Citation Nr: 21004036 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-18 687A DATE: January 25, 2021 ORDER Entitlement to a left knee disability rating greater than 10 percent prior to January 20, 2015 is denied. REMANDED Entitlement to a right knee disability rating greater than 10 percent prior to June 13, 2019, and greater than 30 percent from August 1, 2020 (and excluding the period from June 13, 2020 through July 31, 2020), is remanded. FINDING OF FACT Prior to January 20, 2015, the Veteran’s service-connected left knee disability primarily manifested as: limitation of flexion to 115 degrees at worst; limitation of extension to 5 degrees at worst; complaints of pain, swelling, “locking” and stiffness; use of a brace; difficulty walking long distances; and antalgic gait. However, there was no competent evidence of any form of ankylosis, dislocated semilunar cartilage, symptomatic removal of the semilunar cartilage, tibia or fibula impairment, recurrent subluxation, or genu recurvatum; and the weight of the most probative and credible evidence did not show recurrent lateral instability. CONCLUSION OF LAW The criteria for entitlement to a left knee disability rating greater than 10 percent prior to January 20, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to March 1976 with the U.S. Air Force and from September 1981 to July 1984 with the U.S. Navy. He and his spouse testified before the undersigned Veterans Law Judge during a March 2016 Board hearing and a transcript is of record. This appeal has a long procedural history and has been before the Board and the U.S. Court of Appeals for Veterans Claims (the Court or CAVC) previously. Most recently, in April 2019, the Board remanded this appeal to address duty to assist deficiencies referenced in the Court’s July 2018 Memorandum Decision. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the Board’s April 2019 remand directives regarding the left knee claim. However, the AOJ did not substantially comply with the remand directives regarding the right knee claim for reasons discussed further below in the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board thoroughly reviewed all the evidence of record. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Moreover, the Board will not repeat here in full pertinent regulations that the AOJ previously provided in the Statement of the Case (SOC). 1. Entitlement to a left knee disability rating greater than 10 percent prior to January 20, 2015 is denied. The Veteran was awarded a 10 percent rating prior to January 20, 2015 for his service-connected left knee disability under 38 C.F.R. § 4.71a , Diagnostic Codes (DCs) 5010 (arthritis, due to trauma) and 5261 (limitation of extension). This rating was based on painful motion under 38 C.F.R. § 4.59, which allows for at least the minimum compensable rating for a particular joint. He seeks a higher rating. To warrant a disability rating greater than 10 percent for the knee based on limitation of motion, the evidence must show: • limitation of flexion to 30 degrees (20 percent under DC 5260); • limitation of extension to 15 degrees (20 percent under DC 5261); • limitation of flexion to 45 degrees and limitation of extension to 10 degrees (for two separate, 10 percent ratings under DCs 5260 and 5261, respectively); or • favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256). See 38 C.F.R. § 4.71a. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. DC 5010 for traumatic arthritis has no independent rating criteria, but directs that disabilities assigned this code be rated as degenerative arthritis (i.e. under DC 5003). When there is painful motion of a major joint caused by degenerative arthritis (rated under DC 5003) that is detected on x-ray, such painful motion will be considered limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even if there was no actual, compensable limitation of motion. See 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In this case, the Veteran’s left knee disability failed to meet the schedular criteria for a higher rating for limitation of extension under Diagnostic Code 5261 because there is no competent evidence during the relevant period of extension limited to 15 degrees (or worse). Nor is he entitled to a higher or separate compensable rating for limitation of flexion under Diagnostic Code 5260 because there is no evidence of limitation of flexion to 45 degrees (or worse). At a November 2013 VA orthopedic consult, the Veteran presented with full range of motion and full strength in the left knee. January and December 2014 VA orthopedic notes showed range of motion from 5 to 115 degrees; although this represented a decrease from the full range of motion previously shown in November 2013, this worsening does not warrant a higher rating for limitation of extension because extension limited to 5 degrees warrants a zero percent rating under Diagnostic Code 5261. Other VA outpatient notes during the appeal period noted complaints of and treatment for left knee symptoms such as pain, but do not note limitation of motion in terms of degrees. Moreover, although the August 2011 VA examination noted range of motion findings, the Board cannot rely on those measurements for reasons discussed further below. In summary, the evidence of record does not warrant either a higher, 20 percent rating for limitation of extension under Diagnostic Code 5261, or a higher and/or separate compensable rating for limitation of flexion under Diagnostic Code 5260, at any time during the appeal period. The Board considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). For the reasons discussed below, neither higher nor separate ratings are warranted for the service-connected left knee disability under other Diagnostic Codes. The weight of the most probative evidence does not warrant a higher or separate rating under Diagnostic Code 5256 for left knee ankylosis. The Board considered the Veteran’s December 2011 lay statement in which he complained that both knees “will not move;” however, there have been no competent medical findings of left knee ankylosis at any relevant time. Additionally, during a January 2014 VA orthopedic consult, the Veteran complained that his knee had become “stuck” in 90 degrees of flexion; however, the knee was clearly not ankylosed (frozen) in one position, as he still had range of motion from 5 to 115 degrees. This same range of motion was shown in December 2014. (As this December 2014 VA treatment record is unclear whether this range of motion finding applied to one or both knees, the Board will apply it to both knees.) The Board considered VA treatment and examination records that showed complaints of left knee pain and swelling, as well as clinical evidence of an antalgic gait and the issuance of a knee brace by his primary care physician. Additionally, the Board notes the August 2011 VA examination report finding of “severe” effects of the Veteran’s bilateral knee degenerative joint disease on a few categories of activities of daily living, namely exercising, sports, and recreation. However, most noted effects of the left knee disability on usual daily activities were deemed nonexistent or mild to moderate, at worst. See August 2011 VA examination (noting “[n]one” regarding effect on dressing, toileting, grooming, and driving, “[m]ild” effect on chores and bathing; “[m]oderate” effect on shopping and traveling; and “[s]evere” effect on exercise, sports, and recreation). The Board finds that the currently assigned 10 percent rating for left knee degenerative joint disease with painful extension is consistent with and expressly considers the factors set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. § 4.40, 4.45, and 4.59 (noting the Rating Schedule intends to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). Even considering these factors, there is no competent evidence suggesting that the Veteran’s left knee functional loss fulfills or closely approximates the criteria for a higher, 20 percent rating under Diagnostic Code 5261 (limitation of extension), or a higher and/or separate, compensable rating under Diagnostic Code 5260 (limitation of flexion). At the hearing, the Veteran also contended that he had left knee instability, which he would like considered for a separate compensable rating. To warrant a separate rating for this type of disability, under Diagnostic Code 5257, the evidence must show recurrent subluxation or lateral instability; a 10 percent rating is assigned for slight symptoms, a 20 percent rating is assigned for moderate symptoms, and a 30 percent rating is assigned for severe symptoms. Under Diagnostic Code 5257, objective medical evidence is not required to establish lateral knee instability, so objective medical evidence cannot be categorically found more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). (The Board notes that the Court issued English while this appeal was pending, soon after the Court’s July 2018 Memorandum Decision.) The Veteran does not contend, nor does the record show, that he had left knee subluxation at any relevant time during the appeal period. Rather, the Veteran complained of feelings of left knee instability or “giving way.” The August 2011 VA examiner considered the Veteran’s complaints of weakness and “giving way,” as well as the Veteran’s reported use of a knee brace; however, the 2011 examiner found no instability upon examination of the knees. The Veteran argues that the August 2011 examiner did not pick up on instability since he was wearing a brace; however, subsequent VA treatment records, including some noting his use of a brace, did not note either complaints or clinical evidence of left knee instability. For example, a November 2013 VA orthopedic consult note indicated no history of patellar subluxations or dislocations since surgery in the 1980s; the only symptoms noted were pain, swelling, and an antalgic gait. Moreover, the clinician notably did not attribute such symptoms to complaints or clinical findings of left knee lateral instability. On examination, joint stability tests – including tests of anterior instability (Lachman test), anterior/posterior instability (anterior/posterior drawer test), and varus and valgus stress tests – were all normal. Upon follow-up evaluations in January and December 2014, those tests remained normal. In addition, VA outpatient notes during the relevant period recognized the Veteran’s use of a knee brace; however, there is no lay or medical evidence in those notes attributing this assistive device to complaints or clinical evidence of left knee lateral instability. See November 2013 and December 2014 VA orthopedic notes. The Board considered the Veteran’s lay statements competently describing feelings of left knee instability, pursuant to the February 2017 Joint Motion for Partial Remand and the principles set forth in English. See, e.g., March 2016 hearing testimony (Veteran stated that during the August 2011 VA examination, he was wearing a VA-issued left knee brace for instability; he also testified that his left knee instability had worsened up to the time when he had his left knee surgery in January 2015); December 2011 statement (Veteran reported knee symptoms of weakness and “giving out”); August 2011 VA examination report (Veteran reported feelings of bilateral knee “giving way” and weakness, as well as frequent knee brace use); July 2013 statement (reiterating that he had reported these symptoms and his use of a knee brace to the August 2011 VA examiner). Essentially, the Veteran suggests that his use of a VA-issued knee brace showed lateral instability. The Board finds that the weight of the most probative and persuasive evidence of record does not show left knee lateral instability. The Veteran is competent to describe observable left knee symptoms such as feeling as though it is “giv[ing] out” or “collapsing.” However, the Board does not find these reports credible when viewed in light of the totality of the lay and medical evidence of record. The Veteran had multiple opportunities during the relevant period to report feelings of left knee instability to his VA treating providers, but consistently failed to do so. See, e.g., August 2010 VA orthopedic surgery consult; June 2012 VA primary care note; July 2012 VA orthopedic surgery consult; September 2013 VA primary care note; November 2013 VA orthopedic surgery note; January 2014 VA orthopedic surgery consult; December 2014 VA orthopedic surgery consult. During these treatment encounters, he consistently and affirmatively reported left knee symptoms and functional impairments such as pain, stiffness, and difficulty walking long distances. In contrast, he notably did not report feelings of giving way or instability during any of these encounters. Had he indeed experienced feelings of left knee instability at those times, when he affirmatively reported various other left knee symptoms, it is reasonable to expect that he would have reported such, in the interest of obtaining adequate, thorough medical care. That he consistently failed to do so while seeking medical treatment for his left knee, despite ample opportunity to do so, weighs against the credibility of his relatively few, outlier complaints of feelings of left knee instability. Cf. Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding the Board must first establish a proper foundation for drawing adverse inferences from an absence of documentation); AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Furthermore, the Veteran’s consistent failure to report feelings of left knee instability during these multiple treatment encounters suggests that his relatively few, isolated complaints of this symptom summarized above were not “recurrent,” as Diagnostic Code 5257 explicitly contemplates. The Board recognizes the Veteran’s July 2013 statement in which he contended that a September 2010 letter from TSA (a prospective employer), and a November 2011 return-to-work form completed by a VA physician showed that he had restricted work status related to the instability of his knees. The Veteran also contended in his July 2013 statement that the 2010 TSA letter warranted a 20 percent rating for his knees. However, the Board rejects the Veteran’s readings of those documents and proposed increased rating for the following reasons. First, the September 2010 TSA letter stated that he was medically disqualified from a position with that agency due to a history of knee injury or surgery with significant physical findings such as crepitus, effusion, pain, lack of range of motion, strength and instability (e.g., drawers sign Lachman test) or radiographic changes (e.g., joint space narrowing); or major knee injury or surgery which has been symptomatic in the past two years. This letter did not make a specific finding that the Veteran in fact had instability of either knee (or any other specific knee symptoms); nor did it cite any specific lay or medical evidence in support of such a finding. Rather, the letter cited instability as one of many possible, alternative knee symptoms or findings that may have supported the medical disqualification, using boilerplate language from the TSA Medical Guidelines for Transportation Security Screeners, 2007 edition. These TSA personnel guidelines governing the medical disqualification of security screeners are not binding on VA for veterans’ benefits purposes. The Board also rejects the Veteran’s reading of the November 2011 return-to-work form. That form shows that a VA physician found that the Veteran’s restrictions began indefinitely from November 29, 2011 and the physician found no restrictions except “near total avoidance of ascending / descending steps or stairs or twisting of knees greater than 10 minutes per hour.” The physician did not make any specific clinical findings or note any reported symptoms regarding lateral instability of the knees. Thus, contrary to the Veteran’s contentions in his July 2013 statement, neither document made any specific findings of lateral instability as to either knee that would warrant a separate, compensable rating under DC 5257, or otherwise warranted a higher rating for his left knee disability. In summary, a separate compensable rating for left knee lateral instability under Diagnostic Code 5257 is not warranted at any relevant time. Nor is a separate compensable warranted under Diagnostic Code 5258 for dislocation of the semilunar cartilage with frequent episodes of “locking,” pain and effusion in the joint. The Board acknowledges lay statements reporting feelings of left knee “locking.” See, e.g., December 2011 lay statement (Veteran complained that both knees were “locked up and will not move”); November 2014 VA treatment record (Veteran reported “locking and catching”); December 2014 VA orthopedic surgery note (Veteran complained of bilateral knee pain and locking “on occasion”). The Veteran is competent to report observable left knee symptoms such as feelings of “locking” and pain; however, as a lay person, he is not competent to attribute such symptoms to dislocation of the semilunar cartilage because this requires specialized medical expertise, experience, and training. Indeed, although he reported feelings of left knee locking to VA treating providers, they notably did not attribute this reported symptom to dislocation of the semilunar cartilage, or indicate that such episodes were “frequent” as expressly contemplated by Diagnostic Code 5258. To the contrary, a December 2014 VA orthopedic surgery note states that the Veteran reported symptoms of locking merely “on occasion.” Moreover, the August 2011 VA examination shows the Veteran reported “[n]one” when asked about locking episodes and episodes of dislocation. In addition, a January 2014 VA MRI of the left knee showed no significant joint effusion. In summary, a separate evaluation under Diagnostic Code 5258 is not appropriate because there is no competent evidence that the reported locking episodes were due to dislocated left knee semilunar cartilage, or that they were accompanied by effusion into the joint; nor were such episodes “frequent.” Moreover, Diagnostic Code 5259 is not applicable, as there was no evidence of removal of the left knee semilunar cartilage prior to January 20, 2015. Diagnostic Codes 5262 and 5263 also are inapplicable because there was no evidence of tibia or fibula impairment, or of genu recurvatum. The Board acknowledges the Veteran’s and his representative’s assertions that his left knee disability was more severe than reflected in the 10 percent rating prior to January 20, 2015. During this period, the Veteran primarily described left knee symptoms such as pain and stiffness. Moreover, lay and medical evidence regarding functional loss referred to his difficulty with walking long distances, exercising, and climbing stairs, as well as his use of a left knee brace. Such symptomatology and functional loss are consistent with the 10 percent rating currently assigned for his left knee disability prior to January 20, 2015. In summary, neither a higher rating nor separate compensable rating is warranted prior to January 20, 2015 for the service-connected left knee disability. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) does not apply because there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Duties to Notify and Assist The Board recognizes the Veteran’s contention that the August 2011 VA examination was inadequate for failure to adequately document the perceived nature and severity of his service-connected left knee symptoms, including the alleged presence of left knee lateral instability. Initially, the Board did not rely on the August 2011 VA examination in the decision above to the extent that the Secretary previously conceded before the Court that it was inadequate for failure to comply with Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016) (holding that 38 C.F.R. § 4.59 requires, “whenever possible,” joint testing to include range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint). See April 2018 Appellee’s brief at 18 (acknowledging that the August 2011 VA examination, which preceded Correia, did not specify the type of range of motion testing done on examination). Specifically, the Board did not rely on the August 2011 VA examination’s range of motion findings in the decision above. Pursuant to the July 2018 Memorandum Decision, in April 2019, the Board remanded the left knee claim for a retrospective VA medical opinion to estimate the nature and severity of the service-connected left knee disability prior to the January 20, 2015 total knee replacement. Specifically, the Board asked the examiner to estimate left knee functional loss in terms of degrees on active and passive motion, and in weight-bearing and non-weightbearing, at the time of the August 2011 VA examination. Correia, 28 Vet. App. at 168-69. However, the December 2019 VA examiner fully explained why it was not possible to provide such a retrospective medical opinion based on the 2011 VA examiner’s nonspecific findings regarding range of motion and functional limitations. (Although the representative’s December 2020 brief makes a blanket, vague assertion that an unspecified VA examination is inadequate, it notably did not contend that this December 2019 VA medical opinion is inadequate.) The July 2018 Memorandum Decision also noted that in the June 2017 Board decision, the Board failed to consider the adequacy of the August 2011 VA examination under Sharp, Mitchell, DeLuca, and 38 C.F.R. §§ 4.40 and 4.45. As discussed above, the Board has not relied on that VA examination’s range of motion findings in this decision for failure to comply with Correia. Thus, any contention that this examination’s range of motion findings also were inadequate for other reasons, i.e., failure to capture the full extent of left knee functional loss pursuant to these other legal authorities, is moot. The Board finds that contrary to the Veteran’s contention otherwise, the August 2011 VA examination adequately documented whether left knee lateral instability was present. Indeed, the examiner documented his complaint of bilateral knee “giving way,” but found no evidence of instability on examination. Moreover, although the examiner noted the Veteran “[a]lways” wore a knee brace, this assistive device was not attributed specifically to complaints or clinical findings of left knee lateral instability. This is consistent with VA outpatient treatment records during the appeal period which likewise acknowledged the Veteran’s use of a knee brace, but did not suggest that this assistive device was used for or prescribed to treat complaints or clinical findings of left knee lateral instability. See November 2013 and December 2014 VA orthopedic surgery notes. Neither the Veteran nor his representative has raised any other duty to notify or duty to assist issues regarding the claim adjudicated herein since the most recent Board remand. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). REASONS FOR REMAND Entitlement to a right knee disability rating greater than 10 percent prior to June 13, 2019, and greater than 30 percent from August 1, 2020 (and excluding the period from June 13, 2020 through July 31, 2020), is remanded. Initially, while this issue was last in remand status, the AOJ granted a 100 percent disability rating for the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (prosthetic replacement of knee joint) for the year following implantation of a prosthesis, from June 13, 2019 through July 31, 2020. The AOJ then assigned a 30 percent rating under the same Diagnostic Code from August 1, 2020. See July 2019 rating decision. Since the assignment of a 100 percent rating for the left knee disability is a full grant of benefits sought on appeal from June 13, 2019 through July 31, 2020, the claim is moot for this portion of the appeal period. The Board has recharacterized this issue accordingly. In June 2017, the Board denied both claims on appeal on the merits and concluded that VA had satisfied the duty to assist, including by obtaining adequate VA examinations. The Veteran appealed that decision to CAVC. In a July 2018 Memorandum Decision, CAVC held that the June 2017 Board decision provided inadequate reasons and bases when concluding that VA had satisfied the duty to assist in obtaining adequate VA examinations. Specifically, the Court held that the June 2017 Board decision failed to address whether the August 2011 and November 2016 VA knee examinations complied with pertinent legal authorities. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.49. In April 2019, the Board remanded the right knee claim for another VA examination to address the duty to assist deficiencies referenced in the July 2018 Memorandum Decision. Unfortunately, the AOJ did not substantially comply with the 2019 Board remand for the following reasons. First, the December 2019 VA examiner noted right knee pain with weight bearing, and noted pain on examination of right knee flexion and extension. However, the examiner made no attempt to express these findings in terms of degrees of additional limitation of motion (or explain why this was not possible), as instructed in remand directive 1(a). Second, the December 2019 VA examiner considered the Veteran’s reports of right knee functional loss after repeated use over time. However, the examiner again made no attempt to express these findings in terms of degrees of additional limitation of motion (or explain why this was not possible), as instructed in remand directive 1(c). As the AOJ did not substantially comply with the April 2019 Board remand, another remand regrettably is required. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Schedule another VA examination to address the current nature and severity of the Veteran’s service-connected right knee disability. The examiner must make the following findings, with full supporting rationales: (a.) Test for pain on both active and passive motion, and on weight-bearing and non-weight bearing. Express the degree of functional loss in terms of degree(s) at which pain begins. (b.) If the Veteran reports flare-ups (either during the examination or other times), then opine whether there is additional functional loss during flare-ups in terms of additional range of motion lost expressed in degrees. The examiner must consider lay reports of additional functional loss he experiences during flare-ups, even if he is not having a flare-up during the examination. (c.) Address whether the Veteran has functional loss due to pain after repeated use over time. If so, then please express the functional loss in terms of additional degrees of range of motion lost after repeated use. (d.) When addressing the presence or absence of right knee lateral instability, consider the Veteran’s subjective reports of feelings of instability in addition to objective examination findings. If any requested findings are not possible without resort to mere speculation, not feasible, medically contraindicated, raise a risk of injury to the Veteran, or otherwise cannot be provided, then the examiner must explain why with a full rationale. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Janofsky, 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.