Citation Nr: 18156566 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-22 917 DATE: December 10, 2018 ORDER Entitlement to an initial rating in excess of 10 percent, prior to June 7, 2016, for low back disability is denied. Entitlement to an initial rating of 20 percent, but no higher, from June 7, 2016, for low back disability is granted. Entitlement to an initial rating in excess of 10 percent for right knee disability is denied. Entitlement to an initial rating in excess of 10 percent for left knee disability is denied. FINDINGS OF FACT 1. Prior to June 7, 2016, the Veteran’s low back disability had not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From June 7, 2016, the Veteran’s low back disability had resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 3. From June 7, 2016, the Veteran’s low back disability has not more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 4. The Veteran’s right knee disability was manifested by painful motion; the right knee disability was not manifested by ankylosis, recurrent subluxation or instability, flexion limited to 60 degrees or less, extension limited to 5 degrees or less, impairment of the tibia or fibula, or genu recurvatum. 5. The Veteran’s left knee disability was manifested by painful motion; the left knee disability was not manifested by ankylosis, recurrent subluxation or instability, flexion limited to 60 degrees or less, extension limited to 5 degrees or less, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. Prior to June 7, 2016, the criteria for an initial rating in excess of 10 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5242-5237 (2018). 2. From June 7, 2016, the criteria for an initial rating of 20 percent, but no higher, for low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5242-5237 (2018). 3. The criteria for an initial rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5002, 5003, 5256-5263 (2018). 4. The criteria for an initial rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5002, 5003, 5256-5263 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to February 1998 and November 2001 to June 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). The Board notes that the April 2014 rating decision, in pertinent part, granted the claims to entitlement to service connection for the left knee, right knee, and low back disabilities, assigning 10 percent evaluations each, effective January 24, 2014. In a June 2014 Statement in Support of Claim, the Veteran asked for reconsideration of the evaluations assigned in the April 2014 rating decision for the left knee, right knee, and low back disabilities. The Board interprets the June 2014 Statement in Support of Claim as a notice of disagreement (NOD) to the April 2014 rating decision regarding the left knee, right knee, and low back assigned evaluations. Thus, the Board agrees with the arguments of such characterization of the issues in the October 2018 appellate brief and has characterized the issues to be initial increased ratings for these issues on appeal. A November 2015 rating decision continued the assigned evaluations and the Veteran submitted a NOD in July 2015. Subsequent to the April 2016 statement of the case (SOC), the Veteran appealed the current issues before the Board in a May 2016 VA Form 9. Duplicate copies of service treatment records and VA examinations not pertinent to the claims on appeal have been associated with the claims file after the most recent March 2017 supplemental statement of the case (SSOC). As these records are not pertinent to the issues on appeal, a wavier is not necessary. 38 C.F.R. § 20.1304(c). As such, the Board finds that there is no prejudice in proceeding with the appeal. The Board also notes that during the pendency of the appeal in the March 2017 SSOC, the evaluation for the low back disability was increased to 20 percent, effective March 2, 2017. As this rating is not the maximum allowable, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Duties to Notify and Assist The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, regarding the issue of entitlement to initial increased rating for left knee disability, right knee disability, and low back disability, service connection for these claims have been granted and the initial disability ratings and effective dates have been assigned. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examination of the Veteran. The Board acknowledges the Veteran’s representative’s reference in the October 2018 Appellate Brief to the Veteran’s prior statement, that he was last afforded a VA examination over two years ago. However, this assertion by the Veteran was specifically made in the May 2016 VA Form 9. The Veteran has since been afforded additional VA examinations in June 2016 and March 2017. Moreover, the “mere passage of time” does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Neither the Veteran nor his representative has not indicated that his symptoms have worsened or that such examinations are inadequate. Neither the Veteran nor his representative has identified any other deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, the Board finds that there is no prejudice in proceeding with the appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). 1. Entitlement to a rating in excess or 10 percent prior to March 2, 2017 and 20 percent thereafter for low back disability. By way of background, as noted above, in an April 2014 rating decision, the RO granted entitlement to service connection for lumbar degenerative joint disease, and assigned a 10 percent evaluation effective January 24, 2014, pursuant to Diagnostic Code 5242-5237. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. The Veteran disagreed with the initial rating assigned. During the pendency of the appeal, in a March 2017 SSOC, the RO increased the evaluation for the Veteran’s low back disability to 20 percent effective March 2, 2017, the date of the VA examination showing worsening, pursuant to Diagnostic Code 5242-5237. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. He is asserting that he is entitled to ratings in excess to those currently assigned. In July 2016, the Veteran was awarded separate ratings of 10 percent for right lower extremity radiculopathy and 20 percent for left lower extremity radiculopathy, both evaluations assigned from May 9, 2016. The Veteran has not appealed the evaluations assigned or the effective date of the awards. Thus, as symptomatology associated with the right and left lower extremity radiculopathy is already contemplated by separate ratings, they are not for consideration in this decision. As will be discussed separate evaluations for other neurological disabilities are not warranted for the entire period on appeal as the evidence of record has consistently noted there was not any associated bowel or bladder impairment or other neurological disability related to the thoracolumbar spine that would warrant such an evaluation during the entirety of the appeal. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Factual Background Reviewing the relevant evidence of record, the Veteran was provided a VA examination in March 2014. See April 2014 C&P Exam. During examination, the Veteran reported that during flare-ups he experienced lower back pain. On physical examination, the examiner noted the Veteran’s posture was normal and that he walked with a normal gait. Range of motion findings were as follows: forward flexion to 80 degrees, with pain at 80 degrees; extension to 15 degrees, with pain at 15 degrees; right lateral flexion to 20 degrees, with pain at 20 degrees; left lateral flexion to 10 degrees, with pain at 10 degrees; right lateral rotation to 20 degrees, with pain at 20 degrees; and left lateral rotation to 30 degrees or greater, with pain at 30 degrees or greater. Repetitive range of motion was possible with additional degree of limitation. Post-repetitive test range of motion findings were as follows: forward flexion to 70 degrees; extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 30 degrees or greater. The examiner indicated that the joint function of the spine was additionally limited by less movement than normal and pain on movement. The examiner indicated there was no localized tenderness or pain to palpation and no guarding or muscle spasm of the thoracolumbar spine. The examiner noted there was no muscle atrophy and muscle strength testing was normal. Reflex and sensory examinations were noted as normal. The examiner noted there were no other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. The examiner noted the Veteran did not have IVDS of the spine and did not use any assistive devices. Regarding functional impact, the March 2014 VA examiner noted the Veteran experienced pain with crawling around when checking on piping and experienced pain at the end of each day. The examiner noted the Veteran worked as a water craft inspector. The examiner noted that there were contributing factors of pain, weakness, fatiguability and/or incoordination and there was additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The examiner noted that the additional limitation was described as pain and stiffness. The examiner noted she was unable to provide degree of additional range of motion loss for flare-ups since the Veteran stated his back condition was worse in the morning, or when he stood or sat for prolonged periods of time. The examiner diagnosed lumbar degenerative joint disease. A November 2014 x-ray report from North Carolina Diagnostic Imaging revealed moderate disc degeneration with a mild diffuse disc bulge and a focal disc protrusion centrally consistent with a small central subligamentous disc herniation which abutted the thecal sac from L4 to L5. The report noted that from L5 to S1, there was moderate to moderately severe degenerative disc disease with disc desiccation and disc space narrowing and a grade 1 retrolisthesis and mild disc bulging with a small left paramedian disc herniation. The report noted an impression of degenerative disc disease at L4 to L5 and L5 to S1. In a July 2015 private treatment record from OrthoWilmington, the medical provider noted the Veteran’s low back pain and that symptoms began over a year ago. See July 2015 Medical Treatment Record- Non-Government Facility. The medical provider noted associated symptoms included stiffness and loss of motion. The Veteran described the pain as constant, dull, and aching, that got better with rest but was worsened by sitting and standing. The Veteran was provided a VA examination in June 2016. During examination, the Veteran reported that his back hurt all the time and that he experienced pain when he sat or stood for a long time. The Veteran reported that he experienced flare-ups when he sat or stood too long, when he kneeled, or when he lifted heavy things. He indicated the flare-ups were severe in nature that lasted approximately 15 to 30 minutes with rest. Regarding current medications, the examiner noted the Veteran had epidural steroidal injections with the next appointment in two weeks, Motrin, and Oxycontin. Range of motion findings were as follows: forward flexion to 45 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right and left lateral rotation to 30 degrees. Repetitive range of motion was possible with additional degree of limitation. Post-repetitive test range of motion findings were as follows: forward flexion to 35 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint was used repeatedly over a period of time because physical examination was performed in a clinical environment and not in the Veteran’s typical environment, where he reported his symptoms were exacerbated. However, the examiner noted that repetitive motion was conducted on the lumbar spine with a decrease in range of motion in flexion from 45 degrees to 35 degrees and thus found it was more likely than not that the Veteran would have at least a 10-degree change in flexion with a significant flare-up. Nevertheless, the examiner noted it would be pure speculation to state under what physiological conditions a flare-up would occur. The June 2016 VA examiner noted that the Veteran did not have muscle spasm or guarding but did have localized tenderness of the thoracolumbar spine that did not result in abnormal gait or abnormal spine contour. The examiner noted the Veteran did not have muscle atrophy, had normal sensory examination, and did not have ankylosis. The examiner noted the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. The examiner noted the Veteran had IVDS but had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted the Veteran did not use any assistive devices and had not had prior surgical procedure for his back disability. The examiner noted the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. Regarding functional impairment, the examiner noted the Veteran’s back disability would affect his ability to bend, lift, and carry equipment as well has his ability to run, jump, climb, squat, fall prone, sit, walk, or stand for extended periods. The examiner diagnosed lumbosacral degenerative disc disease, mild right lumbosacral radiculopathy, and moderate left lumbosacral radiculopathy. The Veteran was provided another VA examination in March 2017. During examination, the Veteran reported that his back disability began gradually during active duty and had gotten worse since retiring from military service. He reported he had lost flexibility. The Veteran described flare-ups of his back as increase in constant pain with activity. Range of motion findings were as follows: forward flexion to 50 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; right and left lateral rotation to 25 degrees. The examiner noted that pain was noted on examination but did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine noted. The examiner noted the Veteran was able to perform repetitive-use testing with at least three repetitions and noted there was no additional loss of function or range of motion after three repetitions. The examiner noted that repetitive use caused increased pain but did not cause decrease range of motion. The examiner also noted that pain increased with flare-ups which limited tolerance for activity. However, the examiner noted there was no change in range of motion during flare-ups. The examiner noted the Veteran did not have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. The examiner noted there was no muscle atrophy, no ankylosis of the spine, and no other neurologic abnormalities or findings related to the back disability. The examiner noted the Veteran did not have IVDS of the thoracolumbar spine and noted the Veteran did not use any assistive devices. Regarding functional impact, the examiner noted there was decreased tolerance for bending and lifting. The examiner also noted there was no evidence of pain on passive range of motion testing of the back and no evidence of pain on non-weight bearing testing of the back. The examiner diagnosed lumbar spine degenerative joint disease. Analysis Prior to the June 7, 2016 VA examination, the evidence of record showed, even when considering decreased range of motion after repetitive use testing or decreased range of motion from pain, the Veteran had forward flexion greater than 60 degrees, and there was no adequate evidence showing the combined range of motion of the thoracolumbar spine had been limited to 120 degrees or less. The Veteran’s back had not been ankylosed, or immobile, at any time. During this period, the Veteran had not shown muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As such, a rating in excess of 10 percent for the back disability prior to June 7, 2016 is not applicable. From June 7, 2016, the evidence of record shows that VA examinations in June 2016 and March 2017 have noted the Veteran’s forward flexion is limited to less than 60 degrees, but greater than 30 degrees. Thus, the Board finds that a 20 percent rating is warranted from June 7, 2016. However, a rating in excess of 20 percent for any period on appeal is not applicable. Even considering functional loss due to pain and other factors, the Veteran’s back disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The objective evidence of record does not support such findings. As noted by the June 2016 VA examination, with repetitive use and/or flare-ups, the Veteran’s flexion would be limited by approximately 10 additional degrees, or to 35 degrees. Examinations did not reveal any additional loss of function or range of motion on repetitive use testing that would warrant a higher rating. Thus, a higher evaluation based on limitation of motion is not warranted. There is also no evidence that the Veteran’s back disability has resulted in incapacitating episodes having a total duration of at least 2 weeks during any 12-month period prior to June 7, 2016 or a total duration of at least 4 weeks during any 12-month period thereafter. The Veteran did not report having any incapacitating episodes that required physician prescribed bedrest at the examinations, and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted for any period on appeal. In conclusion, a rating in excess of 10 percent prior to June 7, 2016 is not warranted, a rating of 20 percent from June 7, 2016 is warranted, and a rating in excess of 20 percent for the back disability is not warranted at any time during the rating period. 