Citation Nr: 1817166 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-22 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to increased disability ratings for the components of the Veteran's service-connected left knee disability, assigned a 20 percent rating for limitation of extension from December 22, 2008, to March 24, 2009, a 10 percent rating for limitation of motion or symptomatic removal of semilunar cartilage from March 25, 2009, and a 10 percent rating for lateral instability from February 16, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran had active service from June 1966 to April 1970. This appeal originally came before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in May 2014. At that time, the Board determined that the Veteran's left knee disability warranted a 20 percent rating, but not higher, for limitation of extension from December 22, 2008, to March 24, 2009, a 10 percent rating, but not higher, for limitation of motion or symptomatic removal of semilunar cartilage from March 25, 2009, and a rating of 10 percent, but not higher, for instability from February 16, 2009. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court granted a joint motion for remand filed by the parties and remanded the case to the Board for action consistent with the joint motion. The Board remanded the matter in August 2017 and September 2015. All remand instructions are complete. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). By February 2018 Appellate Brief, the Veteran submitted a waiver of new evidence for RO consideration. The Veteran was recently granted service connection for a left knee scar by a December 2017 rating decision. The Board does not consider the left knee scar rating as under appeal. The Veteran has not expressed disagreement with that rating and in December 2017 specifically stated his appeal does not involve scar tissue. FINDINGS OF FACT 1. For the duration of the appeal, the Veteran's left knee disability has been production of symptomatic removal of semilunar cartilage. It is not reflective of dislocated semilunar cartilage. 2. The Veteran's left knee flexion has not been limited to 45 degrees or less. 3. From December 22, 2008 to March 24, 2009, the Veteran's left knee disability was productive of limitation of extension to 17 degrees, but not 20 degrees or greater. 4. After March 24, 2009, the Veteran's left knee disability has not been productive of limitation of extension. 5. From February 16, 2009, the Veteran's left knee disability has been productive of slight instability, but is not productive of moderate instability. CONCLUSIONS OF LAW 1. The evaluation of 10 percent for left knee cartilage, semilunar, removal of, symptomatic is reinstated for the time period of December 22, 2008 to March 24, 2009 and continued thereafter. The criteria for an evaluation in excess of 10 percent for left knee cartilage, semilunar, removal of, symptomatic are not met for the duration of the appeal. 38 U.S.C. § 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 5259 (2017). 2. The criteria for an evaluation in excess of 20 percent disability for left knee limitation of extension from December 22, 2008 to March 24, 2009, are not met. 38 U.S.C. § 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261 (2017). 3. The criteria for an evaluation in excess of 10 percent evaluation for left knee instability from February 16, 2009, have not been met. 38 U.S.C. § 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102 , 4.40, 4.45, 4.59, 4.71a, DC 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist A November 2009 letter provided proper notice with regard to the increased rating claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA medical records are in the Veteran's claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2016). In this case, several VA examinations were conducted, as explained below. These examinations also addressed functional limitations with regard to employability. The Board finds the examination reports, when considered together, to be thorough and complete and sufficient upon which to base a decision with regard to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disability under the appropriate diagnostic criteria. The Board notes that the August 2017 VA examination complies with Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016) (holding that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). 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). Rating Criteria for the Knee Under Diagnostic Code (DC) 5257, other knee impairment of recurrent subluxation or lateral instability, is rated as: severe (30 percent), moderate (20 percent), and slight (10 percent). Under DC 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint is 20 percent. Under DC 5259, cartilage, semilunar, removal of, symptomatic is 10 percent. Under DC 5260, limitation of flexion of the knee is rated as: flexion limited to 15 degrees, (30 percent), flexion limited to 30 degrees, (20 percent), flexion limited to 45 degrees, (10 percent), flexion limited to 60 degrees, (0 percent). Under DC 5261, limitation of extension of the knee is rated as: extension limited to 45 degrees, (50 percent), extension limited to 30 degrees, (40 percent), extension limited to 20 degrees, (30 percent), extension limited to 15 degrees, (20 percent), extension limited to 10 degrees, (10 percent), extension limited to 5 degrees, (0 percent). 38 C.F.R. § 4.71. By way of reference, normal range of motion for the knee is defined by VA as being from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). Additional ratings are available for ankylosis (DC 5256), tibia and fibula impairment (DC 5262), and genu recurvatum, traumatic (5263). There is no evidence that these rating are implicated regarding the Veteran's left knee disability on appeal. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003. Under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes. "Functional loss" may occur as a result of weakness or pain on motion. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5260 and 5261. Facts Evidence prior to May 2014 Board decision Service connection was established in 1970 for the Veteran's left knee disability, characterized as medial meniscectomy, left knee, with minimal osteoarthritis, under 38 C.F.R. § 4.71a, DC 5259, which provides a 10 percent rating. No subsequent claims for increased benefits were received until August 2009, when the Veteran submitted the claim that has become the subject of this appeal. In connection with that claim, private treatment records dated in 2008 and 2009 were associated with the claims file. These showed that while at work as a letter carrier, in December 2008, the Veteran fell while descending stairs twisting his left knee. He reported to an emergency room where X-rays revealed no fractures, but showed a large effusion to the left knee. At this time, extension was noted as approximately 90 percent of normal (i.e., a 14 degree loss) and flexion was noted as approximately 75 percent of normal, (i.e., a 35 degree loss or to 105 degrees) secondary to effusion. The Veteran was prescribed physical therapy. His January 6, 2009 private treatment record from Bronson Methodist Hospital showed flexion of 116 degrees and an extension loss of 17 degrees. As the Veteran continued physical therapy, his extension improved. A February 16, 2009 private treatment record from HCMW Orthopaedic Surgery and Sports Medicine noted a probable lateral patellar instability event. A March 25, 2009 private treatment record from Bronson Rehabilitation Services showed flexion of 89 degrees and an extension loss of 11 degrees. An April 21, 2009 private treatment record from Bronson Rehabilitation Services showed no limitation of extension. The Veteran was afforded a VA examination in December 2009. The Veteran reported that his left knee hurts when he does extensive walking and standing and that he is unable to climb stairs. The examiner noted symptoms that included left knee giving way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. The examiner wrote that the Veteran was able to stand up to one hour and able to walk more than 1/4 mile but less than one mile, and that the Veteran had an antalgic gait, knee crepitation, clicks or snaps, and grinding. Left knee range of motion was from 0 to 120 degrees, with objective evidence of pain with active motion. Right knee range of motion was normal. There was no objective evidence of pain following repetitive motion, no additional limitations after three repetitions of range of motion, and no joint ankylosis. X-rays showed degenerative changes of the left knee. The occupational impact was decreased mobility and the Veteran has to rest for 15 minutes after 1 hour of standing and walking. In his May 2010 Notice of Disagreement, the Veteran reported that he could not climb or go down stairs normally and could not walk without a limp. He further reported that he could not walk or stand for any length of time without experiencing pain. In his July 2011 VA Form 9, the Veteran stated that his knee felt weak and hurt with each step, often giving way. The Veteran submitted additional private treatment records from 2011, including an MRI showing severe arthritis of the knee. The Veteran was afforded an additional VA examination in February 2012. The Veteran stated his left knee hurts continuously whenever he moves it whether it bears weight or not. The examiner noted that the Veteran had flare-ups which impacted the function of his knee and/or lower leg. The examiner did not note the frequency or nature of these flare-ups except for noting that the Veteran tries to suffer through the pain and needs to sit and rest as a result. Right knee flexion was 130 degrees with evidence of painful motion at 130 degrees. There was no limitation on extension. Left knee flexion was 110 degrees, with objective evidence of painful motion at 105 degrees. There was no limitation on extension. The Veteran was able to perform three repetitions, which reduced his left knee range of motion to 105 degrees of flexion. Extension still was not limited. Right knee range of motion was unchanged. The examiner noted functional loss as less movement than normal, excess fatigability, and pain on movement. There was tenderness or pain to palpation on the left side. Joint stability tests were normal and no recurrent patellar subluxation/ dislocation was noted. Muscle strength was normal. The examiner noted no symptoms of a meniscus (semilunar cartilage) condition or residual signs and/or symptoms due to his meniscectomy. The Veteran reported wearing an elastic knee brace occasionally, depending on pain. The Veteran was noted to have a mild antalgic gait. May 2014 Board decision and JMR Prior to the May 2014 Board decision, the Veteran's left knee disability was rated under the provision of 38 C.F.R. § 4.71a, DC 5259, at a 10 percent rating. The May 2014 Board decision assigned a 20 percent rating for limitation of extension for the period from December 22, 2008 to March 24, 2009; continued the 10 percent rating thereafter that has been in effect since the 1970's; and assigned a separate 10 percent rating for instability, effective from February 16, 2009. As reasoning, the Board noted that the evidence supports an award of a 20 percent disability rating for limitation of extension from December 22, 2008 to March 24, 2009, during which the measured loss most nearly approximated that level of impairment as described under DC 5261. After that, the extension loss improved to only an 11 degree loss of extension and then full extension, where it has remained. The Board further noted that the Veteran has consistently complained of instability, and while recent formal examinations have failed to disclose joint instability, resolving reasonable doubt in favor of the Veteran with respect to the existence of that symptom since reference to it was made in a February 16, 2009 record, a separate 10 percent evaluation, and no more, for a slight impairment from that date is justified. In June 2015, the Court's JMR vacated and remanded the May 2014 Board decision to the extent that it denied 1) entitlement to a rating in excess of 20 percent for limitation of extension of a left knee disability from December 22, 2008, to March 24, 2009; 2) a rating in excess of 10 percent for limitation of motion of the left knee or symptomatic removal of semilunar cartilage from March 25, 2009; and 3) a separate rating in excess of 10 percent for lateral instability of the left knee from February 16, 2009. The Court did not disturb the Board's 20 percent grant for limitation of extension of the left knee from December 22, 2008, to March 24, 2009 and separate grant of 10 percent for lateral instability of the left knee from February 16, 2009. As reasoning, the Court indicated that under 38 C.F.R. § 3.951(b), "[a] disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud." The Court ruled that by effectively changing the 10 percent rating under DC 5259, which had been in place since 1970, to a 20 percent rating under a different diagnostic code, DC 5261, from December 22, 2008 to March 24, 2009, the Board violated 38 C.F.R. § 3.951(b). The Court noted that in Murray v. Shinseki, 24 Vet. App. 420, 424 (2011), the Court held that changing the assigned DC for a protected rating effectively reduces the protected rating under the previously assigned DC to 0 percent and violates the provisions of 38 C.F.R. § 3.951(b). In addition, the JMR specified that the Board, upon remand, should consider whether the February 2012 VA examination adequately addressed flare-ups under DeLuca v. Brown, 8 Vet.App. 202 (1995). The Court noted that during the February 2012 VA examination, the Veteran complained of flare-ups, however, the examiner did not note the frequency of these flare-ups, whether there was loss of motion during a flare-up, or whether it was possible to portray any such loss in terms of degrees of motion. In addition, the examiner failed to indicate whether the functional impairment noted included functional impairment due to flare-ups. Finally, the JMR instructed the Board to discuss lay and medical evidence relating to functional loss. In particular, the Court noted the evidence that in his May 2010 Notice of Disagreement, the Veteran reported that he could not walk or stand for any length of time without experiencing pain. In his July 2011 VA Form 9, the Veteran stated that his left knee is painful with every step and causes him to walk with a limp. Evidence after May 2014 Board decision The Veteran appeared for a VA examination in November 2015. Knee osteoarthritis was noted in both knees. The Veteran reported his left knee has worsened, the knee is going out, and he has been using a cane. The Veteran states he has pain all the time and pain level is about 2/10, in the bilateral knees. He reported severe pain with walking and standing. The knee starts acting out after walking for about half a mile. He reported weakness in his left extremity as his left leg gives out. The Veteran reported flare-up as severe pain, with pain level of about 9/10. During these episodes he has to take a break for a while and keep off his knee. This usually happens about once or twice a month. Regarding functional impairment, the Veteran reported decreased movement or inability to use the affected, left lower extremity. Right knee range of motion was normal. Left knee flexion was to 110 degrees and extension was 0. Pain on flexion and extension was noted, causing functional loss. There was evidence of pain on weight bearing. The anterior knee was tender to palpation and there was objective evidence of crepitus. There was no additional functional loss or limitation of range of motion after three repetitions. Neither knee was examined over repetitive use over time or during a flare-up, therefore the examiner found it speculative to opine as to effects of repetitive use over time or during a flare-up. The left knee had some reduction in muscle strength and muscle atrophy. Diagnostic testing as to instability was done and no instability was found for either knee. It was noted that pain and decreased range of motion are residuals of a meniscus condition. The Veteran was noted to regularly use a brace. In regard to functional impairment, the examiner noted that the Veteran states he has difficulty standing, walking, and lifting as these tasks aggravate his knee pain. Climbing stairs is also difficult. By April 2016 Appellate Brief, the Veteran stated that his left knee flare-ups manifest with severe cramping, immobility and unexplained locking, with pain. The Veteran appeared for a VA examination in August 2017. The Veteran reported that left knee pain, weakness and occasional stiffness had progressed slowly. He described flare-ups as "I feel more pain on standing and walking for a long time." Functional impairment was described in that the Veteran had to sit down and rest until the pain abated. Right knee range of motion initially and after three repetitions was normal with no pain noted; range of motion after repetitive use over time was expected to be normal. Initial range of motion of the left knee was 90 degrees in flexion and 0 degrees in extension. Pain was noted in both planes. The Veteran was reported as limping. There was no tenderness or pain on palpation or crepitus, but pain was noted on weight bearing. As to the left knee, after three repetitions, there was no additional limitation. The Veteran was not examined immediately after repetitive use over time. However, the examiner expected repetitive use over time to not cause additional limitation on range of motion; while pain and weakness were expected by the examiner to significantly limit functional ability. While the left knee was not examined during a flare-up, the examiner expected no additional limitation on range of motion; however, pain and fatigue were expected by the examiner to significantly limit functional ability. The examiner found left side history of slight lateral instability. There was no instability on the right side. The examiner performed left knee joint stability testing; no instability was found. The examiner noted that the instability may be intermittent, not recognized during the evaluation. The examiner noted that left knee pain is a residual of the Veteran's in-service meniscectomy. The Veteran was noted to constantly use a cane to prevent himself from falling and occasionally use a brace. As well, in regard to functional impact, he was noted to limp. For both knees, passive range of motion was the same as active. There was no objective evidence of pain on the right side and for the left side objective evidence of pain was the same as for active range of motion. The examiner concluded that the Veteran's left knee disability has progressed over the last several years. The examiner explained that with damaged ligament, including cruciate ligament in this case, instability and limitation of movement is expected. By December 2017 statement, the Veteran stated that his left knee causes him continuous pain, he must use a cane to walk any distance because the knee may collapse, and that he has fallen a number of times. Analysis As noted by the June 2015 JMR, the Veteran's 10 percent rating for medial meniscectomy under DC 5259 has been in place since 1970. Upon review of the evidence, there no basis to disturb this rating. The evidence supports that the residuals of the medial meniscectomy have consistently resulted in symptoms of left knee pain and limited motion, as supported by the findings of the November 2015 and August 2017 VA examinations. As such, this rating continues undisturbed and the 10 percent rating under DC 5259 for the period from December 22, 2008 to March 24, 2009, which was removed by the May 2014 Board decision as ruled by the June 2015 JMR, is reinstated. There is no indication of dislocated semilunar cartilage. The August 2017 VA examination for example identifies prior meniscus condition but no dislocation. Therefore, the higher rating of 20 percent under DC 5258 is not appropriate. There is no evidence for a higher rating under DC 5261 for limitation of extension, other than already assigned. The May 2014 Board remand awarded 20 percent for extension under DC 5261, for the period of December 22, 2008 to March 24, 2009 only. As noted by that decision, a December 2008 report in part noted that after a fall extension was approximately 90 percent of normal (i.e., a 14 degree loss). The evidence supports that after the Veteran's fall, he continued to improve his extension with physical therapy. A January 6, 2009 private treatment record noted extension loss of 17 degrees. A March 25, 2009 private treatment record noted an extension loss of 11 degrees. An April 21, 2009 private treatment record from Bronson Rehabilitation Services showed no limitation of extension. There is no evidence for this period of time for a higher rating than 20 percent for extension. Under DC 5261, there is no evidence of extension limited to 20 degrees, for a 30 percent rating, or worse. For the remainder of the appeals period, the evidence supports that the Veteran's left knee extension was not limited, therefore, it is appropriate that no rating is assigned for limitation of extension outside of the time period of December 22, 2008 to March 24, 2009. Throughout the appeals period, the evidence does not show the Veteran's left knee was productive of limitation of flexion that ever approximated even a compensable evaluation as to warrant a rating under DC 5260. There is insufficient evidence for a higher rating under DC 5257 for knee impairment of recurrent subluxation or lateral instability, other than already assigned. The May 2014 Board decision granted a separate 10 percent rating from February 16, 2009, for slight instability, the date that the Veteran's first symptoms of instability were recorded. The Board noted that while the Veteran has consistently complained of instability, recent formal examinations have failed to disclose joint instability, and the 10 percent rating was made in resolving reasonable doubt in favor of the Veteran. Additional evidence supports the same, that while the Veteran complains of instability, diagnostic testing, such as that done during the November 2015 and August 2017 VA examinations, revealed no signs of instability. In November 2015, August 2017 and December 2017, the Veteran stressed that he must use a cane to prevent himself from falling. The August 2017 VA examiner noted that the instability may be intermittent, explaining why it was not recognized during the examination. The Board finds that no higher rating than 10 percent is warranted for slight instability, as there is insufficient evidence to support the existence of moderate instability for a 20 percent rating. The Board credits and gives probative weight to the lay statements that the Veteran has reported falling and using a cane to prevent falls. A higher rating for moderate instability is not warranted as the evidence supports that the instability is intermittent and the competent medical evidence of record does not contain diagnostic findings of instability. The Board finds that a 10 percent rating for slight instability appropriately contemplates the Veteran's lay statements of reporting falling and using a cane to prevent falling. The Board acknowledges that the record supports arthritis in the left knee, with symptoms of pain and limited motion. However, as the Veteran is receiving 10 percent under DC 5259 for the duration of the appeal for the same symptoms, an additional rating would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board accepts that the Veteran reports weakness, stiffness, and painful motion in the left knee with limitations on lifting, climbing stairs, standing and walking. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion or the functional equivalent of limitation of flexion required to warrant the next higher evaluation pendency of the appeal. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's left knee disability. In regard to flare-ups, the Board acknowledges that the Veteran has reported that his left knee disability manifests with flare-ups. The Board notes that the Court has instructed that VA examiners when evaluating certain musculoskeletal conditions must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Since the June 2015 JMR, which instructed that VA conduct adequate evidentiary development of flare-ups, November 2015 and August 2017 VA examinations associated with the claims file are adequate in that they contain this information. Additional lay statements as well capture the nature and severity of the flare-ups. During the November 2015 VA examination, the Veteran reported flare-ups as severe pain, 9/10 severity; this usually happens about once or twice a month. Neither knee was examined during a flare-up, therefore the examiner found it speculative to opine as to effects during a flare-up. By April 2016 Appellate Brief, the Veteran stated that his left knee flare-ups manifest with severe cramping, immobility and unexplained locking, with pain. During the August 2017 VA examination, the Veteran described flare-ups as "I feel more pain on standing and walking for a long time." Functional impairment was recorded as having to sit down and rest until the pain abated. The Veteran was not examined immediately during a flare-up. However, the examiner expected a flare-up to not cause additional limitation on range of motion; while pain and weakness were expected by the examiner to significantly limit functional ability. The Board finds that no additional rating is warranted on the basis of flare-ups. In making this decision, the Board most heavily weighs the August 2017 examiner's opinion, made with examination of the Veteran, consideration of lay statements, and review of the claims file, that the flare-ups do not cause additional limitation on range of motion. The Board acknowledges that the Veteran's left knee disability, with flare-ups, cause symptoms such as weakness and locking. These symptoms are contemplated in the Veteran's current rating for left knee disability and higher rating is not warranted. (CONTINUED ON NEXT PAGE) ORDER A 10 percent rating for symptomatic removal of semilunar cartilage is reinstated for the time period of December 22, 2008, to March 24, 2009 and continued thereafter. An increased rating higher than 10 percent for symptomatic removal of semilunar cartilage for the duration of the appeal is denied. An increased rating higher than 20 percent for limitation of extension from December 22, 2008, to March 24, 2009 is denied. An increased rating higher than 10 percent for lateral instability from February 16, 2009 is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs