Citation Nr: 20006902 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-30 306 DATE: January 28, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to March 25, 2019 for lumbar spine disability, and in excess of 20 percent thereafter, is denied. Entitlement to an initial rating in excess of 10 percent prior to March 25, 2019 for left knee patellofemoral syndrome (left knee condition), and in excess of 20 percent thereafter, is denied. Entitlement to a 10 percent, but no higher, for left knee instability is granted from June 1, 2014 to March 24, 2019, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Taking into account both pain and functional loss, prior to March 25, 2019, the Veteran’s forward flexion of the thoracolumbar spine is not shown to be less than 60 degrees; combined range of motion of the thoracolumbar spine is not shown to be less than 120 degrees; the Veteran is not shown to exhibit muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis of the spine is not shown; nor is the Veteran shown to have had any incapacitating episodes having a total duration of at least two weeks during a 12-month period. 2. Considering both pain and functional loss, as of March 25, 2019, the Veteran’s forward flexion of the thoracolumbar spine is not shown to be 30 degrees or less; ankylosis of the spine is not shown; nor is the Veteran shown to have had any incapacitating episodes having a total duration of at least two weeks during a 12-month period. 3. Prior to March 25, 2019, the Veteran’s left knee condition has not been shown to result in flexion limited to 30 degrees or less; as of March 25, 2019, the Veteran’s left knee condition has not been shown to result in flexion limited to 15 degrees or less; at no time during the period on appeal has the Veteran’s left knee condition exhibited a dislocated meniscus with frequent episodes of pain, and effusion, a removed meniscus, ankylosis, an impairment of the tibia and fibula, or genu recurvatum. 4. The Veteran’s left knee instability has not been shown to result in moderate recurrent subluxation or lateral instability. 5. From June 1, 2014 to March 24, 2019, the Veteran’s left knee disability has been shown to be manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for lumbar strain prior to March 25, 2019, and in excess of 20 percent thereafter, have not been met. 38 C.F.R. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5243. 2. The criteria for an initial rating in excess of 10 percent for a left knee condition prior to March 25, 2019, and in excess of 20 percent thereafter, have not been met. 38 C.F.R. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for a 10 percent disability rating, but no higher, for left knee instability from June 1, 2014 to March 24, 2019, have been met. 38 C.F.R. § 1155, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to May 2014, to include service in support of Operation Iraqi Freedom. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). During the pendency of the appeal, an October 2019 rating decision granted an increased rating for left knee disability of 20 percent, effective March 25, 2019. The October 2019 rating decision additionally granted an increased rating for lumbar spine disability of 20 percent, effective March 25, 2019. As those ratings are not the maximum allowable, those issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Lumbar Strain The Veteran’s lumbar spine disability was initially assigned a 10 percent evaluation effective June 1, 2014; one day following separation from service. The Veteran has appealed his initial rating. As noted above, an October 2019 rating decision granted a 20 percent rating effective March 25, 2019; the date of a VA examination. The Veteran’s lumbar strain is rated under DC 5237 prior to March 25, 2019, and under DC 5243 thereafter. Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a. Initially, the Board notes that throughout the period on appeal, the Veteran’s lumbar spine disability had not been found manifested by IVDS. Therefore, rating the lumbar spine disability under the rating criteria for IVDS is not applicable. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a Note (2); see also 38 C.F.R. § 4.71a Plate V. During the period on appeal, the Veteran has been provided with three VA examinations pertaining to his lumbar strain. The Veteran initially underwent a VA examination in October 2014. The Veteran reported having flare-ups with his lumbar strain that impacted his functional ability by making it hard to move. The VA examiner assessed the Veteran’s range of motion (ROM) of his thoracolumbar spine for forward flexion from 0 to 85 degrees with painful motion at 85 degrees, for extension from 0 to 25 degrees with painful motion at 25 degrees, both right and left lateral flexion from 0 to 25 degrees with painful motion at 25 degrees, and both right and left lateral rotation from 0 to 25 degrees with painful motion at 25 degrees. The Veteran was able to