Citation Nr: 21001568 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-54 131 DATE: January 11, 2021 ORDER A reduction of the rating for the Veteran’s left knee disability from 30 percent to 10 percent was not proper; the 30 percent rating is restored effective August 21, 2019. Prior to November 9, 2016, a rating higher than 10 percent for limitation of motion of the left knee, is denied. Since November 9, 2016, a rating higher than 30 percent for limitation of motion of the left knee, is denied. A rating higher than 10 percent for limitation of motion of the right knee, is denied. Entitlement to a separate rating of 10 percent for left knee instability is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate rating of 10 percent for right knee instability is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to sleep apnea, including as secondary to service-connected back and bilateral knee disabilities, is remanded. Entitlement to a compensable rating for status post right side rib fracture, is remanded. Entitlement to a rating higher than 10 percent for a thoracolumbar spine (back) disability, is remanded. FINDINGS OF FACT 1. In an August 2019 rating decision, the RO reduced the rating for limitation of flexion of the left knee from 30 percent to 10 percent, effective August 21, 2019. 2. The decision to reduce the rating from 30 percent to 10 percent for left knee limitation of flexion, effective August 21, 2019, was not carried out in accordance with applicable procedures and is void ab initio. 3. Prior to November 6, 2016, the most probative evidence of record shows that the Veteran’s left knee disability was manifested by painful limitation of motion and flexion limited to no more than 120 degrees and normal extension; ankylosis, or cartilage damage was not objectively demonstrated. 4. Since November 6, 2016, the most probative evidence of record shows that the Veteran’s left knee disability has been manifested by painful limitation of motion and flexion limited to no more than 50 degrees and normal extension, and reports of flare ups of left knee symptoms, during which knee motion was limited by no more than 10 degrees; ankylosis, or cartilage damage was not objectively demonstrated. 5. The most probative evidence of record shows that the Veteran’s right knee disability has been manifested by painful limitation of motion and flexion limited by no more than 60 degrees and normal extension, and reports of flare ups of right knee symptoms, during which knee motion was limited by no more than75 degrees; ankylosis was not objectively demonstrated. 6. Throughout the entire period on appeal, the most probative evidence of record shows that the Veteran has had slight left knee instability. 7. Throughout the entire period on appeal, the most probative evidence of record shows that the Veteran has had slight right knee instability. CONCLUSIONS OF LAW 1. The reduction in rating for left knee limitation of flexion from 30 percent to 10 percent, effective August 21, 2019, was not proper, and is void ab initio; the criteria for restoration of the 30 percent rating effective August 21, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 4.71a, Diagnostic Codes (DCs 5002-5260) (2019). 2. Prior to November 9, 2016, a rating higher than 10 percent for limitation of flexion of the left knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5002-5260 (2019). 3. Since November 9, 2016, a rating higher than 30 percent for limitation of flexion of the left knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5002-5260 (2019). 4. The criteria for a rating higher than 10 percent for limitation of motion of the right knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5099-5019 (2019). 5. Criteria for a separate 10 percent rating is warranted for instability of the left knee. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257 (2019). 6. Criteria for a separate 10 percent rating is warranted for instability of the right knee. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1985 to March 2009. These matters are on appeal from an October 2016 rating decision. Propriety of Rating Reduction- Left knee limitation of flexion Historically, an April 2009 rating decision granted service connection and assigned a 10 percent rating for left and right knee patellofemoral syndrome, effective April 1, 2009. In May 2016, the Veteran filed his current claim for an increased rating for his right knee disability. An October 2016 rating decision continued the 10 percent ratings for the left and right knee. A January 2018 rating decision increased the rating for the Veteran’s left knee disability from 10 percent to 30 percent, effective November 9, 2016. An August 2019 rating decision decreased the rating from 30 percent to 10 percent, effective August 21, 2019. At the time of the RO’s August 2019 rating decision, the Veteran’s 30 percent rating for his left knee disability had not been in effect for more than 5 years, so it was not a protected rating pursuant to 38 C.F.R. § 3.951. The provisions of paragraphs § 3.344(a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. See 38 C.F.R. § 3.344 (c) (2019). The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period. In addition, although the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. A review of the RO’s August 2019 rating decision shows that the RO appears to have essentially analyzed the issue of reduction of the 30 percent evaluation just as it would a claim for an increased rating. Specifically, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344 in its analysis. Of particular note, at no time did its analysis discuss the issue of whether there was “an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Id.; Brown. The August 2019 decision merely discussed the rating criteria. In summary, it does not appear that the RO’s rating reduction was in compliance with 38 C.F.R. § 3.344 and Brown. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i .e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant’s rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Since the rating decision that accomplished the reduction of the 30 percent evaluation for the Veteran’s left knee limitation of flexion did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 30 percent rating, effective on the date of the reduction. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). Increased Rating Claims Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (991). The Board will also 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, “for the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints,” whereas “multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities... are considered groups of minor joints, ratable on a parity with major joints.” 38 C.F.R. § 4.45 (f). When a specific diagnosis is not listed in the Rating Schedule, 38 C.F.R. § 4.27 provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and “99.” See 38 C.F.R. § 4.20. The Veteran contends that his service-connected right and left knee disabilities are more severe than his current evaluations, would indicate. Regarding the right knee, an April 2009 rating decision granted service connection for patellofemoral syndrome with arthritis, rated 10 percent disabling under DCs 5099-5019, effective April 1, 2009. In May 2016, the Veteran filed his current claim for an increased rating for his bilateral knee disability. Regarding the left knee, an April 2009 rating decision granted service connection for patellofemoral syndrome with arthritis, rated 10 percent disabling under DCs 5003-5260, effective April 1, 2009. A January 2018 rating decision increased the rating for the Veteran’s left knee limitation of flexion from 10 percent to 30 percent, effective November 9, 2016. An August 2019 rating decision decreased the rating from 30 percent to 10 percent, effective August 21, 2019, which has herein been restored. Under Diagnostic Code 5019, bursitis will be rated on limitation of motion of affected parts as arthritis, degenerative. 38 C.F.R. § 4.71a, DC 5019. Under Diagnostic Code 5257, a 10 percent rating is assigned where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003 further states that, where 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 affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Where a Veteran has degenerative joint disease, which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, VA treatment records include an August 2015 X-ray examination of the Veteran’s left knee which was normal. He complained of progressively worsening left knee disability and wore knee sleeves. On September 2016 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) the medical officer diagnosed bilateral patellofemoral pain syndrome and degenerative arthritis. The Veteran complained that his right knee disability was aggravated by descending stairs. Anteromedial right knee pain was greater than the left knee with aching and stiffness. He also experienced sharp pain with sudden pivots and described near buckling of the right knee. His right knee disability improved with rest and NSAIDs, but was aggravated by prolonged sitting and walking. He was also unable to exercise regularly due to bilateral knee pain. Range of motion measurements of the left and right knee indicated 120 degrees flexion and normal extension. Pain was noted during flexion and caused functional loss and was evident with weight-bearing. There was objective evidence of crepitus and localized tenderness or pain on palpation of the knee consistent with patellofemoral syndrome. Regarding repetitive use testing, he was able to perform repetitive use testing with at least three repetitions. Muscle strength testing was normal without evidence of atrophy. Joint stability tests were normal without evidence of recurrent effusion. However, he regularly wore a brace on his right knee for support. There was no evidence of recurrent patellar dislocation or any other tibial and/or fibular impairment. There was no history of any meniscus disability. X-ray examination of the right knee indicated mild degenerative changes most consistent with progression of the patellofemoral syndrome. The bilateral knee disability made him unable to crawl, climb, squat, or kneel due to pain and stiffness. The medical officer diagnosed bilateral patellofemoral syndrome with bilateral degenerative joint disease. VA treatment records include a September 2016 report which indicates complaints of bilateral knee pain and the Veteran’s complaint that knee sleeves were no longer helpful. An X-ray examination indicated mild medial joint space narrowing and small effusion. In January 2017 he received bilateral knee injections. A January 2017 orthopedic consultation report indicates a complaint of right knee pain, tenderness at the medial joint, a sensation of instability within any twisting, excruciating knee pain walking downstairs, and pain with prolonged sitting or standing. On examination there was trace effusion of the left knee, but no effusion of the right knee. He actively fully extended both knees. Left knee flexion was greater than 90 degrees, but there was right knee discomfort with flexion, even to 90 degrees. Knees were stable to valgus/varus stress in full extension. Anterior drawer tests were negative, bilaterally. A February 2017 MRI of the right knee revealed a complex tear of the body and posterior horn of the medial meniscus with partial extrusion, tricompartmental osteoarthritis, mild to moderate in the medial compartment with cartilage thinning and fissuring, and a Baker’s cyst. A March 2017 VA physical therapy evaluation noted that the Veteran’s prolonged standing and change of positions from lying down or sitting to standing caused increased pain rated 8 out of 10 on the pain scale. An orthopedic note indicated complaints of tenderness at the medial joint, sensation of instability with any twisting, excruciating knee pain walking downstairs, and pain with prolonged sitting or standing. He gained 70 pounds in the past few years because he could not tolerate the elliptical or find another form of exercise which was both enjoyable and did not exacerbate his pain. Regarding employment, he worked for the Marine Corps frequently traveled for work and stood up to 7 hours a day while teaching. He noted some residual left knee pain and right medial knee pain without improvement from medication. The Veteran wore a neoprene sleeve on the right knee. A March 2017 report indicates right knee instability for which he wore a right knee brace. An arthroscopy report indicates a preoperative diagnosis of right knee meniscus tear. A physical therapy report indicates that prolonged standing caused knee pain. Range of motion measurements of the right knee indicated normal extension and 120 degrees flexion. There was a painful medial joint line and positive McMurray test with stable ligaments. That month the Veteran underwent right knee arthroscopy and medial meniscus debridement. A May 2017 report shows improvement in the right knee disability. A July 2017 report indicates that the right knee felt much better and he was able to increase activity. The assessment was right knee status post scope for debridement of MMT. He was doing well and appropriate exercises were recommended with consideration of his Grade 3 cartilage loss in some areas. He had occasional left knee pain. On November 2017 VA knee and lower leg conditions DBQ examination patellofemoral pain syndrome with arthritis of the left knee was diagnosed. Regarding flare-ups, the Veteran did not indicate flare-ups of the right knee, but flare-ups of the left knee were described as sharp throbbing pain when carrying heavy items. He had functional loss or impairment of the joint described as an inability to walk for prolonged periods of time. Right knee range of motion measurements indicated normal extension with 60 degrees flexion with pain. There was evidence of pain with weight-bearing. Range of motion contributed to functional loss. The Veteran was unable to sit or stand for prolonged periods of time. There was objective evidence of localized tenderness or pain on palpation of the joint or soft tissue described as mild soft tissue tenderness, but no evidence of crepitus. After repetitive-use testing there was no additional loss of function or range of motion. With repeated use over time, pain, fatigue, weakness, lack of endurance and incoordination significantly limited functional ability. Described in terms of range of motion measurements this amounted to normal extension with 35 degrees flexion. Regarding flare-ups, the medical office did not provide any findings for the right knee. Additional contributing factors to the right knee disability included weakened movement due to muscle injury and instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was 3/5 for active movement against gravity. Left knee range of motion measurements indicated normal extension and 50 degrees flexion with pain. There was objective evidence of localized tenderness or pain on palpation of the joint or soft tissue described as mild soft tissue tenderness, but no evidence of crepitus. He was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. There was additional loss of function or range of motion caused by pain, fatigue, weakness, lack of endurance, and incoordination. After repetitive-use testing he had normal extension and 50 degrees flexion. With repeated use over time, pain, fatigue, weakness, lack of endurance and incoordination significantly limited functional ability. Described in terms of range of motion measurements there was normal extension with 10 degrees flexion. During flare-ups pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability. In terms of range of motion measurements, this amounted to 10 degrees flexion and normal extension. Additional factors contributing to disability include weakened movement, instability, disturbance of locomotion and interference with sitting and standing. Muscle strength testing was 0/5 for no muscle movement with a reduction in muscle strength. There was no evidence of muscle atrophy or ankylosis. Regarding joint stability tests, there was no history of recurrent subluxation or lateral instability of the left or right knee. There was no evidence of recurrent patellar dislocation or meniscal disabilities. However, he regularly wore braces during flare-ups and the medical officer opined that his bilateral knee disability impacted his ability to perform occupational tasks. Regarding Correia, there was objective evidence of pain on passive range of motion testing and objective evidence of pain on non-weight bearing testing of the left and right knee. In an October 2017 statement, the Veteran stated that his bilateral knee disability caused immobilization which resulted in severe weight gain and caused additional pain and damage to both knees. He had difficulty with prolonged standing which affected his job duties including presentations which were curtailed due to disabling pain which resulted in incapacitation. He had an altered gait and incapacitating episodes which resulted in an inability to complete all tasks related to his job when required standing. He also had limitations with his family, including an inability to interact with his children while playing sports and was unable to attend some of their events due to pain. He consistently reported incapacitation in relation to his work duties and prolonged pain. Regarding his right knee, the Veteran noted that he initially had no joint effusion on X-ray examination, but stated that an MRI revealed a complex tear of the body and posterior horn of the medial meniscus with partial extrusion and associated posterior para meniscal cyst. He was determined to be a candidate for right knee surgery. He said that his left knee disability was the mirror image of his right knee, but had not undergone an MRI. He complained that the evaluation and determination of his right knee disability failed to account for the internal damage to his right knee or consider the progressive nature of his disability which would ultimately result in knee replacement. He disagreed with range of motion measurements of his right knee which he said did not account for pain. He disagreed with the initial determination, because it did not take into consideration his congruent knee and hip pain, reported altered gait, physical condition of his right knee which required surgery, and the lack of specification of range of motion with and without pain. He also stated that the decision did not take into consideration the consistent reported history of his work impairment and incapacitation due to chronic pain associated with his bilateral knee disability. On August 2019 VA knee and lower leg conditions DBQ examination, the diagnoses included bilateral patellofemoral syndrome with arthritis and right knee meniscal tear. The Veteran presented with complaints of increased pain which ranged from 3 to out of 10 on the pain scale a good day to 10 out of 10 on the pain scale with shooting pain. He had undergone physical therapy and injections, daily exercises, and wore knee braces. He complained of left knee locking and limited movement which occurred up to two times per week rated 10 out of 10 in severity and lasted one day. Functional loss or impairment was described as an inability to standing/sitting for prolonged periods of time, prolonged walking or running, and decreased range of motion. Range of motion measurements of the right and left knee right knee indicated normal extension with 80 degrees flexion with pain. Pain was noted on examination, but did not cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was tenderness to palpation of tissue surrounding the patella rated 3 out of 10 on the pain scale. There was evidence of pain with weight bearing, but no objective evidence of crepitus. After repetitive use testing, there was no additional loss of function or range of motion. With repeated use over time, pain significantly limited functional ability. Described in terms of range of motion, extension was normal with 75 degrees flexion. Regarding flare-ups, pain significantly limited functional ability and amounted to normal extension and 75 degrees flexion. Muscle strength testing was normal with no evidence of ankylosis, bilaterally. On joint stability tests, there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Regarding meniscal disabilities, he had a meniscal tear of the right knee and a history of right knee arthroscopy in 2017. He occasionally wore a brace. There was evidence of degenerative arthritis, bilaterally. Regarding the functional impact of the Veteran’s bilateral knee disability, it impacted his ability to perform any type of occupational task. However, as a defense contractor he lost no more than one week in the last 12 months due to his bilateral knee disability. In his current position he was required to go into the field and instruct active duty personnel on equipment operations. He was also required to stand for 8 hours on a platform. His bilateral knee disability interfered with prolonged standing and walking. Regarding Correia there was objective evidence of pain when the joint was used in weight bearing and non-weight bearing. 1. Left knee limitation of motion The Veteran’s left knee limitation of flexion is currently rated as 10 percent disabling prior to November 6, 2016, and as 30 percent disabling since November 6, 2016, pursuant to DC 5260. After a review of the evidence, the Board finds that a rating higher than 10 percent prior to November 6, 2016, for limitation of motion of the left knee is not warranted. The medical evidence shows that the Veteran’s left knee disability is manifested by pain on motion. Left knee flexion was not limited to 45 degrees and extension was not limited to 10 degrees. Rather, range of motion testing of the left knee indicated normal extension with flexion limited by no more than 120 degrees. Under Diagnostic Codes 5260 and 5261, the limitation of motion of the left knee does not reach the level of a compensable evaluation. Instead, the Veteran has been afforded a10 percent evaluations for painful or limited motion of the left knee. A higher evaluation is not warranted. Since November 6, 2016, the Board finds that a rating higher than 30 percent for limitation of motion of the left knee is not warranted. Left knee flexion was limited by no more than 10 degrees during flare-ups with normal extension for which a maximum rating of 30 percent has been assigned under Diagnostic Code 5260. Under Diagnostic Code 5261, normal extension of the left knee does not reach the level of a compensable evaluation. As a compensable rating is assigned under Code 5260, and the provisions of 38 C.F.R. § 4.59 mandating a minimal compensable evaluation for a painful joint do not specify a plane of motion, an additional, separate 10 percent rating under DC 5261/§ 4.59 would constitute prohibited pyramiding. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Regarding the DeLuca factors, the Board observes that VA medical officers have noted the Veteran’s complaints such as pain and difficulty walking and standing. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the left knee has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran’s left knee disability more closely approximate a 20 percent rating prior to November 6, 2016. Since November 6, 2016, the Veteran has been in receipt of a maximum 30 percent rating for his left knee disability. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent prior to November 6, 2016, or higher than 30 percent since November 6, 2016, for the left knee due to limitation of flexion or extension. While the Board accepts the contentions of the Veteran that his left knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation prior to November 6, 2016, and higher than 30 percent since November 6, 2016, the Board has taken that into account in its consideration of the range of motion of the Veteran’s left knee. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 2. Left knee instability After review of the evidence and resolving reasonable doubt in the Veteran’s favor, the Board finds that the record reflects that Veteran is entitled to a separate 10 percent disability rating for his left knee instability. In this regard, although the VA examinations did not indicate instability of the left knee, the Veteran has reported occasional use of a knee brace or sleeve for instability. Accordingly, the Board finds that a rating of 10 percent is warranted for left knee instability under Diagnostic Code 5257. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the left knee, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. 3. Right knee limitation of motion The Veteran’s right knee limitation of motion currently rated as 10 percent disabling pursuant to DC 5019 for painful motion. After a review of the evidence, the Board finds that a rating higher than 10 percent for limitation of motion of the right knee is not warranted. The medical evidence shows that the Veteran’s right knee disability is manifested by pain on motion. Right knee flexion was not limited to 45 degrees and extension was not limited to 10 degrees. Rather, range of motion testing of the right knee indicated normal extension with flexion to no less than 60 degrees. Under Diagnostic Codes 5260 and 5261, the limitation of motion of the right knee does not reach the level of a compensable evaluation. Instead, the Veteran has been afforded 10 percent evaluations for painful or limited motion of the right knee. A higher evaluation is not warranted. Regarding the DeLuca factors, the Board observes that VA medical officers have noted the Veteran’s complaints such as pain and difficulty walking and standing. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the right knee has not been shown such that a higher rating would be warranted. See Thompson, supra. The Board finds that the evidence does not support a finding that the Veteran’s right knee disability more closely approximate a 20 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for the right knee due to limitation of flexion or extension. While the Board accepts the contentions of the Veteran that his right knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran’s right knee. The rating schedule does not require a separate rating for pain itself. Spurgeon, supra. Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 4. Right knee instability After review of the evidence and resolving reasonable doubt in the Veteran’s favor, the Board finds that the record reflects that Veteran is entitled to a separate 10 percent disability rating for his right knee instability. In this regard, although the VA examinations did not indicate instability of the right knee, the Veteran has reported occasional use of a knee brace or sleeve for instability. Accordingly, the Board finds that a rating of 10 percent is warranted for right knee instability under Diagnostic Code 5257. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. In this regard, the Board finds that a separate 10 percent evaluation is not warranted for the right knee under Diagnostic Code 5259 for the symptomatic removal of semilunar cartilage. Although the Veteran has been diagnosed with a meniscal tear of the right knee, there is no indication that his semilunar cartilage was removed during his 2017 arthroscopic surgery. The Board further finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Code 5258 for his right knee meniscal tear. Under Diagnostic Code 5258, a 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. However, there is no evidence of some effusion and locking, the evidence does not show that he has frequent episodes of locking and effusion. Accordingly, separate 20 percent ratings are not warranted for a meniscal tear of right knee under DC 5258. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the right knee, impairment of the tibia and fibula, or genu recurvatum. Accordingly, Diagnostic Codes 5256, 5262, and 5263 are not for consideration. Additional considerations In this case, the Veteran is competent to report complaints such as difficulty with prolonged standing and standing and difficulty walking, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously (this is the basis for the increased rating for bilateral knee instability assigned herein). He is not, however, competent to identify a specific level of disability of his bilateral knee disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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. REASONS FOR REMAND 1. Service Connection Claim The Veteran contends that he has sleep apnea secondary to his service-connected bilateral knee and back disabilities and obesity as an intermediate step. See, January 2020 Brief. In a recent decision, the Court of Appeals for Veterans Claims (Court) held that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Additionally, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a). On remand, an opinion should be obtained addressing whether the Veteran’s service connected disabilities aggravated, or worsened (increased), the Veteran’s obesity. See Ward v. Wilkie, 31 Vet. App. 233, 237-38 (2019), (finding that the proper standard in an aggravation inquiry is not whether there was “permanent worsening” but rather “any increase” in disability). 2. Increased Rating Claims The Veteran contends that his service-connected back and rib disabilities are more severe than his ratings indicate. See, October 2017 statement. However, he has not been afforded recent VA examinations to assess the current severity of his disability. Accordingly, these rating claims should be remanded for new VA examinations. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination which addresses the nature and etiology of any sleep disorder, to specifically include sleep apnea. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should provide the following opinion: a) Is it at least as likely as not (50 percent or more probability) that any sleep disorder, to specifically include sleep apnea, diagnosed at any time during the course of the appeal, had its onset in or is etiologically-related to the Veteran’s active duty service? b) If the answer to part (a) above is “no,” is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep disorder is (a) proximately due to or the result of the Veteran’s service-connected back and bilateral knee disabilities, or (b) aggravated (any incremental increase in the obstructive sleep apnea beyond its normal progression) by her service-connected back and bilateral knee disabilities? If it is determined that the sleep disorder is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. (i) Is it at least as likely as not (50 percent or more probability) that obesity served as an “intermediate step” between the Veteran’s service-connected disabilities and his sleep disorder? (ii) If so, was the obesity that resulted from, or was aggravated by, the service-connected disabilities a substantial factor in causing his sleep disorder? (iii) Would the sleep disorder apnea not have occurred, but for the obesity caused by or aggravated by the service-connected disabilities? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements and complaints concerning his sleep disorder symptoms, including those made to medical providers and as noted in the January 2020 Appellant’s Brief, November 2016 Notice of Disagreement, and October 2017 statement. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. 2. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected back and bilateral knee disabilities. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination reports should reflect that such a review was conducted. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran’s flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or a deficiency in the record (additional facts are required). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.