Citation Nr: 20047149 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-06 154A DATE: July 14, 2020 ORDER Entitlement to a rating in excess of 10 percent prior to November 12, 2014, and in excess of 40 percent thereafter for degenerative disc disease lumbar spine with intervertebral disc syndrome (back condition) is denied. Entitlement to a rating in excess of 10 percent prior to October 24, 2014, and in excess of 20 percent thereafter for chronic left ankle sprain (left ankle condition) is denied. Entitlement to a rating in excess of 10 percent for chronic right knee sprain with Osgood-Schlatter's disease (right knee condition) is denied. FINDINGS OF FACT 1. Prior to November 12, 2014, the Veteran’s back condition was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees; or, the combined range of motion of the thoracolumbar spine limited to 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; or IVDS with incapacitating episodes having a total duration of at least 2 weeks during the past 12 months; or associated neurologic abnormalities other than the service-connected radiculopathy of the bilateral lower extremity. 2. From November 12, 2014, the Veteran’s back condition is not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; or associated neurologic abnormalities other than the service-connected radiculopathy of the bilateral lower extremity. 3. Prior to October 24, 2014, the Veteran’s left ankle condition was not manifested by marked limitation of motion. 4. From October 24, 2014, the Veteran’s left ankle condition is not manifested by ankylosis, and is properly rated at the highest schedular rating available for his orthopedic symptomatology. 5. The Veteran’s right knee condition is not manifested by leg flexion limited to 30 degrees; limited extension; ankylosis; effusion; tibia or fibula deficiencies; or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to November 12, 2014, and in excess of 40 percent thereafter for a back condition have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a Diagnostic Codes 5243-5242 (2019). 2. The criteria for a rating in excess of 10 percent prior to October 24, 2014, and in excess of 20 percent thereafter for left ankle condition have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5271 (2019) 3. The criteria for a rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to April 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2010 and December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in June 2018. The Board finds there has been substantial compliance with its June 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. 1. Entitlement to a rating in excess of 10 percent prior to November 12, 2014, and in excess of 40 percent thereafter for degenerative disc disease lumbar spine with intervertebral disc syndrome (back condition) The Veteran asserts that his back condition is more severe than a 10 percent rating prior to November 12, 2014, and more severe than a 40 percent rating from that date. The Veteran is rated under Diagnostic Code 5243-5242. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 5242 refers specifically to degenerative arthritis of the spine. A 10 percent rating is available for degenerative joint disease and degenerative disc disease of the lumbosacral spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242, 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 evaluation is based on limitation of motion where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Alternatively, when a Veteran has intervertebral disc syndrome (IVDS), 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides for ratings based on incapacitating episodes. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The highest 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Prior to November 12, 2014 In an August 2009 treatment record, the Veteran complained of lower back pain causing leg pain. In a January 2010 VA examination, the Veteran complained of a constant tightness in his back and the back pain was worse and flared up in the morning when he got out of bed. Also, the lower back pain radiated towards his left lower extremity of both the knee and the pain was moderate once he got a flare up. The Veteran said the flare up occurred if he sat for longer than 30 minutes, stood longer than 20 minutes, or walked half a mile. The Veteran stopped walking because of his back pain. The Veteran also said driving one hour or longer triggered further back pain. The Veteran otherwise avoided bending and lifting. He denied paresthesias in his legs. He denied bowel and bladder dysfunction. He said occasionally, if the back pain flare up was severe, then he had to take time off from work because he was not able to sleep at night and get up in the morning and function at work. The severe flare ups sometimes lasted up to one week. The Veteran said that over one year he had to take 3 days of sick leave due to severe back pain, but had never been prescribed bedrest by a physician because of his back pain. Back pain was relieved by taking Motrin, heating pad and using a massager. Upon examination, the lumbar spine showed normal alignment and showed no tenderness with palpation, no paraspinal tenderness, and no muscle spasm. Range of motion was the following: forward flexion to 80 degrees; extension to 25 degrees; bilateral lateral rotations to 25 degrees; right lateral flexion to 20 degrees; and left lateral flexion to 25 degrees. Mainly the rotations and lateral flexions elicited pain and after 3 repetitions of range of motion, there was no loss of excursion due to pain, fatigue, weakness, or lack of endurance. In the June 2010 notice of disagreement, the Veteran said that he was able to perform range of motion tests during the January 2010 VA examination because he was under medication. He said that he performed forward flexion with pain right at 30 to 40 degrees flexion, but said that the VA examiner did not ask if he was experiencing pain so the Veteran continued to go forward with eliciting pain right at 70 to 80 degrees forward flexion. In a July 2010 VA treatment record, a history of chronic lower back pain for over 10 years was noted. There was no radiation of pain and no loss of bowel or bladder function. The Veteran described the discomfort as a 6 out of 10 and Motrin helped with the pain. In a February 2011 MRI, the impression was the following: 1) annular tear in the right paracentral aspect of the L5-S1 disc adjacent to the right lateral recess, however, no evidence of nerve root compression; annual tear of the left posterolateral aspect of the disc of L4-5; no evidence of nerve root compression; mild lateral recess narrowing; and 3) annular bulge of L3-4 with mild lateral recess narrowing. In an April 2013 VA treatment record, the Veteran complained of constant pain at 6 out of 10, which was burning and radiated to bilateral mid posterior thighs. The Veteran said he underwent physical therapy which did not relieve lower back pain. Upon examination, the Veteran’s back was tender to palpation of bilateral lumbar spinal muscle. The Veteran’s gait was stable. From November 12, 2014 Initially, the Board notes that the November 2014 VA examination was found to be inadequate in the June 2018 Board remand because it did not comply with the Court findings in Correia or Sharp. Therefore, the Board will only consider the adequate parts of this VA examination for adjudication purposes. In a November 2014 VA examination, the Veteran described his pain as a 5 to 6 out of 10, and said his sleep was affected. It was noted that the Veteran also suffered from gout. The Veteran reported flare ups after lifting at work. Upon examination, range of motion was the following: forward flexion to 20 degrees with objective evidence of painful motion to 20 degrees; extension to 10 degrees with objective evidence of painful motion to 10 degrees; right lateral flexion to 15 degrees with objective evidence of painful motion to 15 degrees; left lateral flexion to 15 degrees with objective evidence of painful motion to 15 degrees; right lateral rotation to 20 degrees with objective evidence of painful motion to 20 degrees; and left lateral rotation to 20 degrees with objective evidence of painful motion to 20 degrees. The Veteran was not able to perform repetitive use testing with 3 repetitions. The examiner noted that the Veteran was difficult to examine further due to pain and the Veteran declined due to injury at work. The Veteran described functional loss as pain on movement. The Veteran had localized tenderness or pain to palpation as para lumbar. There was no muscle spasm. There was guarding that did not result in abnormal gait or abnormal spinal contour. There was no muscle atrophy. There was no radicular pain or any other signs or any other signs or symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities. There was no IVDS. The Veteran did not use any assistive devices. The examiner added that pain, weakness, fatigability, or incoordination could limit functional ability during flare ups, or when the joint was used repeatedly over a period of time. The examiner stated that he was unable to describe precisely how much limitation of range of motion the Veteran would experience during a flare up without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In a March 2015 VA treatment record, the Veteran requested a different back brace. In a September 2015 VA treatment record, it was noted the Veteran had a history of chronic lower back pain, rated as 5 out of 10, for over 10 years with occasional radiation down the right leg. There was no loss of bowel or bladder function. The back was found to be stable. In an August 2019 VA examination, the Veteran said that he had intermittent flares that required time off work. He used analgesic cream and acupuncture. He also used ibuprofen 1500 mg a day. The Veteran stated that acupuncture worked for only 2 weeks. He used a TENS unit with some relief. He had trigger point injections with temporary relief, but not recently. He had not had any epidurals or surgery. The Veteran also had radicular pain down the back of the right leg to the knees and to the buttocks on the left. This radicular pain was associated with numbness/tingling and occasionally weakness. The Veteran reported flare ups that occurred twice a month when he overused his back, such as when lifting groceries. The flare ups lasted a day. The Veteran reported functional loss as limited flexion, lifting limited to 10 to 15 pounds, sitting limited to 10 minutes, standing limited to 5 minutes, frequent sleep disturbance, and walking limited to a block due to back, knees and ankle. Upon examination, range of motion was the following: forward flexion to 30 degrees; extension to 20 degrees; right lateral flexion to 15 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. Range of motion itself contributed to a functional loss described as being unable to reach down. Pain was noted at all ranges of motion. There was objective evidence of localized tenderness with diffuse tenderness of thoracic and lumbar paraspinal muscles. The Veteran was able to perform repetitive use testing with at lest 3 repetitions with additional loss of function or range of motion. Pain caused this functional loss. Range of motion was the following: forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. Range of motion was the following: forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. The exam was conducted during a flare up. Pain significantly limited functional ability with flare ups. Range of motion was the following: forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. The Veteran had muscle spasm resulting in abnormal gait or abnormal spinal contour. There was diffuse spasm of thoracic and lumbar paraspinal muscles, right greater than left resulting in mild lateral curvature and loss of normal lordosis. There was no guarding. The examiner noted less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle or peripheral nerve injury, etc., disturbance of locomotion, interference with sitting, and interference with standing. There was no muscle atrophy. Radiculopathy was noted in the bilateral lower extremities. There was no ankylosis. There were no other neurologic abnormalities. The Veteran had IVDS but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran used a brace occasionally when he was walking. The examiner added that there was pain on passive range of motion testing and on non-weight bearing. Additional post-service treatment records are silent for any evidence warranting an increased rating for the Veteran’s back condition prior to November 12, 2014, and thereafter. Overall, the Board finds that the evidence of record does not show symptomatology warranting a rating in excess of 10 percent prior to November 12, 2014, and in excess of 40 percent thereafter. Prior to November 12, 2014, the evidence of record indicated that the Veteran had no worse than flexion to 80 degrees. As noted above, a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Additionally, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Further, from November 12, 2014, the evidence of record indicated that the Veteran had forward flexion to, at worse, 20 degrees. As noted above, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence showing the Veteran had ankylosis. Prior to November 12, 2014, there was also no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. From November 12, 2014, there was also no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his back. Layno, 6 Vet. App. 465. However, to the extent that he was asserting decreased range of motion in his back, his lay description does not adequately rebut the medical evidence, including more recent testing, as discussed above. The Board places more probative value on the objective evidence of record, which is measured in degrees, rather than on his subjective complaints which are less precise. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher 20 percent rating prior to November 12, 2014, and 50 percent rating thereafter, based on limitation of motion in the back. The Board has also considered the Court’s holdings in Mitchell, 25 Vet. App. 32, DeLuca, 8 Vet. App. 202, and Sharp, 29 Vet. App. 26 with regard to functional impact. However, the examination reports and clinical findings with regard to such factors do not reflect that his symptoms rise to the level to warrant a higher rating. There accordingly exists no basis for an underlying back condition rating in excess of 10 percent prior to November 12, 2014, or in excess of 40 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a rating in excess of 10 percent prior to October 24, 2014, and in excess of 20 percent thereafter for chronic left ankle sprain (left ankle condition) The Veteran asserts that his left ankle condition is more severe than a 10 percent rating prior to October 24, 2014, and more severe than a 20 percent rating thereafter. The Veteran is rated under Diagnostic Code 5271. Diagnostic Code 5271 assigns a 10 percent disability rating for moderately limited range of motion of the ankle and a 20 percent disability rating for markedly limited range of motion of the ankle. The words slight, moderate, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other Diagnostic Codes that relate to the ankle. See 38 C.F.R. 4.71a, Diagnostic Codes 5270 through 5274. Prior to October 24, 2014 In a January 2010 VA examination, the Veteran reported that his left ankle and foot were constantly painful, and his left ankle was frequently swollen, especially when he walked. He complained of left foot pain and left ankle pain at rest. The pain increased on weight bearing, or if he walked. He said that he wore an ankle brace when needed when he walked. He also wore orthotics. He said the orthotics and brace did help his foot and ankle condition. Otherwise, the Veteran did not report redness or increased heat of his foot or ankle. Relieving factors were orthotics and taking Motrin. The Veteran missed work about 3 days over the last year because of his left foot and ankle due to swelling and pain. The Veteran was not incapacitated because of his left foot and ankle. Upon examination, there was mild tenderness to palpation of the left lateral fibula and otherwise there was no swelling of the foot or ankle. Range of motion was the following: dorsiflexion to 15 degrees; plantar flexion to 30 degrees; inversion to 30 degrees; and eversion to 25 degrees. These ranges of motion did not elicit pain, and after 3 repetitions there was no loss of excursion due to pain, fatigue, weakness or lack of endurance. There was no abnormal shoe wear noticed. In the June 2010 notice of disagreement, the Veteran said that the VA examiner failed to address an MRI performed on his left foot from September 2009 that showed severe swelling for more than 2 months. The finding was positive for hairline fracture. In a July 2010 VA treatment record, it was noted that the Veteran had chronic left ankle discomfort for over 20 years. It was also noted that a September 2009 MRI found a fracture. There was no ankle pain at the time of the examination. In an October 2012 VA treatment record, the Veteran complained that his ankles hurt after 10 minutes of walking his dog. In an April 2013 VA treatment record, it was noted that the ankle joint range of motion was greater than 10 degrees with the knee extended. There was no pain during ankle joint dorsiflexion/plantar flexion. There was no pain during STJ inversion/eversion. In an August 2013 VA treatment record, it was noted that there were no deformities, pain, redness, or swelling. The physician noted that the left second MTP was slightly red and swollen, but otherwise MTPs were normal. From October 24, 2014 Initially, the Board notes that the October 2014 VA examination was found to be inadequate in the June 2018 Board remand because it did not comply with the Court findings in Correia or Sharp. Therefore, the Board will only consider the adequate parts of this VA examination for adjudication purposes. In an October 2014 VA examination, the Veteran said that his left ankle was weak and he could twist it easily. He had a brace for when the ankle was painful, and also iced his ankle to relieve the pain. The Veteran said he was a technician and his duties required a lot of standing with some walking. His ankles hurt when he stood more than 5 minutes. The Veteran described a burning pain, which went away when he was able to sit and rest. The Veteran described flare ups has having pain every day that did not go away until he took medication. The Veteran described functional loss as pain in both ankles with movement. He also reported mostly the left ankle felt as though something was loose in the joint. There was substantial pain on the left side. Upon examination, range of motion was the following: dorsiflexion to 20 degrees and plantar flexion to 5 degrees. Range of motion contributed to functional loss as the Veteran was unable to adequately flex his foot at the ankle due to extreme pain, fatigue, and instability. Pain was exhibited at both ranges of motion. There was evidence of pain with weight bearing. There was evidence of localized tenderness or pain on palpation. Specifically, there was pain along the lateral ankle, lateral and medial and plantar heel, and entire bottom of the foot. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. Range of motion was described as dorsiflexion to 20 degrees and plantar flexion to 5 degrees. The Veteran was not examined during a flare up; however, the Veteran reported severe, daily flare ups that could last hours. The examiner determined that the examination supported the Veteran’s statements describing functional loss during flare up. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare up. Range of motion was noted as dorsiflexion to 20 degrees and plantar flexion to 5 degrees. Additional contributing factors included swelling, instability of station, disturbance of locomotion, and interference with standing. Pain and swelling were noted as well as an abnormal antalgic gait. There was no muscle atrophy or ankylosis. Ankle instability or dislocation were noted. It was noted that the Veteran used a brace regularly and orthotics constantly. The Veteran stated that the ankle brace hurt his foot, so he used the brace at home. Orthotics were used for the plantar fasciitis. The examiner added that pain, weakness, fatigability, or incoordination could limit functional ability during flare ups, or when the joint was used repeatedly over a period of time. The examiner stated that he was unable to describe precisely how much limitation of range of motion the Veteran would experience during a flare up without resorting to mere speculation. The examiner stated that it was not possible without resorting to mere speculation to estimate either loss of range of motion or describe loss of function because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In an August 2019 VA examination, the Veteran stated that his left ankle continued to roll easily on uneven surfaces and caused flares. He continued to have recurrent sprains, with the last one occurring 1 month ago. This caused swelling/stiffness. He had tried a neoprene sleeve, but said this was painful. He also used ibuprofen and had steroid injections multiple times. His last steroid injection was about 4 years ago, with relief lasting for 2 weeks. The Veteran reported flare ups that occurred 6 or more times per year. The flare ups occurred with stepping wrong. Flare ups lasted a day and were relieved with rest and ice. The Veteran also reported functional loss which contributed to limitation in standing/walking along with back/knees. Upon examination, range of motion was the following: dorsiflexion to 5 degrees and plantar flexion to 40 degrees. Range of motion contributed to functional loss and was described as difficulty taking a full stride or climbing. Pain was noted at all ranges of motion. There was evidence of pain with weight bearing. There was evidence of localized tenderness or pain on palpation on the lateral ankle. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions and there was additional loss of function or range of motion. Pain caused functional loss. Range of motion was dorsiflexion to 0 degrees and plantar flexion to 40 degrees. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare up and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain significantly limited functional ability with flare ups. Range of motion was dorsiflexion to 0 degrees and plantar flexion to 0 degrees. Additional contributing factors included swelling, disturbance of locomotion, and interference with standing. There was no muscle atrophy or ankylosis. Ankle instability or dislocation was suspected. The Veteran used a neoprene sleeve for flare ups but this was not helpful. The examiner added that there was inversion at 30 degrees with pain at 30 degrees and eversion at 5 degrees with pain at 5 degrees. After 3 repetitions of inversion/eversion, range of motion reduced due to pain on left to eversion to 0 degrees. The remainder had no change in range of motion due to pain, fatigue, weakness, or lack of endurance. There was evidence of pain on passive range of motion. There was no evidence of pain on non-weight bearing. Additional post-service treatment records are silent for any evidence warranting an increased rating for the Veteran’s left ankle condition prior to October 24, 2014, and thereafter. Overall, the Board finds that the evidence of record does not show symptomatology warranting a rating in excess of 10 percent prior to October 24, 2014, and in excess of 20 percent thereafter. Prior to October 24, 2014, the evidence of record indicated that the Veteran had no worse than dorsiflexion to 15 degrees and plantar flexion to 30 degrees. As noted above, a 20 percent rating contemplates marked limitation of motion. The Veteran’s range of motion testing and complaints of pain would suggest that the Veteran had no more than moderate limitation of motion. Specifically, the range of motion testing came out close to normal upon examination. Further, from October 24, 2014, the evidence of record indicated that the Veteran had dorsiflexion to, at worse, 0 degrees after repetitive use and during a flare ups. As noted above, the Veteran receives a 20 percent disability rating from October 24, 2014. This is the highest disability rating under Diagnostic Code 5271 for limited motion of ankle. As no ankylosis was noted on any examination, the Board need not analyze the disability under Diagnostic Code 5270, ankylosis of the ankle. Additionally, as there is no evidence of record for ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or astragalectomy, no further analysis is required for those diagnostic codes (Diagnostic Codes 5272-5274). The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). Accordingly, because the Veteran has been assigned the maximum compensable rating for his orthopedic symptoms from October 24, 2014, he cannot be assigned any additional ratings under sections 4.40, 4.45, or 4.59 for any additional functional loss associated with pain on use or due to flare-ups. In sum, from October 24, 2014, the Board finds that the Veteran has received the highest allowable rating under the schedular criteria for his orthopedic symptoms, and an increase is denied. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his back. Layno, 6 Vet. App. 465. However, to the extent that he was asserting decreased range of motion in his left ankle, his lay description does not adequately rebut the medical evidence, including more recent testing, as discussed above. The Board places more probative value on the objective evidence of record, which is measured in degrees, rather than on his subjective complaints which are less precise. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher 20 percent rating prior to October 24, 2014. Again, the Veteran is already in receipt of the maximum rating from October 24, 2014, for his left ankle condition. There accordingly exists no basis for an underlying left ankle condition rating in excess of 10 percent prior to October 24, 2014, and in excess of 20 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. 3. Entitlement to a rating in excess of 10 percent for chronic right knee sprain with Osgood-Schlatter’s disease (right knee condition) The Veteran asserts that his right knee condition is more severe than a 10 percent disability rating. The Veteran’s right knee is rated under Diagnostic Code 5260. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion of the leg limited to 45 degrees. A 20 percent rating is warranted for flexion of the leg limited to 30 degrees. A 30 percent rating is warranted for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. A noncompensable rating is warranted for extension of the leg limited to 5 degrees. A 10 percent rating is warranted for extension of the leg limited to 10 degrees. A 20 percent rating is warranted for extension of the leg limited to 15 degrees. A 30 percent rating is warranted for extension of the leg limited to 20 degrees. A 40 percent rating is warranted for extension of the leg limited to 30 degrees. A 50 percent rating is warranted for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Other diagnostic codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5257 for recurrent subluxation or lateral instability, Diagnostic Code 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, Diagnostic Code 5262 for impairment of tibia and fibula, and Diagnostic Code 5263 for genu recurvatum. As these conditions are not shown on credible examination of the Veteran, or in the credible medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. In a June 2008 treatment record, the Veteran complained of right knee pain. In a January 2010 VA examination, the Veteran complained of pain with constant aching in his right knee. The pain was especially worse and flared up if he tried to bend his knee. The swelling was always tender and permanent. The knee did not give up, but did pop and the pain was a throbbing pain that mainly flared up when he walked. He could not walk more than half a mile. Flare ups of pain lasted for a few hours on average until he took the Motrin. The Veteran also had an occasional flare up when he woke up in the morning. He did not need to wear a knee brace and the pain did not get worse when he climbed stairs. He did not run because of his knee condition. He did not fall down due to his knee. The Veteran on average missed 3 days of work over the last year because of his right knee condition, mainly because the knee was so painful that he was unable to bear weight on it and walk. The Veteran was not incapacitated because of the right knee condition. Upon examination, the right knee showed evidence of bony prominence of the tibial tubercle, which was painful to palpation. Otherwise, there was no effusion, erythema, or increased warmth. There was no abnormal laxity of the ligament and both Lachman and McMurray test were negative. Range of motion was the following: flexion to 120 degrees; and extension to 0 degrees. Maximum range of motion was painful and after 3 repetitions, there was no loss of excursion due to pain, fatigue, weakness, and no lack of endurance. In the June 2010 notice of disagreement, the Veteran said that the moderate pain in his right knee was always present and was painful when standing. In an August 2013 VA treatment record, it was noted that there was no swelling or pain to palpation of the knee joints. In a May 2014 VA treatment record, it was noted that the right knee range of motion was up to 90 degrees, and was limited by pain. The Veteran had an antalgic gait. In a June 2014 physical therapy VA treatment record, it was noted that the Veteran’s knee was overall better and the pain was more tolerable. In a September 2014 VA treatment record, the Veteran complained of his right knee hurting more and the pain waking him up at night. The Board notes that the November 2014 VA examination was found to be inadequate in the June 2018 Board remand because it did not comply with the Court findings in Correia or Sharp. Therefore, the Board will only consider the adequate parts of this VA examination for adjudication purposes. In the November 2014 VA examination, the Veteran reported flare ups when he did heavy lifting. Functional loss also occurred when he did heavy lifting. Upon examination, the Veteran declined to test range of motion due to pain. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination supported the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because there was no conceptual or empirical basis for making such determination without directly observing function under these conditions. The Veteran was not examined during a flare up and the Veteran did not report flare up. The examiner determined that the examination supported the Veteran’s statements describing functional loss during flare ups. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups because there was no conceptual or empirical basis for making such determination without directly observing function under these conditions. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There were no assistive devices used. In a March 2015 VA treatment record, it was noted that the Veteran had right knee Osgood Schlatter disease with last flare up 1 week earlier. In a June 2019 VA examination, the Veteran said he took NSAIDs for pain control and some cream prescribed by the VA. The Veteran said he had also gone to physical therapy and wore a patellar band on the right knee most of the time, which stabilized his knee. The Veteran reported flare ups as occurring 4 times per month and described them as severe. These flare ups would last 2 to 3 days. Flare ups were precipitated by prolonged standing, stretching, and cold weather. They were alleviated by pain medication, ice/heat, and rest. The Veteran reported functional loss as limited exercise and prolonged walking. Upon examination, range of motion was the following: flexion to 40 degrees and extension to 0 degrees. The examiner found that range of motion itself contributed to functional loss. The examiner stated that based on range of motion during evaluation, it was significantly decreased which translated to functional loss. However, the examiner also found that based on observation, this result was unreliable. The Veteran was able to ambulate without problems. There was no limping and was able to get on the examining bed having the knees dangle bent at 90 degrees without problem. Once the Veteran would lay down, he stated the he could only flex to 40 degrees since more elicited too much pain. The examiner said this was discordant to ability to sit on the examining table with knee flexed at 90 degrees. Therefore, range of motion was unreliable. Pain was noted on exam on rest/non-movement. There was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. Severity was moderate related to Osgood Schlatter. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion after 3 repetitions. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. The examiner was not able to describe in terms of range of motion because the Veteran was not evaluated immediately after repetitive use over time. The examiner said that given history, medical record review, and examiner’s clinical judgment, he suspected that at end of day with repetitive use significant limited function. This was regardless of the examiner’s assessment that initial range of motion was unreliable. The Veteran was not examined during a flare up and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain significantly limited functional ability with flare ups. The examiner was able to describe in terms of range of motion as flexion to 20 degrees and extension to 0 degrees. When asked if there were any other contributing factors to the disability, the examiner stated that the exam was unreliable. The examiner explained that the Veteran was, on one hand, comfortably able to sit on the examining table with legs bent at knee at 90 degrees, but then during range of motion while laying down, his range of motion was significantly impacted. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability. The Veteran used a patellar brace for his Osgood Schlatter condition regularly. The examiner added that there was objective evidence of pain on passive range of motion and non-weight bearing testing. Additional post-service treatment records are silent for any evidence warranting an increased rating for the Veteran’s right condition. Overall, the Board finds that the evidence of record does not show symptomatology warranting a rating in excess of 10 percent. Initially, the Board notes that the June 2019 VA examiner noted the Veteran to have flexion to 40 degrees, and at worse to 20 degrees during a flare up. However, the VA examiner also determined that the test results were unreliable because the Veteran was found to be able to bend his knees to 90 degrees before the examination started. Therefore, the Board finds the June 2019 VA examination less credible in terms of range of motion testing. Therefore, as the November 2014 VA examiner was unable to test the Veteran’s range of motion, the Board will look at the June 2010 VA examination and VA treatment records. Specifically, the June 2010 VA examiner noted flexion to 120 degrees, and the May 2014 VA treatment record showed flexion to 90 degrees. As noted above, a 20 percent rating contemplates flexion limited to 30 degrees. There is no indication that the right knee had flexion limited to 30 degrees. A higher additional rating is also not available for limitation of extension as testing revealed full extension for and there is no evidence that the Veteran’s symptoms manifested in functional impairment comparable to extension limited to 15 degrees. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his back. Layno, 6 Vet. App. 465. However, to the extent that he was asserting decreased range of motion in his right knee, his lay description does not adequately rebut the medical evidence, including more recent testing, as discussed above. The Board places more probative value on the objective evidence of record, which is measured in degrees, rather than on his subjective complaints which are less precise. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher 20 percent rating based on limitation of motion in the right knee. The Board has also considered the Court’s holdings in Mitchell, 25 Vet. App. 32, DeLuca, 8 Vet. App. 202, and Sharp, 29 Vet. App. 26 with regard to functional impact. However, the examination reports and clinical findings with regard to such factors do not reflect that his symptoms rise to the level to warrant a higher rating. (Continued on the next page)   There accordingly exists no basis for an underlying right knee condition rating in excess of 10 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, 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.