undergo repetitive use testing without any change in ROM measurements or additional impact to his functional ability. However, the VA examiner reported the Veteran had functional impairment due to painful motion. The Veteran was not found to have any pain or tenderness upon palpitation of the thoracolumbar spine, nor to have any muscle spasms or guarding. The Veteran’s muscle strength, reflex and sensory testing were normal. No radiculopathy or IVDS was found. The VA examiner noted contributing factors of pain, weakness, fatigability, and/or incoordination, but emphasized that there was no additional limitation of functional ability of the spine during flare-ups or repeated use over time. The Veteran underwent another VA examination in November 2017. During this examination, the Veteran denied flare-ups. He did note current symptoms pertaining to his lumbar strain including early morning stiffness. The examiner Veteran’s ROM was assessed as normal with forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, both right and left lateral flexion from 0 to 30 degrees, and both right and left lateral rotation from 0 to 30 degrees. The VA examiner noted no pain upon ROM assessment. The Veteran was able to undergo repetitive use testing, and the VA examiner reported that there was no additional loss of function or ROM. The Veteran was found to not have guarding or muscle spasms of the thoracolumbar spine, to have normal strength with no muscle atrophy, and to have normal reflexes as well as normal sensations to light touch. The Veteran was not found to have a radiculopathy, ankylosis, nor IVDS. The Veteran did not report utilizing any assistive devices. The Veteran last underwent a VA examination in March 2019, in which in addition to the Veteran’s lumbar strain the Veteran was diagnosed with degenerative joint arthritis of the lumbar and thoracic spine and degenerative disc disease of the lumbar spine with a right lower extremity radiculopathy. The Veteran reported having persistent achy back pain with tenderness, and having radicular pain on the right side that worsened upon walking, standing, and weight bearing. The Veteran also reported flare-ups of increased stiffness and pain to his bilateral extremities caused by a change in weather, such as to cold weather or a damp climate. The VA examiner assessed the Veteran’s ROM of his thoracolumbar spine for forward flexion from 0 to 60 degrees, for extension from 0 to 10 degrees, for both right and left lateral flexion from 0 to 20 degrees, and for both right and left lateral rotation from 0 to 20 degrees. The VA examiner noted no pain with ROM assessment, and pain exhibited with all ROM. The VA examiner found evidence of pain on palpation of the thoracolumbar spine, and noted it as a 3 out of 10 for dull pain upon palpitation, which was considered to be reflective of the Veteran’s reported pain with walking, standing, and weight bearing due to his lumbar strain. The Veteran was able to undergo repetitive use testing, and the VA examiner reported that there was no additional loss of function or ROM. The VA examiner found that pain contributed to functional loss over time, but that the pain would not change the Veteran’s ROM. However, the VA examiner did find that during a flare-up both pain and weakness would contribute to functional loss, and that it would change the Veteran’s ROM, providing for forward flexion from 0 to 50 degrees, extension from 0 to 5 degrees, both right and left lateral flexion from 0 to 10 degrees, and both right and left lateral rotation from 0 to 10 degrees. The Veteran was not found to have guarding or muscle spasms of the thoracolumbar spine. The muscle strength testing found the Veteran to have 4 out of 5 strength for both hip flexion and knee extension on both the left and right side, and normal 5 out of 5 strength for ankle plantar flexion on both the left and right side. The Veteran was not found to have muscle atrophy, and he was found to have normal sensation to light touch. The Veteran was found to have an overall mild radiculopathy of the right lower extremity. The Veteran was not found to have ankylosis or IVDS. The Veteran did not report utilizing any assistive devices. The VA examiner noted that the Veteran’s new diagnoses were directly related to the Veteran’s service-connected lumbar strain as they were a progression from the chronic unresolved state of inflammation that in turn caused the arthritic process, that the subsequent breakdown of integrity of vertebrae caused the degenerative disc disease, and that episodes of laxity of the vertebrae caused impingement of the spinal cord causing a radiculopathy. A review of the Veteran’s VA treatment records does not show any further limitations of the Veteran’s functional ability as it pertains to his lumbar strain, nor do they show any different findings pertaining to ROM of the Veteran’s thoracolumbar spine. After a review of the evidence of record, the Board finds that, prior to March 2019, an initial rating in excess of 10 percent disabling is not warranted. The Board additionally finds that, as of March 2019, a rating in excess of 20 percent disabling is not warranted. Turning to the initial period on appeal, prior to March 25, 2019, the medical evidence does not support a rating in excess of 10 percent. At its worst, the Veteran’s ROM for forward flexion of the thoracolumbar spine was 85 degrees and his combined ROM was 210 degrees, which aligns with a 10 percent disability evaluation. A rating of 20 percent would require forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or, the combined ROM of the thoracolumbar spine not greater than 120 degrees. In this regard, throughout the entire period on appeal, the Veteran’s lumbar spine disability has not been found manifested by muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The lumbar spine disability has also not been found to have been manifested by ankylosis or IVDS with any incapacitating episodes. As such a higher rating is not warranted based upon those symptoms during any portion of the appeal period. Prior to March 2019, the Veteran has additionally not been found to have a radiculopathy of the RLE, a condition first noted during the March 2019 VA examination. Otherwise, for the entire period on appeal the Veteran has not been found to have any additional neurologic abnormalities such as a bladder or bowel condition. As such, additional separate ratings are not warranted for the entire period on appeal. As of March 25, 2019, the medical evidence does not support a rating in excess of 20 percent. The Veteran’s ROM as of the March 25, 2019 VA examination, was 60 degrees for forward flexion of the thoracolumbar spine, and his combined ROM was 150 degrees. The Veteran was also found to have functional loss during flare-ups that would limit the Veteran’s ROM to 50 degrees for forward flexion of the thoracolumbar spine, and have a combined ROM of 95 degrees. These findings align with a 20 percent disability evaluation. A higher rating would require forward flexion of the thoracolumbar spine to be limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine which has not been shown. The Board recognizes the Veteran’s June 2018 VA Form 9, Substantive Appeal, in which he asserted that the November 2017 VA examination was inadequate. In this regard, the Veteran asserted that he did not deny flare-ups and that ROM measurements were not taken. However, a review of the VA examination report shows that ROM measurements were provided, and the examiner specifically noted that a goniometer was utilized in measuring the Veteran’s ROM. Those measurements noted a normal lumbar spine. The examination report further noted negative findings for radiculopathy or further functional loss when considering flare-ups and repetitive use. Therefore, the Board finds that the symptoms, or lack thereof, noted in the examination report supports the ROM measurements reported. Accordingly, the Board finds the November 2017 VA examination adequate and probative. The Board also notes that the Veteran was provided with another VA examination in March 2019. In any event, in the absence of clear evidence to the contrary, the Board notes that the presumption of regularity provides that VA examiners have properly discharged their official duties. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). In this regard, the Board recognizes the recent decision Francway v. Wilkie 2018-2136, in which the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Rizzo and Bastien to extent they created a “presumption of competency.”. However, the Veteran has not challenged the competency of the medical examiner in this case. Instead, the Veteran has asserted that the VA examiner did not properly examine his lumbar spine condition, and, therefore, called into question the reported symptomatology. Therefore, the Board need not address the qualifications of the November 2017 VA examiner. The Board has additionally considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 for the Veteran’s lumbar strain. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). For the entire period on appeal, the Veteran has been noted to have painful motion, however, as previously stated, pain alone without functional loss is not sufficient to warrant a higher disability rating. Neither the October 2014 VA examination, nor the November 2017 VA examination, found the Veteran to have experienced functional loss that further limited his ROM. As such, a rating in excess of 10 percent prior to March 25, 2019 is not warranted. The VA examiner from the March 2019 VA examination, found that pain contributed to functional loss, but did not find that it would contribute to functional loss over time with repeated use. However, the examiner did find that pain and weakness would contribute to functional loss with flare-ups. As the examination did not take place during a flare-up, the examiner did consider the Veteran’s reports of functional limitations caused by pain or weakness. As such, pain is considered, and a rating in excess of 20 percent as of March 25, 2019 is not warranted. In sum, the Board concludes that, prior to March 25, 2019, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent. The Board further concludes that, as of March 25, 2019, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent disabling. As the preponderance of the evidence is against the claim the benefit-of-the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Left Knee Condition The Veteran’s left knee disability was initially assigned a 10 percent evaluation effective June 1, 2014; one day following separation from service. The Veteran has appealed his initial rating. As noted above, an October 2019 rating decision granted a 20 percent rating effective March 25, 2019; the date of a VA examination. The October 2019 rating decision additionally granted a separate 10 percent rating based on instability, effective March 25, 2019. The Veteran’s left knee condition has been rated pursuant to DCs 5260 and 5257. DC 5260 evaluates the limitation of flexion for the knee. A noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 evaluates the limitation of extension for the knee. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating is assigned for extension limited to 20 degrees, a 40 percent rating is assigned for extension limited to 30 degrees, and a 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. DC 5257 evaluates recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. DC 5258 and 5259 evaluate impairment of the semilunar cartilage. A 10 percent rating is assigned for removal of the meniscus that is symptomatic. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258, 5259. DC 5256 evaluates ankylosis of the knee, DC 5262 evaluates impairment of the tibia and fibula, and DC 5263 evaluates genu recurvatum. The medical record does not document any of these conditions, and therefore these Diagnostic Codes are not applicable and will not be further discussed. Throughout the period on appeal, the Veteran’s treatment records do not show findings consistent with a rating in excess of 10 percent prior to March 25, 2019, nor in excess of 20 percent thereafter, for the Veteran’s left knee condition under Diagnostic Code 5260. However, the Board finds that the Veteran has credibly reported instability of his left knee beginning in service and continuing through present day, and as such the Board finds that the Veteran’s initial evaluation of 10 percent for instability under Diagnostic Code 5261 is warranted as of June 1, 2014, the day after his separation from the military. See 38 C.F.R. § 3.400. The Veteran has been provided with three VA examinations pertaining to his left knee condition. The Veteran underwent a VA examination for his left knee condition in November 2014, in which he reported the onset of symptoms beginning in June 2008 when he began noticing pain while wearing body armor, and that the condition had gotten worse. The Veteran reported flare-ups where his knee would pop out of place, and that he is then unable to walk until the knee pops back into place. The VA examiner found the Veteran’s ROM for flexion to be to 135 degrees with painful motion noted at 135 degrees, and his ROM for extension to be to 5 degrees with painful motion noted at 5 degrees. The Veteran underwent repetitive use testing, and the examiner reported that the Veteran’s ROM remained the same after three repetitions. The examiner noted that the Veteran had functional loss due to pain, and noted pain upon palpation of the left knee. Stability testing was normal, and the examiner noted no history of subluxation or dislocation. The examiner did not find a meniscal condition. The examiner opined that there were contributing factors of pain, weakness, fatigability, and/or incoordination but no additional limitation of functional ability of the knee joint during flare-ups or repeated use over time. Another VA examination was obtained in November 2017, in which it was noted the Veteran did not report any flare-ups. The VA examiner found the Veteran’s ROM to be normal for both flexion and extension, 0 to 140 degrees, without any pain exhibited. After repetitive use testing the examiner noted the Veteran’s ROM to remain the same, and did not note any further loss of function. The examiner reported the Veteran to have normal strength, no muscle atrophy, no ankylosis, no effusion, and no history of recurrent subluxation or instability. Stability testing was normal. The examiner noted a meniscal tear and frequent episodes of joint locking, and cited to a June 2014 MRI of the Veteran’s left knee, which noted the medial meniscus to be intact, the lateral meniscus to show a horizontal linear fluid signal within the anterior horn and body of the lateral meniscus, increased intrasubstance signal within the posterior horn, a 6 millimeter meniscus cyst at the anterior aspect of the lateral meniscus, and moderate chondral degeneration within the lateral femoral condyle. The Veteran last underwent a VA examination for his left knee condition in March 2019. The Veteran reported having pain with walking, standing, and weight bearing, as well as noting instability with his left knee when walking up and down stairs, and that there had been increased crepitus with laxity and questionable dislocation on flexion. The Veteran reported flare-ups of his left knee where cold weather and damp climate could trigger flares of increased pain, swelling, and stiffness. The VA examiner found the Veteran’s ROM for both flexion and extension to be from 0 to 50 degrees, and noted that Veteran exhibited pain on both flexion and extension. The examiner reported evidence of pain on palpation of the Veteran’s left knee that was reflective of the Veteran’s statements of pain on walking, standing, and weight bearing. The Veteran underwent repetitive use testing and the examiner found there to be no additional loss of function or ROM after repetitions. The examiner found that with repeated use over time the Veteran’s functional ability would be limited by pain, but would maintain the same ROM. The examiner found that the Veteran’s functional ability would be limited by pain with flare-ups, and would exhibit decreased ROM for both flexion and extension from 0 to 30 degrees. The examiner rated the Veteran to have 4/5 strength in the left knee for active movement against some resistance. The examiner did not find the Veteran to have muscle atrophy, ankylosis, effusion, or a meniscal condition. The examiner did report the Veteran to have a history of slight recurrent instability and lateral instability, and noted his instability to be 1+ (0-5 millimeters) for anterior instability, posterior instability, medial instability, and lateral instability. The Veteran reported that he utilizes a knee brace constantly for stabilization and support when walking. The VA examiner found that the increased laxity and instability of the Veteran’s left knee was a progression of his service-connected patellofemoral pain syndrome. A review of the Veteran’s service treatment records (STRS), showed on a post-deployment exam from December 2009, that the Veteran reported his left knee gives out occasionally when he squats or kneels, and that when he straightens the knee it goes back to normal. A medical examination from January 2014 noted that the Veteran’s left knee gives out. A review of the Veteran’s VA treatment records, showed that in June 2014 the Veteran reported having pain in his left knee when squatting, as well as having pain when he had been kneeling for three to five minutes, that after when he tries to stand his knee “pops out,” and if he then puts weight on his left knee it will give out. The Veteran relayed that anytime he now stands or squats for a while he will straighten his leg before trying to stand up. The Veteran received an MRI for his left knee in June 2014, which as noted in the November 2017 VA examination above, showed the Veteran to have a horizontal tear of the lateral meniscus, with degeneration, and a loose body within the posterior joint space. Results from an MRI in July 2018 noted the Veteran to have bursitis, tricompartmental chondromalacia and osteoarthritis, medial and lateral meniscal degeneration, a tear of the lateral meniscus, and a displaced meniscal fragment. A September 2018 entry notes the Veteran underwent physical therapy for six to eight weeks in 2014 after receiving the results from his MRI, which the Veteran reported the pain and laxity in his left knee had continued after the therapy but had become manageable, at least until the past 12 to 16 months, and now the Veteran reports increased pain, increased limitations with ROM, increased instability during prolonged walking or during yard work, and patellar laxity, which it was noted that the Veteran demonstrated the ability to dislocate his patella to the clinician. Notation’s from November 2018 state that the 2018 MRI notes progressing meniscus pathology from 2014 to 2018, and that the foreign bodies in the Veteran’s left knee are likely the cause of the popping in the knee. In November 2018 as well, the Veteran reported that his left knee pain was worsening, that when he is just sitting his left knee pops, that doing outdoor activities is starting to become more difficult, and that he now must wear a knee brace. The Veteran’s current 20 percent rating for flexion under Diagnostic Code 5260 takes into account both painful motion and reduced ROM limited to 30 degrees. The Veteran’s ROM was exhibited at its worst in the March 2019 VA examination, where the Veteran exhibited ROM limited to 50 degrees for flexion, which on its own is a noncompensable ROM. However, when flare-ups were considered, the VA examiner reported the Veteran’s functional ability would be limited by pain and that he would exhibit a reduced ROM limited to 30 degrees. The March 2019 examination provided evidence of how the Veteran’s functional ability would be limited by pain and flare-ups, and thus the 20 percent evaluation as of the March 25, 2019 examination was warranted, but an evaluation of 30 percent under Diagnostic Code 5260 is not warranted as the evidence has not shown the Veteran to have exhibited ROM for flexion limited to 15 degrees or less. In addition, as the Veteran was first found to exhibit a ROM that would be compensable during the March 2019 VA examination, a rating greater than 10 percent prior to March 25, 2019 is not warranted. Prior to March 25, 2019, the Veteran’s ROM was noted at its worst to be limited to 135 degrees in the November 2014 VA examination, and not to be limited at all in the November 2017 VA examination. Therefore, the 10 percent evaluation provided prior to March 25, 2019 is based on painful motion, as painful motion is an important factor of disability, and joints that are actually painful, unstable or malaligned, due to healed injury should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran’s left knee condition. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). It is the Veteran’s functional loss due to pain and flare-ups as exhibited for flexion in the March 2019 VA examination that provides the Veteran with his 20 percent rating for his left knee condition, and prior to March 25, 2019 it is the painful motion the Veteran exhibited upon flexion during examinations and his regular attestations of pain in his left knee that warrants a minimal 10 percent rating for his left knee condition. As pertains to limitation of extension, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5261 have not been met. The Veteran exhibited extension limited to 5 degrees in the November 2014 VA examination, but in both the November 2017 and the March 2019 VA examinations the Veteran exhibited normal extension to 0 degrees. As such, the Veteran has not exhibited the 10-degree limitation of motion upon extension that is required for a compensable rating under Diagnostic Code 5261. Regarding a meniscal condition, while the Veteran has been shown to have a meniscal condition as evidenced by both the June 2014 and July 2018 MRIs, and while the November 2017 VA examination noted frequent episodes of joint locking, he has not undergone a meniscectomy and his condition has not been shown to have frequent episodes pain and effusion into the joint. See November 2017 VA examination. Additionally, the March 2019 VA examination noted a left knee disability not manifested by a meniscal condition with frequent episodes of joint locking, pain or effusion. In addition, none of the Veteran’s VA treatment records or VA examinations note effusion. As such, the Veteran is not found to meet the criteria for a compensable rating under Diagnostic Code 5259, which would require removal of the meniscus, nor is he found to meet the criteria for a compensable rating under Diagnostic Code 5258, which requires a dislocated meniscus along with frequent episodes of locking, pain, and effusion. Pertaining to recurrent subluxation or lateral instability, as previously stated the Veteran was granted a 10 percent evaluation under Diagnostic Code 5257 effective March 25, 2019, the date of the examination that found slight lateral instability. While the Board acknowledges that the VA examinations prior to March 2019 did not find the Veteran to have either recurrent subluxation or lateral instability, the Board finds the Veteran to have credibly and continuously attested to instability since his time in service, and such is supported by the Veteran’s STRs. The Veteran additionally reported flare-ups where his knee would pop out of place during the June 2014 VA examination. Accordingly, the Board finds that a separate 10 percent evaluation is warranted effective June 1, 2014, the day following separation from service. However, an evaluation in excess of 10 percent is not warranted, as the evidence has not shown the Veteran to have moderate recurrent subluxation or lateral instability. As noted previously, the Veteran’s March 2019 VA examination found the Veteran to have a history of slight lateral instability, and reported his instability to be 1+ (0-5 millimeters) for anterior instability, posterior instability, medial instability, and lateral instability. Specifically, no instability was found during any of the prior VA examinations. Therefore, the Board finds that the evidence of record does not more nearly approximate moderate or severe lateral instability. In sum, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran’s left knee condition prior to March 25, 2019, and in excess of 20 percent thereafter and those claims are denied. The Board further finds that, a 10 percent rating is warranted, but no higher, for left knee instability between June 1, 2014 and March 24, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). CHRISTOPHER LAMB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.