Citation Nr: 19155482 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 11-26 456A DATE: July 18, 2019 ORDER Entitlement to a rating in excess of 10 percent prior to May 20, 2009 for a low back disability is denied. Entitlement to a rating in excess of 20 percent from May 20, 2009 to February 8, 2016 for a low back disability is denied. Entitlement to a rating in excess of 40 percent beginning February 9, 2016 for a low back disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability prior to November 29, 2017 is denied. Entitlement to a rating in excess of 30 percent for a right knee disability from November 29, 2017 is denied. Entitlement to a separate 20 percent, but no higher, rating prior to and from November 29, 2017 for semilunar cartilage dislocation with frequent episodes of locking, pain, and effusion into the joint of the right knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a separate 10 percent, but no higher, rating prior to and from November 29, 2017 for slight recurrent subluxation or lateral instability of the right knee is granted, subject to the regulations governing the payment of monetary awards.   FINDINGS OF FACT 1. Prior to May 20, 2009, the Veteran’s low back disability was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and a combined range of motion greater than 120 degrees but not greater than 235 degrees. 2. From May 20, 2009 to February 8, 2016, the Veteran’s low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. 3. From February 9, 2016, the Veteran’s low back disability was manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, with no ankylosis, and with intervertebral disc syndrome but without incapacitating episodes. 4. Prior to November 29, 2017, the Veteran’s right knee disability was manifested by limitation of extension to no more than 10 degrees. 5. From November 29, 2017, the Veteran’s right knee disability was manifested by extension limited to no more than 20 degrees. 6. Prior to and from November 29, 2017, the Veteran’s right knee disability was manifested by a meniscus (semilunar cartilage) condition with frequent episodes of joint locking, pain, and effusion. 7. Prior to and from November 29, 2017, the Veteran’s right knee disability was manifested by slight recurrent subluxation or lateral instability.   CONCLUSIONS OF LAW 1. Prior to May 20, 2009, the criteria for rating in excess of 10 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. From May 20, 2009 to February 8, 2016, the criteria for a rating in excess of 20 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5242. 3. From February 9, 2016, the criteria for a rating in excess of 40 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5242, 5243. 4. Prior to November 29, 2017, the criteria for a rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5260, 5261. 5. From November 29, 2017, the criteria for a rating in excess of 30 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5260, 5261. 6. Prior to and from November 29, 2017, the criteria for a separate 20 percent, but no higher, rating for a meniscus (semilunar cartilage) condition with frequent episodes of joint locking, pain, and effusion of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5258. 7. Prior to and from November 29, 2017, the criteria for a separate 10 percent, but no higher, rating for recurrent subluxation and lateral instability of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to June 1982. This matter is on appeal from January 2008 and June 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015 and June 2017, the Board of Veterans’ Appeals (Board) remanded the issues on appeal for further development. The Veteran requested a hearing before the Board by live videoconference on an October 2011 VA Form 9, Appeal to Board of Veterans’ Appeals. He also requested a Board hearing at a local VA office on a September 2014 VA Form 9. In April 2015, VA mailed a letter to the Veteran notifying him that a hearing had been scheduled in May 2015, and this letter contained a form for the Veteran to request a rescheduling. The Veteran did not request to reschedule and failed to appear at the hearing. There is no indication the Veteran did not receive the letter notifying him of the hearing date. On an October 2018 VA Form 9, the Veteran, through his representative, again requested a hearing by live videoconference at a local VA office. As the Veteran failed to report for his prior hearing and did not within 15 days of the originally scheduled hearing date submit a motion explaining why he failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted, his hearing request is considered withdrawn and he is not entitled to submit a new request for a hearing. As such, the Board is denying his hearing request. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Low Back Disability The Veteran contends that he is entitled to a rating in excess of 10 percent prior to May 20, 2009, in excess of 20 percent from May 20, 2009 to February 8, 2016, and in excess of 40 percent from February 9, 2016, for his low back disability. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Under the Formula for Rating IVDS, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.   Prior to May 20, 2009 The Veteran’s low back disability is rated as 10 percent disabling prior to May 20, 2009. The Board finds that a rating in excess of 10 percent is not warranted prior to May 20, 2009. Turning to the evidence of record relevant to this period, the Veteran attended a VA examination in October 2007 where range of motion testing showed flexion to 95 degrees and extension to 30 degrees. He had right and left lateral flexion to 40 degrees. Rotation was 35 degrees to the right and left. The VA examiner noted no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination. The Veteran reported no pain at the mid to left side of the low back. He reported pain at 1/10 to 8/10 while lifting or prolonged sitting that occasionally radiates to the toes on the right foot, which lasts about 10 to 15 minutes. He indicated that these flareups occurred about 10 times in the last 20 years. An October 2008 MRI reflects minimal retrolisthesis of L5 over S1 with unremarkable vertebral body heights, bone marrow signal intensities, and conus medullaris whose tip is at the mid L1 level. Further, the MRI reflects mild disc space narrowing of L4-L5 and L5-S1 with disc desiccation of L5-S1, and the T11-T12 to the L1-L3 levels are unremarkable. In December 2008, the Veteran attended an additional VA examination for an evaluation of his low back disability. Range of motion testing showed that the Veteran had flexion to 90 degrees and extension to 30 degrees. He had left and right lateral flexion to 30 degrees. He had left and right lateral rotation to 30 degrees. The examiner noted painful motion of 20 to 30 degrees in left lateral rotation and no pain in right lateral rotation. The examiner indicated that the Veteran was wearing a back brace for the spine and indicated it relieved some of his pain. The VA examiner stated that the Veteran had mild weakness of the lumbosacral spine and mild lack of endurance with longer walking. Further, the examiner stated that the Veteran had a positive MRI for herniated disc at the level of L4-5 left side that was moderate in character. The Veteran reported mild pain in the left lumbosacral spine. Muscle power of the paravertebral muscles was normal; palpation revealed mild muscle spasm of the left lumbar spine compared to the right. The evidence reflects that forward flexion was greater than 60 degrees and the combined range of motion was greater than 120 degrees prior to May 20, 2009. During this period, objective evidence showed at most forward flexion limited to 90 degrees and a combined range of motion of 230 degrees. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board acknowledges the Veteran’s reports of occasional pain with lifting or prolonged sitting and evidence of weakness. Even when considering these additional factors, the evidence shows the Veteran’s range of motion has been reduced throughout this period to a level that most nearly approximates forward flexion greater than 60 degrees and combined range of motion greater than 120 degrees. Therefore, with consideration of the provisions of §§ 4.40 and 4.45, the Veteran’s thoracolumbar disability most nearly approximates the criteria for the assigned 10 percent rating for this period. Additionally, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy associated with his lumbar spine disability. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability prior to May 20, 2009. The Board has also considered whether the appellant is entitled to a higher rating under the rating criteria for IVDS. However, the evidence does not show that the Veteran had IVDS or that he experienced any incapacitating episodes. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, a rating in excess of 10 percent is not warranted prior to May 20, 2009. May 20, 2009 to February 8, 2016 From May 20, 2009 to February 8, 2016, the Veteran had a 20 percent rating for his low back disability under Diagnostic Code 5242. The Board finds that a rating in excess of 20 percent is not warranted for this period. Turning to the evidence of record relevant to this period, May 20, 2009 VA treatment records note that the Veteran underwent musculoskeletal range of motion testing. Range of motion testing showed that the Veteran had forward flexion without pain to “approximately 30 degrees.” The clinician noted that straight leg raising produced low back pain on the right and radicular pain down the left leg at approximately 40 degrees on the left. Deep tendon reflexes were normal in the knees and ankles. May 2011 private treatment records note that the Veteran underwent a transforaminal epidural steroid injection. July 2011 medical records obtained from the Veteran’s Social Security records show that the Veteran had forward flexion to 40 degrees and extension to 5 degrees. He had left and right lateral flexion to 5 degrees. Reflexes, power, tone and sensation were all normal. A March 2012 VA examination shows that range of motion testing revealed the Veteran had forward flexion to 90 degrees and extension to 30 degrees. He had left and right lateral flexion to 30 degrees. He had left and right lateral rotation to 30 degrees. The examiner noted mild soreness with right and left lateral bending to 15 degrees and left and right lateral rotation to 15 degrees. There was no change noted with repetitive use testing. The examiner indicated the Veteran had painful motion and mild to moderate weakness and lack of endurance. Further, the examiner noted straight leg raising was negative on the left and right and sensation to touch on the left and right leg were both normal. He noted that there was no severe pain or radiating pain to the bilateral lower extremities and no positive signs of a dorsal nerve swelling of the dorsal nerve roots of the lumbosacral spine. A November 2012 VA examination reflected range of motion testing of lumbar flexion to 75 percent and lumbar extension to 75 percent. May 2014 VA treatment records show that the Veteran reported lower back pain that was “sore all over,” that he would walk one or two blocks, at most, and had been using TENS and ice. August 2014 Social Security records show that the Veteran reported he was not able to bend down to tie his shoes or put his pants on. Further, the Veteran reported that getting in and out of bed and vehicles was very painful. An October 2014 lumbar spine MRI reflects L3/4 mild diffuse disc bulging with superimposed left foraminal zone/far lateral disc protrusion causing slight encroachment upon the inferior left neural foramen and partial effacement of the left subarticular recess. There was no significant right foraminal stenosis. At the L4/5 level, there was diffuse disc bulging with a small superimposed left subarticular/foraminal/far lateral zone disc protrusion and facet degenerative changes causing moderate left foraminal narrowing and partial effacement of the left subarticular recess. At the L5/S1 level, a diffuse disc osteophyte complex was seen with a small superimposed central disc herniation and left foraminal/far lateral zone disc extrusion causing severe left foraminal stenosis. There was no significant central canal stenosis, and mild right foraminal narrowing was seen. June 2015 VA treatment records show that lumbar injection did not provide significant relief. Further, the Veteran was referred to pool and gym therapy for his low back disability. July 2015 VA treatment records note the Veteran experienced pain. The treating provider directed the Veteran not to perform any overhead lifting, to avoid lifting more than 15 to 20 pounds or excessive cervical or lumbar torsion, and to avoid bending or heavy pushing or pulling with high impact activities. Even considering the report of difficulty with movement, the evidence shows that the Veteran’s thoracolumbar range of motion has been reduced throughout this period to a level that most nearly approximates forward flexion greater than 30 degrees, but not greater than 60 degrees. The Board acknowledges the May 20, 2009 VA record that indicated the Veteran had forward flexion to “approximately 30 degrees.” The use of the term “approximately” makes it unclear regarding what the exact degree of limitation of flexion was. Moreover, in looking at the other evidence of record during the period from May 20, 2009 to February 8, 2016, there are no other flexion findings that are near to 30 degrees, with the closest finding during the period being limited to 40 degrees. Even when considering the reported functional loss, the Veteran’s disability picture does not more nearly approximate forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Therefore, the preponderance of the evidence is against a finding that a higher 40 percent rating is warranted during this period based on the single imprecise notation regarding the Veteran’s range of flexion on May 20, 2009. Regarding neurological impairment, as noted above, the Veteran has already been granted service connection for left lower extremity radiculopathy associated with his lumbar spine disability. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability from May 20, 2009 to February 8, 2016. The evidence of record relevant to this period does not show that the Veteran had IVDS requiring bed rest prescribed by a physician and treatment by a physician. Therefore, the evidence does not more nearly approximate the criteria for a higher 40 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As such, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s low back disability from May 20, 2009 to February 8, 2016. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Beginning February 9, 2016 Currently, the Veteran has been assigned a 40 percent rating, effective February 9, 2016. The Board finds that a rating in excess of 40 percent is not warranted. In addressing the period beginning February 9, 2016, the Board notes that the 40 percent evaluation now assigned during this period is the maximum evaluation based on limitation of motion. Ankylosis must be shown to obtain a higher rating. Turning to the evidence of record, a February 9, 2016 VA examination shows that the Veteran reported constant pain on the left side of his low back with all motion, with a sharp stinging to the left leg and buttock. He stated that he does not bend to pick anything up. Range of motion testing showed the Veteran had forward flexion to 40 degrees and extension to 20 degrees. He had left and right lateral flexion to 20 degrees. He had left and right lateral rotation to 20 degrees. The examiner noted functional loss including pain and lack of endurance. Range of motion testing reflected pain at forward flexion to 10 degrees and extension to 0 degrees. He had pain from left and right lateral flexion to 10 degrees. He had pain from left and right lateral rotation to 10 degrees. Further, the examiner noted that the Veteran had IVDS but no episodes of acute signs and symptoms requiring bed rest in the last 12 months. Muscle strength, deep tendon reflexes at the knee, and sensory testing was normal in the right lower extremity. Deep tendon reflexes at the ankle were hypoactive. The examiner indicated there was no radiculopathy in the right lower extremity and no other neurologic abnormalities. The Veteran attended an additional VA examination in November 2017 where range of motion testing showed the Veteran had forward flexion to 45 degrees and extension to 20 degrees. He had left and right lateral flexion to 20 degrees. He had left and right lateral rotation to 20 degrees. The Veteran had functional loss from pain, fatigue, weakness, and lack of endurance. Range of motion testing reflected pain at forward flexion to 25 degrees and extension to 10 degrees. He had left and right lateral flexion to 10 degrees. He had left and right lateral rotation to 10 degrees. The Veteran had no ankylosis. Further, the examiner noted that the Veteran had IVDS but no episodes of acute signs and symptoms requiring bed rest in the last 12 months. Muscle strength, reflex, and sensory testing on the right lower extremity was normal and the examiner indicated there was no radiculopathy in the right lower extremity and no other neurologic abnormalities. November 2017 X-ray results reflect minimal L4-L5 and L5-S1 spondylolisthesis, spondylosis, and facet arthropathy. Bending view X-rays of cervical and lumbar spine were negative for instability. A preponderance of the evidence is against a finding that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine at any point during this period. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board acknowledges the Veteran’s reports of pain, loss of motion, and functional loss as a result of his low back disability. However, the 40 percent evaluation assigned is the maximum evaluation based on limitation of motion. In order to obtain a higher rating, ankylosis must be shown. Therefore, further analysis of these provisions is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). As previously noted, for neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy associated with his lumbar spine disability. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability from February 9, 2016. The Board has considered whether the appellant is entitled to a higher rating under the rating criteria for IVDS. The evidence shows the Veteran has IVDS as both the February 2016 and November 2017 VA examiner noted the Veteran has IVDS; however, the evidence does not show that the Veteran had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in any 12-month period beginning February 9, 2016. Therefore, a rating in excess of 40 percent for the lumbar spine disability is not warranted under the rating criteria for IVDS. In sum, the Board finds that a preponderance of the evidence is against a finding that a rating in excess of 40 percent is warranted beginning February 9, 2016 for the Veteran’s low back disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. As such, the benefit of the doubt doctrine does not apply, and the claim is denied. 2. Right Knee Disability The Veteran contends that he is entitled to higher ratings for his right knee disability. During the relevant appeal period, the Veteran is rated under DC 5261 at 10 percent prior to November 29, 2017 and 30 percent thereafter. The Veteran was assigned a temporary total rating from July 15, 2011 to September 1, 2011. This period is not before the Board because the maximum schedular rating has been assigned; therefore, it will not be further discussed. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee 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 is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is available where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Id. Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under DC 5260 or 5261 and for instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5258, a separate 20 percent rating may be assigned for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a separate 10 percent rating may be assigned for the removal of cartilage, semilunar, that is symptomatic. Id. Prior to November 29, 2017 During the relevant appeal period, the Veteran attended two VA examinations for his right knee. At a March 2012 VA examination, the Veteran noted swelling and pain in the right knee medial compartment. Physical examination revealed no swelling and no edema. The Veteran was ambulating with a cane and right knee brace. The Veteran self-reported full range of motion. The examiner indicated range of motion on objective testing was normal, but reported flexion to 140 degrees and extension to 20 degrees. Repetitive use testing was also noted to be normal. The examiner noted crepitus of the patellofemoral joint. Palpation of the medial and lateral compartment was negative, effusion was negative, and ligaments were stable. The examiner provided a diagnosis of mild to moderate degenerative arthritis of the right knee medial compartment and patellofemoral compartment, and mild to moderate chondromalacia of the right patellofemoral joint. The Veteran was noted as having a mild to moderate weakness and lack of endurance of the right knee due to the first diagnosis. In explaining these findings, the examiner again noted the Veteran did not have limited or painful motion. The examiner did not note ankylosis. January 2013 VA treatment records show that the Veteran reported that he felt as though his right knee was going to “give out at any moment.” He reported an incident in which he was walking when his knee gave out on him and created a light “snap” followed by severe pain. Social Security records from August 2014 show that the Veteran had no difficulty in standing, no difficulty sitting, and minimal to moderate difficulty lifting and carrying. Range of motion testing showed flexion to 150 degrees and extension to 0 degrees. There was no redness, warmth, or joint effusion. The treating provider noted the Veteran wore a soft brace on the right knee. February 2015 VA treatment records note that the Veteran reported that he continued to have a knee sensation of locking and giving out. At a February 2016 VA examination, the examiner noted a right knee meniscal tear and knee joint osteoarthritis. The Veteran reported swelling and pain to the right knee. He reported wearing a right knee brace that moderately helped his knee. He reported the knee gave out weekly and that his knee was swollen all the time. He also reported functional loss from constant swelling and painful motion. During range of motion testing, the Veteran had full range of motion in flexion and extension. The examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue with moderate parapatellar crepitus. There was no additional functional loss or loss of range of motion after repetitive use testing. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner performed joint stability testing and noted no anterior, posterior, medial, or lateral joint instability. The examiner noted a history of recurrent effusion. The examiner noted that the Veteran experienced frequent episodes of joint locking, pain, and effusion. In addition, the examiner described the Veteran as experiencing pain all the time, swelling with use, and locking and giving way on a regular basis. The examiner noted that the Veteran could not stand, sit, or walk for more than 10 minutes and could not do stairs, squat, or kneel. The examiner did not note ankylosis. The Veteran reported constantly using a brace and cane and regularly using a walker. The Board has considered whether the Veteran is entitled to a rating in excess of 20 percent for limitation of extension prior to November 29, 2017. The majority of the evidence during this period shows that the Veteran had full range of extension. The March 2012 VA examination noted extension of 20 degrees; however, the examiner also noted that all motion was normal right before indicating a 20-degree limitation and then later in the examination report again stated that there was no limitation of motion. When considering the report as a whole, in particular the multiple indications that the Veteran did not have limitation of extension coupled with subsequent evidence continuing to indicate full range of extension, the Board concludes that the 20-degree notation on the March 2012 examination was made in error, and that the Veteran did not have extension limited to 20 degrees at that time. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (finding that a VA examination report “must be read as a whole”). Even when considering reports of pain and other factors contributing to disability, the evidence prior to November 29, 2017 did not reflect that extension was limited to 15 degrees. Therefore, a rating in excess of 10 percent under DC 5261 is not warranted. Next, the Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of flexion. The Board finds that the evidence for this period shows full range of motion for flexion without pain. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 and acknowledges the manifestation causing an inability to stand, sit, or walk for more than 10 minutes and climbing stairs, squatting, or kneeling. However, even when considering the reported functional loss, the Veteran’s disability picture did not more nearly approximate flexion limited to 45 degrees. Therefore, a separate compensable rating under DC 5260 is not warranted. The Board next finds that the Veteran’s credible lay statements indicating weakness and instability coupled with his use of a brace and cane support a finding that he experiences recurrent subluxation or lateral instability. English v. Wilkie, 30 Vet. App. 347 (2018). The Board finds that the evidence does not support more than mild recurrent subluxation or lateral instability. Although the Veteran has reported that he feels his knee is going to give out there is no indication that it has given out. Additionally, objective testing during this period has not reflected any instability. Therefore, the Board concludes that a separate 10 percent, but no higher rating under DC 5257 is warranted. The Board finds that the Veteran’s right knee disability also meets the criteria for a separate 20 percent rating in DC 5258, as the Veteran is noted as having a meniscus (semilunar cartilage) condition with frequent episodes of joint locking, pain, and effusion. The February 2016 VA examination shows that the Veteran has had three arthroscopies with residuals including chronic swelling, locking, and pain; thus, the criteria of symptomatic removal of semilunar cartilage set forth in DC 5259 are satisfied. However, the signs and symptoms contemplated in these criteria are encompassed under DC 5258 explained above; therefore, assignment of a separate 10 percent rating under these criteria would be pyramiding and is not warranted. Finally, consideration of other DCs for rating a knee disability (5256, 5262, 5263) is inappropriate in this case as the Veteran’s bilateral knee disabilities do not include the pathology required in the criteria for those DCs (ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. In sum, the Board concludes that prior to November 29, 2017, a rating in excess of 10 percent for limitation of extension is not warranted. A separate rating of 20 percent under DC 5258 is warranted. In addition, a separate rating of 10 percent, but no higher, for slight instability is warranted under DC 5257.   Beginning November 29, 2017 As noted above, from November 29, 2017, the Veteran has been assigned a 30 percent rating under DC 5261 based on limitation of extension. At a November 29, 2017 VA examination, the Veteran reported that his right knee was giving way and that he could not count on it, and he ambulated with a cane due to his knee and back. He also reported swelling, giving way, locking while standing and difficulty going up and down stairs. Range of motion testing was normal with flexion to 140 degrees and extension to 0 degrees. There was pain noted on flexion and extension. The Veteran was able to perform repetitive use testing and the examiner indicated that pain, fatigue, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that during flare ups, pain, fatigue, weakness, and lack of endurance, would limit flexion to 120 degrees and extension to 20 degrees. The examiner noted atrophy of disuse and instability of station, with a circumference of 46 cm above the knee on the left side and 47 cm above the knee on the atrophied side. The examiner noted no history of recurrent subluxation or lateral instability, and anterior, posterior, medial, and lateral joint stability testing was normal. The examiner also noted the Veteran’s history of a meniscus (semilunar cartilage) condition with frequent episodes of joint locking, pain, and effusion. First, the Board finds that the evidence does not more nearly approximate limitation of extension to 30 degrees. The November 2017 VA examiner noted that extension was full on range of motion testing, but indicated that during flare ups extension would at most be limited to 20 degrees based on factors including fatigue and lack of endurance. This finding most nearly approximates the criteria for the assigned 30 percent rating, and already takes into consideration additional DeLuca factors and limitation of function during flare ups. Therefore, a rating in excess of 30 percent under DC 5261 is not warranted. Further, the Board finds that from November 29, 2017, the Veteran’s right knee disability continued to meet the criteria for a separate 20 percent rating in DC 5258, as Veteran is noted as having a meniscus (semilunar cartilage) condition with frequent episodes of joint locking, pain, and effusion. Additionally, the Board finds that from November 29, 2017, recurrent subluxation and lateral instability continued to be mild. Although the Veteran continued to report instability, feelings of giving out of the knee, and using a brace and cane, objective stability testing continued to be normal. Therefore, the Board concludes that the evidence reflects no more than mild lateral instability and recurrent subluxation under DC 5257. English v. Wilkie, 30 Vet. App. 347 (2018). Next, the Board has also considered whether a separate compensable rating is warranted for limitation of flexion. The Board acknowledges that pain was noted with flexion on November 2017 VA examination. Although pain is a factor to be considered, the Veteran is already receiving a separate 20 percent rating under DC 5258 based in part on pain in the knee joint. Therefore, the Board concludes that in this instance a separate 10 percent rating based on painful flexion is not warranted as such would constitute pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Moreover, as discussed above in this case, the symptoms contemplated in DC 5259 are not separate and distinct from the symptoms related to the separate rating for DC 5258 and therefore cannot be assigned. For this period, consideration of other Diagnostic Codes for rating a knee disability (5256, 5262, 5263) is inappropriate as the Veteran’s bilateral knee disabilities do not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a.   In sum, the Board finds that from November 29, 2017, a rating in excess of 30 percent under DC 5261 is not warranted. During this time period, the right knee disability continues to warrant a separate 20 percent rating under DC 5258 and a separate 10 percent, but no higher, rating under DC 5257. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel