Citation Nr: 20003133 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-27 453 DATE: January 14, 2020 ORDER The claim of entitlement to an evaluation in excess of 20 percent for a lumbosacral spine condition (hereinafter lumbar disability) is denied. The claim of entitlement to an evaluation in excess of 10 percent for a left knee condition is denied. The claim of entitlement to an evaluation in excess of 10 percent for a right knee condition is denied. The claim of entitlement to a 10 percent disability rating, but no higher, for left knee arthritis is granted. The claim of entitlement to a 10 percent disability rating, but no higher, for right knee arthritis is granted. FINDINGS OF FACT 1. During the period on appeal the Veteran’s lumbar disability picture manifested as 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; it was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. 2. During the period on appeal the Veteran’s disability picture manifested as slight recurrent subluxation or lateral instability of the left knee. 3. During the period on appeal the Veteran’s disability picture manifested as slight recurrent subluxation or lateral instability of the right knee. 4. During the period on appeal the Veteran’s disability picture manifested with left knee arthritis confirmed by x-ray evidence and involving two or more major joints or two or more minor joint groups. 5. During the period on appeal the Veteran’s disability picture manifested with right knee arthritis confirmed by x-ray evidence and involving two or more major joints or two or more minor joint groups. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an evaluation in excess of 20 percent for a lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5242 (2018). 2. The criteria to establish entitlement to an evaluation in excess of 10 percent for a left knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5257 (2018). 3. The criteria to establish entitlement to an evaluation in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5257 (2018). 4. The criteria to establish entitlement to an evaluation of 10 percent, but no higher, for left knee arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5003 (2018). 5. The criteria to establish entitlement to an evaluation of 10 percent, but no higher, for right knee arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5003 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1976 to June 1979 and February 1987 to May 1990. These matters are before the Board of Veteran’s Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that denied an increased rating for a lumbar disability, a left knee condition, and a right knee condition. The Board notes that the Veteran’s claims were remanded by the Board in July 2016 for complete Social Security Administration (SSA) records. The Veteran’s claims were remanded again in March 2018 for a new VA examination as the Veteran’s address changed during the appeal period and he did not appear for the December 2016 and January 2017 VA examinations. The Veteran was provided a final opportunity for a more recent VA examination in the March 2018 Board remand. The Board further notes that in March 2019 via phone, the Veteran indicated that he no longer wanted to pursue his claim and not schedule a VA examination. In April 2019, VA sent correspondence to the Veteran indicating how to withdraw his appeals and notifying him a withdrawal must be done in writing. At the present time no communication has been associated with the Veteran’s file indicating an intention to withdraw the Veteran’s claims, as such the claims are still before the Board. Finally, the Board will not address the issue of a total disability claim for individual unemployability (TDIU) as the Veteran was granted an award of TDIU as of January 19, 2011, which is before the Veteran’s present claims were filed. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2; and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2018). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As of the instant date the Veteran has provided no explanation for missing the examinations of December 2016 and January 2017. Good cause has not been shown for missing the scheduled VA examination. 38 C.F.R. § 3.655 (2018). When a veteran fails to report for an examination without good cause, the claim shall be decided in accordance with 38 C.F.R. § 3.655 (b) or (c). The Board notes, while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In sum, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Entitlement to an evaluation in excess of 20 percent for a lumbar disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his lumbar disability. Historically the Veteran was awarded service connection for his lumbar disability at 10 percent disabling, effective, October 1980. The Veteran was then on active duty and subsequently received 0 percent disabling, effective May 1990. This disability rating was increased to 20 percent disabling, effective March 2009. The Veteran’s lumbar condition which is currently rated at 10 percent, disabling is governed by the provisions of 38 C.F.R. § 4.71a Diagnostic Code 5242, which is rated under the general rating formula for diseases and injuries of the spine. The general rating formula indicates that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is warranted when there is 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 30 percent disability rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent disability rating is warranted when there is 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the 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. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability; 5235 vertebral fracture or dislocation, 5236 sacroiliac injury and weakness, 5237 lumbosacral or cervical strain, 5238 spinal stenosis, 5239 spondylolisthesis or segmental instability, 5240 ankylosing spondylitis, 5241 spinal fusion, 5242 degenerative arthritis of the spine (see also diagnostic code 5003), and 5243 intervertebral disc syndrome (IVDS). Evaluate IVDS (preoperatively or postoperatively) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS Based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. The Diagnostic Code (DC) for IVDS is not to be considered by the Board as the Veteran has not been diagnosed with IVDS at any time during the appeal period. See 38 C.F.R. § 4.71(a) DCs 5235 to 5243, Note (6). The Veteran received a VA examination in August 2011 for his lumbar disability. The Veteran was noted as saying his low back pain had worsened since the end of 2010, and the examiner noted the Veteran’s use of medications and his disability had gotten progressively worse. The Veteran’s pain was noted as a moderate constant achy pain with no flare-ups since there was daily pain reported. The examiner also noted that there was radiating pain to the right buttock area with the frequent use of a walking cane. The Veteran’s posture and head position were found to be normal with an antalgic gait noted. The Veteran was found to have no abnormal spinal curvatures, no ankylosis, no spasm, no atrophy, no guarding, but pain with motion and tenderness at the L5 level and paraspinal level. The Veteran was found to have a normal motor examination, normal muscle tone, normal sensory examination, and normal reflex examination. The Veteran’s range of motion (ROM) was measured with flexion at 0 to 45 degrees, extension 0 to 10 degrees, left lateral flexion at 0 to 15 degrees, left lateral rotation at 0 to 20 degrees, right lateral flexion at 0 to 20 degrees, and right lateral rotation at 0 to 25 degrees. The examiner noted that the Veteran’s passive ROM was the same as his active ROM and found that the ROM was less than normal due to pain. The Veteran’s additional limitation with repetitive motion was left blank and the examiner noted objective evidence of pain after repetitive motion but no additional limitations of ROM after repetitive motions. The examiner also noted no lumbar radiculopathy. The Board finds that the VA examination of August 2011 is competent and credible with significant probative weight. As the examination is the only competent medical opinion of record it is also the determining factor. The Veteran is already rated at 20 percent for his lumbar condition under the general rating for diseases and injuries of the spine. Therefore, for a higher rating of 40 percent to be assigned under the general rating formula for diseases and injuries of the spine (hereinafter the general rating formula) the evidence must show forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. (A 30 percent rating does not mention or address the thoracolumbar spine, but rather the cervical spine, and as such, will not be considered). Id. First, there is no evidence of ankylosis at any time during the pendency of this appeal – favorable or otherwise. Note (5) as indicated above, provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id. The Veteran has maintained a range of motion in his spine, and as such, has not suffered from fixation of a spinal segment. Therefore, a higher rating based on ankylosis cannot be established. Furthermore, in reviewing the Veteran’s medical treatment records and lay statements, it is clear that the Veteran has a disability picture that more closely approximates a rating of 20 percent under the general rating formula. ROM testing has consistently demonstrated that the Veteran was capable of forward flexion of the thoracolumbar spine in excess of 30 degrees as indicated in his August 2011 VA examination which showed a ROM measurement of forward flexion at 0 to 45 degrees. Therefore, the evidence demonstrates that the Veteran’s lumbar disability does not result in limitation of forward flexion to 30 degrees or less and does not meet the criteria for an evaluation in excess of 20 percent. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45. Accordingly, in the VA examination of the spine provided to the Veteran, there was no evidence of additional limitation of motion after repetitive movement. It was noted that the Veteran’s service-connected bilateral knee disability and his lumbar disability together resulted in a functional loss of an inability to continue working as of January 2011. Additionally, the Veteran reported an inability to lift, bend, to walk for more than 20 minutes, and to stand for more than 15 minutes. The record contains no evidence of forward flexion limited to 30 degrees or limitation of function as to such a degree as to warrant an evaluation in excess of 20 percent. As such, even when considering the Veteran’s functional loss due to symptoms such as pain, the evidence fails to demonstrate that a disability evaluation in excess of 20 percent is warranted for a lumbar condition at any time during the pendency of this claim. The Veteran’s VA treatment records were silent as to any indication of a more limited ROM than 30 degrees and were absent any diagnosis of ankylosis. The Board finds that a staged rating would not be appropriate as there is no evidence to suggest an increased rating during the pendency of the appeal. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for an evaluation in excess of 20 percent for a lumbar disability is not warranted. Entitlement to an evaluation in excess of 10 percent for a left knee condition See below. Entitlement to an evaluation in excess of 10 percent for a right knee condition The Veteran contends that he is entitled to an increased rating for his bilateral knee condition in excess of 10 percent disabling. The Veteran’s bilateral knee condition was rated under Diagnostic Code 5257 which governs recurrent subluxation or lateral instability. A 10 percent disability rating is warranted when the recurrent subluxation or lateral instability is found to be slight. A 20 percent disability rating is warranted when the recurrent subluxation or lateral instability is found to be moderate. A 30 percent, and maximum disability rating is warranted when the recurrent subluxation or lateral instability is found to be severe. 38 C.F.R. § 4.71a, DC 5257. Other diagnostic codes relating to the knee include: Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocation of semilunar cartilage), Diagnostic Code 5259 (removal of symptomatic semilunar cartilage), Diagnostic Codes 5260 and 5261 (limitation of flexion of the leg and limitation of extension of the leg) and 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). As noted below, these conditions are not shown on treatment, nor examination, and application of these diagnostic codes are not warranted. 38 C.F.R. § 4.71a. The Veteran was provided a VA examination of his joints in August 2011. The Veteran’s degenerative joint disease (DJD) and his frequent use of a knee brace for both knees since 2010 was noted by the examiner. The symptoms noted by the examiner were pain and stiffness, but no deformity, no giving way, and no instability or weakness. The examiner noted no episodes of dislocation or subluxation, no locking, no effusion of the left knee, and no inflammation. The examiner did note that the right knee had constant effusion at the medial aspect since 2010. The Veteran reported no flare-ups as he indicated he had daily pain. The examiner also noted no inflammatory arthritis. The Veteran’s gait was noted as antalgic with poor propulsion, and was also found to have tenderness bilaterally, with only crepitus noted in the right knee. The Veteran was found to have bilateral painful motion. The ROM measurements were taken of both knees and found to be left knee flexion at 0 to 135 degrees with left knee extension as normal. The right knee ROM measurements were right knee flexion at 0 to 125 degrees with normal extension. There was objective evidence of pain on both sides during flexion which was found to be less than normal due to pain. The examiner noted the March 2010 x-rays of the Veteran’s knees and found that the left knee had mild degenerative arthrosis involving the medial compartment of the left knee. While the March 2010 x-ray of the right knee showed minimal stable degenerative arthrosis of the right knee. The examiner indicated that the Veteran’s bilateral knee and lumbar disability had a significant impact on the Veteran’s ability to work. The Board finds that the Diagnostic Code 5257 that governs recurrent subluxation and joint instability do not consider painful motion and therefore the Board finds that, as discussed below, a separate evaluation for painful joint motion is warranted in this case. The Veteran’s VA treatment records indicated x-rays from August 2013 that found bilateral degenerative changes in the medial compartment of the left knee with bone on bone and right knee joint space narrowing. The Veteran also continued to have worsening pain, with some swelling and popping and some giving way as he indicated in a December 2013 doctor’s note. The Veteran also received an x-ray of his knees in May 2016 that noted bilateral knee osteoarthritis with some bone-on-bone. However, the Veteran’s treatment records are silent for complaints or treatment of recurrent subluxation or instability, beyond the report of “some giving-way” in August 2013. The Board finds that the Veteran’s disability picture manifested as slight as there was no recurrent subluxation or lateral instability found in the VA examination of August 2011. The Board finds that the Veteran’s disability picture did not manifest to a moderate degree that would warrant an increase to the 20 percent disability rating as there was no additional evidence or additional VA examinations in the evidence of record. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the appellant’s claim for an evaluation in excess of 10 percent for the Veteran’s bilateral knee condition is not warranted. Entitlement to a 10 percent rating, but no higher, for right knee arthritis See below. Entitlement to a 10 percent rating, but no higher, for left knee arthritis The Veteran did not contend that he was entitled to service connection for arthritis, however, arthritis was found in the Veteran’s bilateral knees due to the x-rays taken in March 2010 and addressed in the VA examination provided in August 2011. Therefore, the Board finds that the appellant is entitled to service connection for bilateral knee arthritis at 10 percent disabling, but no higher. 38 C.F.R. § 4.71a DC 5003, governs osteoarthritis, and indicates that 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 (DC 5200 etc.). When however, 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, rate as below. A 10 percent rating is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) states that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. While Note (2) indicates he 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. The Veteran received a VA examination, in August 2011 that noted x-rays were taken in March 2010 that found arthrosis of bilateral knees. The x-ray impressions noted mild degenerative arthrosis involving the medial compartment of the left knee with mild spurring in the medial compartment, but no fractures, subluxations, dislocations, or effusions. The right knee showed minimal stable degenerative arthrosis with minimal degenerative findings stable in the medial compartment with no joint space narrowing or effusions, fractures, subluxations, or dislocations. The Veteran was noted as having pain on motion for flexion in both knees. The Board finds that the VA examination is competent, credible, and with significant probative weight. The Board notes that the Diagnostic Codes that govern ROM, Diagnostic Codes 5260 and 5261, do not provide a compensable rating at any measurements that the Veteran was measured in the VA examination in August 2011. The Board finds that the VA examination of August 2011 is competent, credible and with significant probative weight. The Board notes that there are no additional examinations to rely upon. Other diagnostic codes relating to the knee include: Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocation of semilunar cartilage), Diagnostic Code 5259 (removal of symptomatic semilunar cartilage), Diagnostic Code +5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). As noted, these conditions are not shown on treatment, nor examination, and application of these diagnostic codes are not warranted. 38 C.F.R. § 4.71a. The VA treatment records confirmed the Veteran’s bilateral arthritis of the knees through x-rays during the appeal period and painful motion throughout treatment records and consistent complaints of pain. Under, Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Diagnostic Codes for the already service-connected bilateral knee condition and the Veteran’s bilateral knee arthritis do not contain symptomatology that is duplicative of or overlapping with the symptomatology justifying an evaluation under either diagnostic code. The Board finds that by adding the disability rating for the Veteran’s arthritis that there has been no pyramiding nor overlapping symptoms considered by the Board. The Board also notes that by finding the appellant is entitled to a 10 percent rating for both knees under Diagnostic Code 5003, that the Board has considered the Veteran’s noted painful motion and functional impact. 38 C.F.R. §§ 4.40, 4.45, 4.49. The Board finds that the appellant’s bilateral knee arthritis warrants a 10 percent disability rating for each knee. However, the appellant does not meet the criteria required for a 20 percent disability rating as there was no indication of x-ray evidence showing involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The x-ray evidence showed that the Veteran’s knees were the only major joint affected by arthritis and there was no indication that other major joints or minor joint groups were affected with incapacitating exacerbations. The Board finds that a separate 10 percent disability rating for arthritis is warranted for each knee for the entire period on appeal. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.