2. Entitlement to an initial disability in excess of 10 percent for right knee and left knee disabilities. 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 is provided for 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. Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as 30 percent disabling. 38 C.F.R. § 4.71a. Words such as mild, 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. 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 to 45 degrees warrants a 10 percent evaluation, limitation of flexion to 30 degrees warrants a 20 percent evaluation, 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 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. 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. 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 further 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 General Counsel 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’s left knee disability and right knee disability are each currently rated as 10 percent disabling under Diagnostic Code 5260, evaluations effective January 24, 2014. 38 C.F.R. § 4.71a. Factual Background Reviewing the relevant evidence, in private treatment records from OrthoWilmington, from December 2013 to May 2014, the medical providers noted the Veteran’s diagnosis of bilateral knee patellofemoral mild osteoarthritis, runner’s knee. See July 2014 Medical Treatment Record- Non-Government Facility. The providers noted the Veteran denied any instability and swelling but reported he had pain when he was squatting and climbing ladders and stairs. On physical examination, the providers noted the Veteran’s gait was steady and stable without limp, there was no tenderness along the lateral joint line on bilateral lower extremities, he had no pain or laxity with varus or valgus stress, he had negative McMurray’s test and Lachman’s test, he had no intraarticular effusion, erythema, or warmth in either knee, and he had appropriate sensation by sense of touch. The providers noted the Veteran had peripatellar tenderness to both knees and was able to extend each knee to 0 degrees and flex to 135 degrees. The providers noted the Veteran ongoing cortisone knee injections. A March 2014 x-ray report from Onslow Radiology Center revealed no fracture, no dislocation, no joint space narrowing, and no distention of the knee joint capsule in either the right knee or left knee. See April 2014 C&P Exam. The Veteran was provided a VA examination in March 2014. See April 2014 C&P Exam. During examination, the examiner noted the Veteran did not report flare-ups that impacted the function of his knees. There was full range of motion on flexion and extension in both knees. Pain on movement for flexion was noted at 140 degrees or greater for both knees and pain on movement for extension was noted at 0 degrees for both knees. The examiner noted there was pain on palpation on the right knee and regarding functional loss and/or functional impairment, both knees had pain on movement. There was no additional limitation of motion after repetitive use and no evidence of instability or patellar subluxation or dislocation noted for either knees. There was normal muscle strength noted on both knees. The examiner noted the Veteran did not have or ever had shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted the Veteran had not had any meniscal conditions or surgical procedures for a meniscal condition, had not had joint replacement or other surgical procedures in either knee, and did not use any assistive devices. The examiner noted that there was no degenerative or traumatic arthritis documented in either knee on imaging studies but did note a foreign body present in the left knee. Regarding functional impairment, the examiner noted the Veteran’s reports that before he got steroid injections in both knees, he was having problems walking up the steps on boat decks. The examiner noted there were contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability of the knee joint during flare-ups or repeated use over time. The examiner diagnosed bilateral knee patellarfemoral syndrome and left knee foreign body of unknown etiology. In a May 2014 private treatment record from Coastal Carolina Internal Medicine, the medical provider noted the Veteran had a history of chronic bilateral knee pain, left worse than right. See August 2015 Medical Treatment Record- Non-Government Facility. The provider noted the Veteran had joint injections with significant relief in the past. The Veteran reported his knee pain had been worsening over the past few weeks. The provider noted the pain was moderately severe aching, throbbing pain that was non-radiating. The Veteran reported aggravating factors included walking, standing and bending, stepping up and off boats at work, and that there were no relieving factors. The Veteran denied swelling. On inspection of the knees, the provider noted there were no deformities and no erythema, there was no tenderness on palpation, range of motion were equal and symmetrical, and McMurray’s test and Drawer’s test were both negative. In a November 2014 private treatment record from OrthoWilmington, the medical provider noted the Veteran described his knee pain as retropatellar, located deep and inside the knee, that got worse with squatting and climbing. See July 2015 Medical Treatment Record- Non-Government Facility. On physical examination, the provider noted the Veteran had significant patellofemoral crepitus, right worse than the left, but there was no joint line tenderness and no instability. The provider noted the Veteran’s knees were injected with 40 mg of Kenalog and 1 percent lidocaine. In a May 2015 private treatment record from OrthoWilmington, the medical provider noted the Veteran was last seen for his bilateral knee pain in November 2014 status post bilateral knee injections, which helped. See July 2015 Medical Treatment Record- Non-Government Facility. The provider noted the Veteran seemed to be losing some flexibility. The provider noted an impression that working diagnosis remained chondromalacia of the patella with degenerative changes in both knees, mild in severity. In a March 2017 VA examination, the Veteran reported that his knees had been getting worse over time and that both knees were less flexible than before. He also reported receiving knee injections. The Veteran described his flare-ups in both knees as an increase in the constant dull pain which occurred with activity. The Veteran did not report having any functional loss or functional impairment of the joint or extremity. Range of motion testing of the right knee showed flexion to 120 degrees and extension to 0 degrees. Range of motion testing of the left knee showed flexion to 115 degrees and extension to 0 degrees. The examiner noted there was no pain noted on examination and no objective evidence of localized tenderness or pain on palpation of the joint or associated tissue noted in either knee. The examiner noted that range of motion for either knee did not contribute to a functional loss. The examiner noted there was objective evidence of crepitus in both knees. There was no additional loss of function or range of motion after repetitive use in either knee. The examiner noted that repetitive use caused increased pain but did not decrease range of motion in either knee. The examiner also noted that pain increased with flare-ups limiting tolerance for activity in both knees. The examiner noted, however, that during flare-ups range of motion did not change in either knee. There was no evidence of instability or patellar subluxation or dislocation noted in either knee. There was normal muscle strength noted on both knees. The examiner noted there was no muscle atrophy or ankylosis in either knee and that the Veteran did not have or ever had shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted the Veteran had not had any meniscal conditions or surgical procedures for a meniscal condition, had not had joint replacement or other surgical procedures in either knee, and did not use any assistive devices. Regarding functional impact, the Veteran noted the Veteran’s limited capacity to bend and lift as well as limited tolerance for standing, walking, and running. The examiner also noted there was no evidence of pain on passive range of motion testing and no evidence of pain on non-weight-bearing testing for either knee. The examiner diagnosed left knee patellofemoral syndrome with foreign body and right knee patellofemoral syndrome. Analysis Based on the evidence of record, the Board finds that ratings in excess of 10 percent for left knee and right knee disabilities are not warranted under Diagnostic Code 5260 or 5261. The Board notes that the 10 percent ratings were granted based on painful motion in the Veteran’s service-connected left knee and right knee disabilities pursuant to C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). At no time during the period on appeal have the Veteran’s left knee and right knee disabilities been productive of flexion limited to 45 degrees or less or extension to 10 degrees or more. The VA examiners of record have consistently noted there has been no additional limitation of motion in either knee due to repetitive use testing, pain, or during flare-ups. As such, even considering functional loss due to pain and other factors, the current functional impairment of the left knee and right knee and the symptoms of pain are encompassed in the currently assigned ratings under Diagnostic Codes 5260 and 5261. The Board also finds that a separate rating is not applicable under either Diagnostic Code 5258 or 5259. Diagnostic Codes 5258 and 5259 address meniscus injuries and symptoms. The evidence of record has not indicated a meniscus condition for either knee. As such, any separate rating for a meniscus injury is not warranted. There is no objective evidence of ligamentous laxity of either knee in VA clinical records or on VA examination. The objective medical evidence does not establish separate manifestations of recurrent subluxation or lateral instability warranting a separate compensable evaluation under DC 5257. The Veteran also has not contended ongoing instability in either knee. Therefore, a separate compensable rating is not warranted under Diagnostic Code 5257. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for the left knee and right knee disabilities. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis; removal of the semilunar cartilage; malunion or nonunion of the tibia and fibula; or genu recurvatum. Thus, Diagnostic Codes 5256, 5259, 5262, and 5263 do not apply. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263. In conclusion, the Board finds that based on the evidence of record, initial ratings in excess of 10 percent are not warranted for the right knee and left knee disabilities. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel