Citation Nr: 21001735 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-18 324A DATE: January 11, 2021 ORDER 1. Entitlement to an increased rating of 20 percent for degenerative joint disease (DJD) of the lumbosacral spine is granted from April 12, 2011 to October 30, 2017. 2. Entitlement to an increased rating of 40 percent for DJD of the lumbosacral spine is granted from October 31, 2017 to July 15, 2020. 3. Entitlement to an increased rating in excess of 40 percent for DJD of the lumbosacral spine is denied. 4. Entitlement to a disability rating in excess of 10 percent for DJD of the right knee (“right knee disability”) is denied. 5. Entitlement to a disability rating in excess of 10 percent for DJD of the left knee (“left knee disability”) is denied. 6. Entitlement to a separate compensable 10 percent rating for instability of the right knee, beginning April 12, 2011, is granted. 7. Entitlement to a separate compensable 10 percent rating for instability of the left knee, beginning April 12, 2011, is granted. FINDINGS OF FACT 1. From April 12, 2011 to October 30, 2017, the Veteran’s back disability was productive of functional limitations that more closely approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. From October 31, 2017, the Veteran had forward flexion of the thoracolumbar spine limited to 30 degrees or less. 3. At no point during the appeal period has the Veteran had unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 4. For the entire rating period on appeal, the right knee disability manifested by decreased motion and pain, with flexion limited to no less than 40 degrees, and without evidence of ankylosis at any point during the appeal. 5. For the entire rating period on appeal, the left knee disability manifested by decreased motion and pain, with flexion limited of no less than 40 degrees, and without evidence of ankylosis at any point during the appeal. 6. For the entire rating period on appeal, the Veteran has had slight right lateral instability. 7. For the entire rating period on appeal, the Veteran has had slight left lateral instability. CONCLUSIONS OF LAW 1. From April 12, 2011 to October 30, 2017, the criteria for a 20 percent rating for DJD of the lumbosacral spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. From October 31, 2017 to July 15, 2020, the criteria for a 40 percent rating for DJD of the lumbosacral spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for a rating in excess of 40 percent for DJD of the lumbosacral spine are not met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The criteria for a disability rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5260. 5. The criteria for a disability rating in excess of 10 percent for a left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5260. 6. The criteria for a separate compensable disability rating of 10 percent for right knee lateral instability have been met for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. The criteria for a separate compensable disability rating of 10 percent for left knee lateral instability have been met for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1975 to October 1978, and from October 1979 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in August 2017, the Board remanded the issues on appeal for further evidentiary development and adjudication. During the pendency of the claim, the Veteran’s claim for an increased rating for the back was granted, in part, increasing the rating to 40 percent, effective July 16, 2020. However, the matter is still before the Board as the claim was not granted in full; the increase is reflected on the title page. The Board remanded the claim again in January 2020, in part, to secure outstanding relevant private treatment records. VA has sent multiple request to the Veteran to either send in records or submit a VA Form 21-4142 in order for VA to help the Veteran secure his records. To this date, the Veteran has not submitted any response or records. The Board finds that VA has fulfilled its duty to assist and the Board will proceed with the adjudication of the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. 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); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the rating claim was filed until a final decision is made. Separate ratings can be assigned for separate periods of time based on the facts found. This is a practice known as “staged” ratings. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25. However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Musculoskeletal System A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 1. Entitlement to an increased rating of 20 percent for DJD of the lumbosacral spine is granted from April 12, 2011 to October 30, 2017. 2. Entitlement to an increased rating of 40 percent for DJD of the lumbosacral spine is granted from October 31, 2017 to July 15, 2020. 3. Entitlement to an increased rating in excess of 40 percent for DJD of the lumbosacral spine is denied. The Veteran asserts that his DJD of the lumbosacral spine is worse than what the current ratings reflect. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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; 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. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that Intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran is currently in receipt of a 10 percent rating from August 1, 2002; 20 percent from October 31, 2017; and 40 percent from July 16, 2020 for his service connected DJD of the lumbosacral spine. As this is a non-initial increased rating claim, the period on appeal is from April 12, 2011, the date the Veteran filed his increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 Fed. Cir. (2010). The Veteran presented for a VA examination in July 2011. He was diagnosed with a lumbar strain and DJD of the lumbar spine. A history of fatigue, decreased motion, stiffness, weakness, and spine pain was noted. The Veteran reported severe aching, daily, lasting for hours. He also reported a sharp radiation of the pain in the left lateral hip. The Veteran noted he wore an elastic back brace every other day. The examiner noted that there was no abnormal spine curvature, including ankylosis, and that there was no atrophy, guarding, or weakness. The examiner noted pain with motion and tenderness. The examiner recorded initial range of motion measurements of forward flexion to 90 degrees. There was objective evidence of pain on active ranges of motion. There was objective evidence of pain following repetitive motion. There were no additional limitations after 3 repetitions of ranges of motion. Notably, no flare-ups were reported. The Board finds that the July 2011 VA examination is inadequate as objective evidence of pain is noted but the examiner fails to state, in terms of range of motion, where pain begins. Resolving all reasonable doubt in favor of the Veteran, the Board finds that from the date of the increased rating claim, April 12, 2011 until October 30, 2017, before the RO increased the rating, objective evidence of painful motion for forward flexion began at 60 degrees, warranting a 20 percent disability rating, as this is what the subsequent October 2017 VA examination, discussed in further detail below, revealed on forward motion. In other words, due to the inadequacy of the July 2011 VA examination, and as the October 2017 VA examination is more favorable to the Veteran, forward flexion to 60 degrees will be applied for this rating period. The Board notes that the Veteran denied flare-ups in the July 2011 VA examination, and as such, a 40 percent rating is not warranted. A 40 percent rating is also not warranted as objective testing did not indicate forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. To the extent that the Veteran experiences pain and functional loss associated with his back disability, the Board does not find that the related impairment equates forward flexion 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Accordingly, a 20 percent disability rating, but no higher, is warranted from April 12, 2011 to October 30, 2017. As the evidence does not support that the Veteran first became entitled to an increased rating during the one-year look back period, an increased rating prior to April 12, 2011, the date of claim for increase, is not warranted. See Gaston, supra. The Veteran presented for a VA examination in October 2017. He was diagnosed with DJD of the spine. The Veteran reported flare-ups but did not report having any functional loss or functional impairment of the back. Initial ranges of motion recorded forward flexion to 60 degrees. The range of motion itself did not contribute to functional loss. Pain was noted for forward flexion on the examination but did not cause functional loss. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the lower back, exhibiting tenderness. The Veteran was able to perform repetitive use testing with at least 3 repetitions, and there was no additional loss of function or range of motion after 3 repetitions. The Veteran was examined immediately after repetitive use over time, and 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 examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. Guarding and muscle spasm of the back were noted, but they did not result in abnormal gait or abnormal spinal contour. Additional contributing factors of the back disability included disturbance of locomotion and interference with standing. There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. The Veteran did not have any other neurologic abnormalities or findings related to his back disability. The Veteran did not use assistive devices. There was no functional impact on the Veteran’s ability to work due to his back disability. The Veteran presented for another VA examination in July 2020. The Veteran was diagnosed with IVDS and DJD of the lumbosacral spine. The Veteran reported that his back pain persists, and that the back pain radiates down his left hip and the left thigh with burning sensation and numbness. He also reported that his back pain is constant, all the time, sometimes with a burning sensation, and sometimes with stiffness radiating down the left hip to the left thigh. The Veteran did not report flare-ups. The Veteran reported functional loss in that it is difficult to stand for long periods, and that the pain is worse with walking as it radiates to the left hip. The initial ranges of motion for forward flexion were to 30 degrees. Ranges of motion did not contribute to functional loss. Pain was noted on the examination during forward flexion, extension, right lateral flexion, and left lateral flexion. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the lumbar spine with a level 9 severity. The Veteran was able to perform repetitive-use testing with at least 3 repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was examined immediately after repetitive use over time, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm of the back. There were no additional contributing factors to his disability or muscle atrophy. The Veteran was unable to perform the straight leg raising test. It was noted that the Veteran had severe radicular pain in the lower left extremity for constant pain, paresthesias and/or dysesthesias, and numbness, with a mild level of severity of radiculopathy. There was no ankylosis. The Veteran had IVDS, but no bed rest was prescribed by a physician. The Veteran reported he occasionally used a brace for knee pain. The examiner noted that the back disability functionally impacts the ability to work in that it requires lifting heavy objects. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the back; there was no evidence of pain on non weight bearing testing of the back; and that the lumbar radiculopathy pain was due to nerve irritation secondary to the Veteran’s degenerative disease of the lumbar spine. After reviewing the evidence, the Board finds that, from October 31, 2017, the Veteran’s disability picture is best embodied in the criteria for a 40 percent rating. The Board notes that the Veteran denied flare-ups in the July 2020 VA examination and had forward flexion limited to 30 degrees, but endorsed flare-ups during the October 2017 VA examination and had a forward flexion limited to 60 degrees when not flared. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the level of pain experienced in the July 2020 VA examination was the same pain present during a flare-up as noted in the October 2017 VA examination. In other words, from October 2017, the Board finds that during a flare-up of pain the Veteran’s forward flexion was limited by 30 degrees. As the Veteran’s forward flexion was 60 degrees prior to a flare-up in October 2017, the Board finds that during a flare-up, in October 2017, forward flexion would be limited to 30 degrees. A disability rating in excess of 40 percent is not warranted for any time during the period on appeal as there was no unfavorable ankylosis of the entire thoracolumbar spine. Accordingly, from October 31, 2017, a 40 percent disability rating, but no higher, is warranted. To the extent that the Veteran has radiculopathy of the left lower extremity, the Veteran is already service-connected for that disability. If he feels that that disability has worsened, he is encouraged to file a claim for an increase. No other compensable disabilities related to the back are identified in the evidence of record. To the extent that the Veteran has a diagnosis of IVDS, there were no incapacitating episodes requiring bed rest prescribed by a physician. Accordingly, the medical evidence does not support a rating under DC 5243. 4. Entitlement to a disability rating in excess of 10 percent for a right knee disability is denied. 5. Entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. 6. Entitlement to a separate 10 percent rating for instability of the right knee, beginning April 12, 2011, is granted. 7. Entitlement to a separate 10 percent rating for instability of the left knee, beginning April 12, 2011, is granted. The Veteran asserts that his bilateral knee disability is worse than the current ratings reflect. Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis under DC 5003, which is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010. Under DC 5260, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, a 20 percent rating is warranted for limitation of extension to 15 degrees, a 30 percent rating is warranted for limitation of extension to 20 degrees, a 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. 38 C.F.R. § 4.71, DC 5261. The Veteran is currently in receipt of a 10 percent rating for his service-connected knee disability. As this is a non-initial increased rating claim, the period on appeal is from April 12, 2011, the date the Veteran filed his increased rating claim, plus the one-year “look back” period. See Gaston, supra. The Veteran presented for a VA examination in July 2011 for a bilateral knee disability. He was diagnosed with DJD of the right and left knees. For the right knee, the Veteran endorsed symptoms of giving way, instability, pain, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation (several times a week), locking episodes (several times a week), and swelling and tenderness. For the left knee the Veteran endorsed symptoms of deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of the joint motion, episodes of dislocation or subluxation (several times a week), warmth, swelling, and tenderness. The Veteran reported that he wore an elastic knee brace daily except for sleeping. It was noted that the weight bearing joint was affected but that he had a normal gait. For the right knee there were findings of crepitus with flexion and extension; no clicks or snaps; no grinding; and no instability. There was of a positive “shrug test”. For the left knee, there were findings of crepitus, guarding of movement, with flexion and extension; no clicks or snaps; no grinding; no instability. The was a finding of patellar abnormality with a positive “shrug test”. For both knees there was no effusion. There were no other knee abnormalities. There was objective evidence of pain with active motion on both knees. Left flexion was recorded to 95 degrees with normal extension. Right flexion was recorded to 117 degrees with normal extension. There was no joint ankylosis. Notably, no flare-ups were reported for either knee. The Veteran presented for another VA examination in October 2017. He was diagnosed with degenerative arthritis in both of his knees. The Veteran reported flare-ups. For the initial ranges of motion for the right knee, forward flexion was reported at 90 degrees and extension was normal. For initial ranges of motion for the left knee, forward flexion was reported at 100 degrees and extension was normal. For both knees range of motion itself did not contribute to functional loss; pain on forward flexion was noted on the examination but did not result in/cause functional loss; there was evidence of pain with weight-bearing; there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; and there was objective evidence of crepitus. For both knees, the Veteran was able to perform repetitive use testing with at least 3 repetitions and there was no additional functional loss or range of motion after 3 repetitions. For both knees, the Veteran was examined immediately after repetitive use over time, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. For both knees, the additional factors of disturbance of locomotion and interference with standing contributed to the bilateral knee disability. For both knees there was no muscle atrophy, ankylosis, history of recurrent subluxation, history of lateral instability, or a history of recurrent effusion. Joint stability testing was performed for both knees and neither knee had joint instability. For both knees, it was noted that the Veteran has not had a tibial or fibular impairment and has never had a meniscus condition. The Veteran reported that he does not use assistive devices as a normal mode of locomotion. It was noted that the Veteran’s bilateral knee disability does not functionally impact his ability to work. There was an addendum opinion submitted in October 2017 noting right knee range of motion for forward flexion to 90 degrees and left knee range of motion for forward flexion to 100 degrees. It was also noted that there was evidence of pain with passive range of motion testing and no evidence of joint pain with non weight bearing. The Veteran presented for a VA examination in July 2020. There was diagnosis of bilateral knee joint osteoarthritis. The Veteran reported he had a meniscal repair in the left knee in May 2013 and there was no improvement in the pain. The Veteran also stated that the pain was a constant shooting pain and felt like pressure in his knees. Notably, the Veteran did not report flare-ups. The Veteran reported having functional loss or functional impart to his knees in that he has difficulty standing for long hours and that walking aggravates the pain. For ranges of motion for both knees, forward flexion was to 40 degrees and extension was normal. For both knees the ranges of motion themselves did not contribute to functional loss; pain was noted on the examination but did not result in or cause functional loss; pain was exhibited on flexion and extension; there was evidence of pain with weight bearing; there was objective evidence of localized tenderness or pain on palpation of on the anterior midline, medial side, which had a severity level of mild in relationship to knee; and there was no objective evidence of crepitus. For both knees, the Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion with 3 repetitions. For both knees the Veteran was examined immediately after repetitive use over time, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There were no additional factors contributing to the disability for either knee. There was no muscle atrophy, ankylosis, a history of recurrent subluxation, a history of lateral instability, or recurrent effusion. For both knees joint stability was performed and there was no joint instability. The Vet has had “shin splints” in both knees but this condition did not affect ranges of motion for the knee or the ankle. The Veteran has had a meniscal tear and has had surgery to repair the left knee. There is a notation that a meniscectomy was performed in May 2013. The Veteran reported that he occasionally uses a brace. The examiner noted the Veteran’s knees limit his ability to do work in that he cannot stand for long periods or climb stairs. The examiner noted that there is objective evidence of pain on passive range of motion testing of the left knee; there is no evidence of pain on non-weight bearing testing of the left knee; there is objective evidence of pain on passive range of motion testing of the right knee; and that there is no evidence of pain on non-weight bearing testing of the right knee. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for a bilateral knee disability (other than the grant of separate compensable ratings for instability, discussed below). In this regard, the Board notes that there is no indication from the record that the Veteran had bilateral knee flexion limited to 30 degrees or less, or bilateral knee extension to 15 degrees or more. In fact, the Veteran has been shown to have bilateral knee flexion limited to, at worst, 40 degrees and full extension, even after accounting for the effects of repeated use over time and flare ups. As discussed below, for the entire period on appeal, the Veteran has been assigned the 10 percent rating based solely on painful motion without significant limitation in either extension or flexion. Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for either the left or right knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261. The Board finds that the Veteran is entitled to separate ratings of 10 percent for lateral instability in the left and right knees for the entire period on appeal because the weight of the evidence demonstrates that the Veteran had slight recurrent subluxation or lateral instability of the bilateral knees. In this regard, the Board notes that the Veteran has experienced giving way, disturbance of locomotion, and used assistive devices to support the knees. Nonetheless, VA examination report findings yielded normal joint stability and there were no objective signs of subluxation or lateral instability. Therefore, the Board finds that separate 10 percent ratings, but no higher, is warranted under Diagnostic Code 5257 for both the left and right knees. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that there is no competent medical evidence of frequent episodes of “locking,” and effusion into the joint ratable under Diagnostic Code 5258, for either knee. Additionally, where the knee remains symptomatic following removal of the semi-lunar cartilage (meniscus), the disability will be rated at 10 percent under DC 5259. As noted above, the Veteran underwent a meniscal repair surgery in his left knee. However, the same symptoms cannot be compensated twice under different rating codes. 38 C.F.R. § 4.14. Since the Veteran is already compensated at 10 percent for both knees for symptoms of pain and limitation of motion, an additional or higher rating under DC 5259 is not available absent any uncompensated symptoms. Additionally, as there is no evidence of record showing that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, Diagnostic Codes 5256, 5262, and 5263, respectively, are not applicable. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to a rating in excess of 10 percent for the Veteran’s left and right knee disabilities, other than the grant of separate compensable disability ratings under DC 5257, is not warranted. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 4.3 , 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.