. The assessment included right knee patellar tendinopathy and chronic MCL strain and left knee patellar tendinopathy. In the September 2014 VA knee and lower leg conditions examination report, there was no limitation of extension, and no additional limitation of motion on repetitive testing. Physical examination of the knees showed less movement than normal, excess fatigability, pain on movement, tenderness to palpation for the joint lines or soft tissues, 5/5 muscle strength, no joint instability, and no history of recurrent patellar subluxation/dislocation. The Veteran used a knee brace on the right knee regularly and a cane constantly for ambulation. X-rays showed no arthritis or patellar subluxation and also showed bilateral patella enthesophytes. The VA examiner stated that the impact of the Veteran's bilateral knee disabilities on his employability was that he would need sedentary work although he was "able to tolerate his line of work." The diagnosis was bilateral knee strain. The February 2017 VA examination report reflects that the Veteran had full extension. He was able to perform repetitive motion testing. The examiner was unable to say whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The October 2017 VA examination report reflects that the Veteran had full extension, but he was not able to perform repetitive motion testing. He did not report having pain on extension. Again, the following remarks were included at the end of the October 2017 examination: Active ROM [range of motion] was not attempted because the Veteran stated that he was still injured and in pain from his FEB 2017 active ROM testing. Pain was noted to begin at 90 degrees of knee flexion. Flexion beyond 90 [degrees] and repetitive flexion was not attempted as the patient remarked throughout the exam how much the last examiner had injured his knees and back and how he was still in pain from that exam and he was not able to lift his legs to bend without assistance requiring both hands to lift his legs. Given the level of pain avoidance displayed/voiced by the Veteran it would be speculative to assess what the actual[] ROM is in both passive and active ROM. The Board finds that, based on the above, entitlement to a separate compensable rating for limitation of extension is not warranted for either knee. As noted above, none of the examination reports of record reflects that the Veteran had extension that was less than full. The October 2013 VA medical record that was referenced in the Joint Motion found extension to be more than full, as it was to -5 degrees without resistance. The Veteran’s inability to perform resisted knee extension exercises while seated is not analogous to his being unable to extend his knee when tested under the conditions that are utilized during VA examinations. In VA examinations, resistance testing is employed to determine muscle strength, not range of motion. As noted above, the Veteran’s extension was beyond full when tested without resistance at that time. The Board therefore finds that the Veteran’s inability to perform extension against resistance when seated does not warrant the assignment of a compensable rating. In addition, the Board finds that the Veteran’s inability to perform repetitive use testing does not warrant the assignment of a compensable rating based on limitation of extension. Unlike with the ratings that are assigned above based on limitation of flexion, at no point in the appeals period was either of the Veteran’s knees ever found to have less than full extension. Throughout the appeals period and as expressly noted in the October 2017 VA examination report, the Veteran’s painful loss of motion has been demonstrated to occur in flexion, not in extension. Furthermore, the assignment of a separate compensable rating for limitation of extension would result in rating the Veteran’s knees as though they were impaired to a level that was consistent with the knees of individuals who are in need of joint replacement. The Veteran’s knee impairment is not nearly so severe. Based on the above, the Board finds that entitlement to separate ratings for limitation of extension of either knee is not warranted. Entitlement to a separate compensable rating for instability of the left knee is denied. Entitlement to a separate compensable rating for instability of the right knee is denied. The Veteran has also claimed entitlement to separate compensable ratings for instability of the left and the right knees. The Joint Motion found “that the Board provided an inadequate statement of reasons or bases to support its determination that Appellant is not entitled to separate ratings for each of his knees based on instability.” It noted that the Board’s statement of reasons or bases was inadequate “because it failed to acknowledge and discuss objective evidence of record showing that Appellant had ‘some valgus varus instability bilaterally’ as noted in the September 11, 1995, VA C&P [Compensation & Pension] general medical examination.” It specifically noted that, “[i]n the diagnosis section of the examination report, the examiner noted that Appellant had a ‘[h]istory of right knee injury with some instability of both knees with crepitus marked more in the left than right.’” It further noted that: While the Board, in the decision on appeal, focused on the evidence of record from 2009 through 2014, … the parties agree that the September 1995 examination is pertinent, and potentially favorable, evidence that the Board should have addressed before concluding, later in the decision on appeal, that the evidence of record does not support a separate rating under DC 5257 based on instability. The Board has considered the September 1995 record in the context of the history of his disabilities. As noted above, where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). The Court’s analysis in Francisco provides a framework in which to contextualize the significance of the September 1995 medical findings in the case at hand: Compensation for service-connected injury is limited to those claims which show present disability. See 38 U.S.C. § 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. In Proscelle v. Derwinski, 2 Vet. App. 629 (1992), a four-year period had elapsed since the veteran's last medical examination of his service-connected disability and his claim for an increased rating. The Court found that before the claim could be fairly adjudicated, a medical examination to determine the current level of disability was required. Id. at 632. See also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) ("Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted."). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1993), the regulations do not give past medical reports precedence over current findings…. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). In the case at hand, the Board notes that the September 1995 VA examination report notes a finding of “some valgus varus instability bilaterally.” Such findings were made more than 13 years prior to the start of the appeals period in this case. The record contains numerous intervening examination reports and treatment records, and multiple VA examination reports were conducted during the course of the appeals period and have been associated with the claims file. To the extent that the September 1995 record conflicts with the evidence that has been created during the course of this appeal, the Board finds that the evidence that was created during the appeals period provides a more probative indication of the current severity of the Veteran’s left and right knee disabilities for the purpose of assigning disability ratings. The July 2009 VA examination report notes that the Veteran reported that he experiences giving way in his right knee but not in his left knee. It was noted that he wears a brace on his right knee but not on his left knee. However, no subluxation was found on either knee on examination. The anterior and posterior cruciate ligaments and medial and lateral collateral ligaments stability tests were within normal limits on both knees. Likewise, while the September 2014 VA examination report reflects that the Veteran wears a right knee brace, but that all joint stability testing was normal on the right and left knees and there was no evidence or history of recurrent patellar subluxation or dislocation. Both the February 2017 and the October 2017 VA examination reports specifically found no history of recurrent subluxation or instability and found no instability on joint stability testing. A March 2017 VA medical record notes that the Veteran has complained of unstable knees but that the doctor could not detect any instability. It was noted that any instability could be related to derangement consistent with possible tears of the menisci. The Board notes the Veteran’s report of his knees giving way. However, in light of the consistent and repeated normal findings on examination during the appeals period, the Board finds that any knee subluxation or lateral instability does not rise to a severity to approximate the criteria for “slight” disability to warrant a 10 percent rating under Diagnostic Code 5257. Extraschedular Evaluations The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected left and right knee disabilities. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the Veteran's disability picture is adequately contemplated by the rating schedule. The Veteran's service-connected knee disabilities are primarily manifested by pain and limitation of motion which primarily impair his ability to stand and walk for long periods and negotiate stairs. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knees provide disability ratings on the basis of functional impairment and limitation of motion. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. To the extent that the Veteran contends that an extraschedular rating may be warranted because the pain from his knee disabilities wakes him up at night or otherwise gives him trouble sleeping, the Board notes that the impairment at issue is the pain itself, and that the manifestation of this pain in difficulty sleeping is contemplated by the schedular disability ratings. (Continued on the next page)   As the Veteran's disability picture is contemplated by the rating schedule, the schedular criteria are adequate and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel