Citation Nr: 21004638 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-28 997 DATE: January 27, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) prior to October 21, 2019 and in excess of 40 percent thereafter is denied. Entitlement to an increased disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee is denied. Entitlement to an initial separate compensable disability rating for DJD of the left knee limited extension is denied. Entitlement to an initial disability rating in excess of 10 percent for instability associated with DJD of the left knee is denied. Entitlement to an increased disability rating in excess of 10 percent for DJD of the right knee is denied. Entitlement to an initial separate compensable disability rating for right knee limited extension is denied. FINDINGS OF FACT 1. Prior to October 21, 2019, the Veteran’s forward flexion of the thoracolumbar spine did not manifest as 60 degrees or less; and, the combined range of motion of the thoracolumbar spine is not shown to be 120 degrees or less; and, there is no showing of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; including consideration of reported flare-ups. 2. From October 21, 2019 and thereafter, symptoms of the Veteran’s lumbar spine disability did not at any time more nearly approximate ankylosis or incapacitating episodes due to IVDS. 3. The symptoms of the Veteran’s left knee disability have been manifested by complaints of pain on motion, with flexion limited to no worse than 60 degrees and extension normal, to include consideration of additional limitation of motion due to flare-ups. 4. The Veteran has no more than slight instability of the left knee. 5. The symptoms of the Veteran’s right knee disability have been manifested by complaints of pain on motion, with flexion limited to no worse than 60 degrees and extension normal, even with consideration of additional limitation of motion due to flare-ups. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for DJD of the lumbar spine with IVDS, prior to October 21, 2019, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. The criteria for an increased disability rating in excess of 40 percent for DJD of the lumbar spine with IVDS have not been met from October 21, 2019 and thereafter. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. The criteria for an increased disability rating in excess of 10 percent for DJD left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. 4. The criteria for an initial separate compensable disability rating for left knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. 5. The criteria for an initial disability rating in excess of10 percent rating for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a, DC 5257. 6. The criteria for an increased disability rating in excess of 10 percent for DJD right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. 7. The criteria for an initial separate compensable disability rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from July 1972 to May 1976 and the United States Army from December 2002 to July 2004 and November 2008 to December 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied increased ratings for the Veteran’s service-connected lumbar spine and bilateral knee disabilities. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board videoconference hearing. A transcript of the hearing is of record. In a March 2019 Board decision, the Board remanded the claims for further development. During the pendency of the appeal, a July 2020 rating decision granted a higher rating of 40 percent for lumbar spine DDD with IVDS effective October 21, 2019, and this created a staged rating. The RO also granted separate ratings for DJD of the left and right knee for limited extension and assigned noncompensable disability ratings effective October 21, 2019. In an October 2020 rating decision, the RO granted a separate 10 percent rating for instability of the left knee, effective October 21, 2019. As the Veteran is presumed to be seeking the maximum possible evaluation, the issues of higher ratings for the Veteran’s lumbar spine and bilateral knee disabilities remain in appellate status. See A.B. v. Brown, 6 Vet. App 35 (1993). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to an increased disability rating in excess of 10 percent for DJD of the lumbar spine with IVDS prior to October 21, 2019 and in excess of 40 percent thereafter The Veteran contends that the symptoms of his lumbar spine disability warrant an increased disability rating. The Veteran’s service-connected lumbar spine disability is currently rated under Diagnostic Code 5243, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is warranted for the forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for the 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 rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A higher rating of 50 percent is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum rating of 100 percent is warranted with unfavorable ankylosis of the entire spine. Id. For VA purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5). The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether it radiates or not), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The Veteran is in receipt of separate ratings for his bilateral lower extremity radiculopathy that he has not appealed. Under the rating schedule, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, the 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 combined range of motion refers to the sum of the range of the forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note 2 and Plate V. When an evaluation of a disability is based upon the limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Codes, any additional functional loss that the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. § 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more, or less, movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2019); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain, which has been assigned in this case. Burton v. Shinseki, 25 Vet. App. 1 (2011). February 2013 radiology imaging of the lumbar spine revealed degenerative changes that were somewhat greater than on previous comparison study of December 2009. In a March 2013 statement, the Veteran reported that the condition of his back and knees continue to deteriorate. During an April 2013 VA examination, the Veteran did not report any flare-ups that impacted the function of the thoracolumbar spine. Initial range of motion (ROM) testing revealed forward flexion to 90 degrees or greater. There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test, forward flexion ended at 90 degrees or greater. The Veteran did not have additional limitation in ROM of the thoracolumbar spine following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the thoracolumbar spine. Functional loss/impairment was described as less movement than normal. The Veteran does not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran does not have guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. The Veteran had IVDS with no incapacitating episodes. The Veteran did not use any assistive devices. During the October 2018 Board hearing, the Veteran reported that about three weeks before his VA examination, he got an epidural steroid injection in his back. He reported that the steroid injection eases inflammation and it is immediate relief from pain. He reported that it doesn’t last long so he has it four times a year. He argued that Board must discount the ameliorative effects of his medication and his steroid injection should be considered. The Veteran reported that a flare-up will last days for his back. He reported that he uses a back brace anytime he does any physical labor or standing more than 30 minutes. An October 2019 VA examination report reflects that the Veteran described persistent severe low back pain with intermittent radiculopathy. He reported flare-ups described as severe. He stated they occurred every three months and would last for 30 to 60 days. He stated they were precipitated by walking more than half a mile standing or sitting longer than 30 minutes, lifting, carrying, or picking/pulling more than 10 pounds of force, and bending. He described functional loss/impairment as walking more than half a mile, standing or sitting longer than 30 minutes, lifting, bending, carrying, or picking or pulling more than 10 pounds of force. Initial ROM revealed forward flexion to 10 degrees and extension to 10 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. He was examined immediately after repetitive use. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was conducted during a flare-up. Pain, lack of endurance, incoordination significantly limit functional ability with flare ups. The Veteran had muscle spasms resulting in abnormal gait or abnormal spine contour. He had guarding that was not resulting in abnormal gait or abnormal spinal contour. He had less movement than normal, interference with sitting, and interference with standing. He did not have muscle atrophy. There was no ankylosis of the spine. He had IVDS with no episodes of acute signs and symptoms that required bed rest prescribed by a physician. Radiology imaging from October 2019 reveal that the Veteran had normal lumbar lordosis with no subluxation. There was age-indeterminate compression fracture, mild osteopenia, and a moderate degree of spondylosis. In a December 2019 statement, the Veteran reported that since his most recent VA examination, he fell at home and broke his back. An August 2020 VA examination report reflects that the Veteran reported that the symptoms of his back disability was pain, stiffness, and radiculopathy of the bilateral lower extremities. He reported that he did not have any flare-ups. He reported functional loss/impairment described as decreased flexion with interference with picking up objects. Initial ROM testing revealed flexion to 55 degrees and extension to 20 degrees. Range of motion itself contributed to functional loss described as decreased flexion with interference with picking up objects. Pain was noted on examination, but it did not result in/cause functional loss. Range of motion exhibited pain on forward flexion. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function/ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He did not have guarding or muscle spasm. He did not have muscle atrophy. There was no ankylosis of the spine. He had IVDS that did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. Private and VA treatment records were reviewed in connection with the claim with symptoms of the lumbar spine disability noted as equivalent as noted in the VA examination reports. Upon review of the evidence of record, prior to October 21, 2019, a disability rating in excess of 10 percent for a lumbar spine disability is not warranted. His forward flexion was, at worst, 90 degrees, and his extension was, at worst, from 90 to 0 degrees. Additionally, the Veteran did not report any flare-ups until 2018. His functional loss impairment noted on examination in 2013 was described as less movement than normal; however, post-repetitive testing revealed that the ROM on flexion and extension remained the same. While he did report flare-ups during his 2018 Board hearing, he did not describe flare-ups that significantly limited his functional ability on any consistent basis as to find additional loss of motion rising to the degree that would warrant a rating higher than 10 percent. Even giving the benefit of the doubt to the Veteran, there is no indication based upon the Veteran’s statements that the flare-ups were severe enough to result in flexion limited to such a degree that would warrant the assignment of a rating in excess of 10 percent. The above symptomologies for the Veteran’s lumbar spine disability more nearly approximate the 10 percent criteria. Even when considering functional loss as set forth in 38 C.F.R. § 4.40 and 4.45, his disability picture is not more closely approximated by the 20 percent criteria, to include consideration of additional motion loss due to pain during flare-ups, and discounting the ameliorative effects of the steroid injections. A review of the outpatient treatment records corroborates the Veteran’s testimony that he regularly received steroid injections for low back pain; however, these records do not support a finding that the criteria for a rating in excess of 10 percent are met during that time period. As a result, an increased rating in excess of 10 percent for the Veteran’s lumbar spine condition must be denied. From October 21, 2019 and thereafter, the Board finds that a rating in excess of 40 percent for his lumbar spine disability is not warranted. The evidence reflects that an increased disability rating in excess of 40 percent is not warranted at any time during the appeal period. The record does not reveal that the Veteran has ankylosis or incapacitating episodes. Neither the Veteran’s private and VA treatment notes nor the VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. In addition, the Veteran does not contend, and the evidence does not reflect, that he has suffered from incapacitating episodes due to IVDS throughout the entire period on appeal. The VA examination reports specifically note that he has not had incapacitating episodes due to his IVDS. As the preponderance of the evidence reflects the symptoms of the Veteran’s lumbar spine disability do not more nearly approximate the criteria for a rating higher than 10 percent prior to October 21, 2019 and higher than 40 percent thereafter, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Right and Left Knee Disabilities The Veteran contends that the symptoms of his right and left knee disabilities warrant an increased disability rating. The Veteran’s service-connected right and left knee DJD is rated as 10 percent disabling for each knee under DCs 5010-5260. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5010 pertains to arthritis, due to trauma, and is rated based on limitation of motion of the joint involved, which in this case is the knee, under DC 5260 for limitation of flexion. The RO also assigned noncompensable ratings for limitation of extension of each knee under DC 5010-5261; and, the RO considered separately assigned ratings for instability under DC 5003-5257. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated pursuant to degenerative arthritis under DC 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. When, however, the 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 or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. DC 5260 contains criteria for rating limitation of flexion of the knee and DC 5261 contains criteria for rating limitation of extension of the knee. 38 C.F.R. § 4.71a, DCs 5260, 5261. DC 5260, limitation of flexion of a leg, provides a 0 percent rating for flexion limited to 60 degrees; a 10 percent rating for flexion limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5260. DC 5261, limitation of extension of a leg, provides a 0 percent rating for extension limited to 5 degrees; a10 percent rating when extension is limited to 10 degrees and a 20 percent rating when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees and a 40 percent rating for extension limited to 30 degrees. A maximum 50 percent rating applies when extension is limited to 45 degrees or worse. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. As relevant, DC 5257 pertains recurrent knee subluxation or lateral instability. It provides a 10 percent rating for slight impairment of either knee, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. The Board notes that are additional knee and leg DCs. However, in this specific case, the service-connected right and left knee symptoms have not either manifested as separately compensable or been attributed to ankylosis, meniscus disorder, impairment of the tibia or fibula, or genu recurvatum. Separate or higher ratings under the additional knee DCs 5256, 5258, 5262 or 5263 do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a, DCs 5256, 5258, 5262, 5263. A February 2013 radiology imaging report of the left knee revealed mild changes of osteoarthritis of the left knee joint, chondromalacia patellae, mild synovial effusion, fluid/infrapatellar hyperintensity raising possibility of bursitis, and mild subcutaneous edema around the knee joint. Radiology imaging of the right knee revealed myxoid degeneration of the anterior horn of medial meniscus. There was a sprain of anterior cruciate ligament, mild synovial effusion, mild changes of osteoarthritis in the right knee joint, and mild subcutaneous edema around the knee joint. There was fluid intensity suggestive of bursitis. In a March 2013 statement, the Veteran reported that the condition of his knees continued to deteriorate. An April 2013 VA examination report reflects that the Veteran did not report flare-ups that impact the function of the knee. Initial ROM for the right knee revealed flexion to 120 degrees with objective evidence of painful motion beginning at 120 degrees. Right knee extension ended at 0 degrees with objective evidence of painful motion beginning at 0 degrees. Initial ROM for the left knee revealed flexion to 110 degrees with objective evidence of painful motion beginning at 110 degrees. Left knee extension was to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Right knee post-ROM revealed flexion ended at 120 degrees and post-test extension ended at 0 degrees. Left knee post-test ROM revealed flexion to 110 degrees with post-test extension to 0 degrees. The Veteran did not have additional limitation in range of motion of the knee and lower leg following repetitive-use testing. The Veteran reported functional loss and/or functional impairment of the knee with less movement than normal bilaterally and pain on movement bilaterally. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. The Veteran did not use assistive devices. During the October 2018 Board hearing, the Veteran testified that his VA examination was inadequate because the examiner spent less than 30 minutes with him for all of his disabilities. Additionally, he reported that he was waiting for a surgery date for a left knee total replacement. An October 2019 VA examination report reflects that the Veteran had a diagnosis of left knee instability. Additionally, he had degenerative arthritis of the bilateral knee. The Veteran reported that his current symptoms were bilateral knee pain and instability. He reported the inability to run, walk more than 1/2 mile, and the inability to climb stairs or ladders. He reported flare ups described for the right knee as moderate, lasting more than a week, precipitated by walking more than 1/2 mile, climbing stairs, or standing longer than 30 minutes, and alleviated by knee braces. He stated that flare-ups of the left knee occurred monthly, were described as severe, and lasted for more than a week. He stated that they were precipitated by walking more than 1/2 mile climbing, standing longer than 30 minutes. The left knee flare-ups were alleviated by knee braces. He reported functional loss/impairment and stated that he was waiting to schedule a left knee total knee replacement. Initial ROM of the R knee reveled flexion to 60 degrees and extension to 0 degrees. ROM did not contribute to functional loss. Pain was noted on examination and caused functional los and there was evidence of pain with weight bearing. There was objective evidence of crepitus. Initial ROM of the left knee revealed flexion to 60 degrees and extension to 0 degrees. ROM did not contribute to a functional loss. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Pain, lack of endurance, and incoordination significantly limited functional ability with flare-ups described in terms of ROM as flexion to 60 degrees and extension to 0 degrees, bilaterally. There was less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing for the right knee due to pain. As for the left knee, there was disturbance of locomotion, interference with sitting, and interference with standing due to pain. There was no muscle atrophy and no ankylosis bilaterally. There was no history of subluxation, lateral instability, and effusion. He did not have a recurrent patellar dislocation disability, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have a meniscal condition. He used a knee brace constantly for his left knee. An August 2020 VA examination report reflects that the Veteran’s symptoms included pain and stiffness. He did not report flare-ups of the knees. He reported functional loss/impairment described as decreased ROM. Initial ROM of the right knee reveals flexion to 85 degrees and extension to 0 degrees. Range of motion itself contributed to functional loss described as decreased flexion with interference with going upstairs. There was no pain noted on examination, no evidence of pain weigh weight-bearing, and no objective evidence of crepitus. Initial ROM of the left knee revealed flexion to 85 degrees and extension to 0 degrees. Range of motion itself contributed to a functional loss described by decreased flexion with interference with going up stairs. There was no pain noted on examination, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM after three repetitions, bilaterally. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time, bilaterally. The examiner noted that there was no anticipated change in ROM. The Veteran did not have muscle atrophy and ankylosis. There was no history of recurrent subluxation, lateral instability, and recurrent effusion. There was no joint instability. He did not have a meniscal condition of the right knee. In 1995, the underwent a left knee ACL repair and his residuals were described as mildly decreased flexion. For each knee, the Veteran currently has 10 percent ratings based upon joint pain with noncompensable motion loss. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). In order to receive a single rating in excess of 10 percent for motion loss, knee motion loss must more nearly approximate the 20 percent rating criteria in either flexion or extension leg plane. 38 C.F.R. § 4.14. This is because the currently assigned 10 percent rating for noncompensable motion loss is assigned under the arthritis criteria, and contemplates knee pain without compensable motion loss and would be incorporated into any 10 percent rating for compensable motion loss. Id. However, the Veteran may demonstrate compensable motion loss in both the flexion and extension leg planes to warrant separate compensable ratings without pyramiding symptoms. VAOPGCPREC 9-2004. For the right knee, clinically observed ROM showed that flexion was to 60 degrees, at worst and extension was to 0 degrees, at worst. For the left knee, clinically observed ROM showed that flexion was to 60 degrees, at worst and extension was to 0 degrees, at worst. This corresponds to a 10 percent rating under Diagnostic Code 5010 for noncompensable limitation of motion of each knee. For separate compensable ratings, the Veteran would have to demonstrate flexion motion loss more nearly approximating 45 degrees or worse, in addition to extension motion loss more nearly approximating 10 degrees or more. 38 C.F.R. §§ 4.71a, DCs 5260, 5261. The Board must also consider functional impairment from flare-ups and repetitive use over time. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups); 38 C.F.R. § §§ 4.40, 4.45, 4.59. The Veteran is competent to describe knee functional impairment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds his reports about general functional impairment, to include estimated motion loss from knee pain, credible since joint pain and motion loss is closely associated with arthritis. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As noted in the VA examination reports, the Veteran first reported flare-ups in the left and right knee during his October 2019 VA examination. They were described as moderate with alleviation after wearing a knee brace. Pain was noted on ROM that caused functional loss. In 2020, the VA examination report reflects that his ROM improved, and he no longer reported flare-ups. Subsequent to the October 2019 VA examination, based on the Veteran’s report of pain on extension and limitation, the Veteran was granted a separate noncompensable disability rating for his left and right knee disability. In this regard, the Veteran is not entitled to a separate compensable rating for limitation of extension of either knee because such limitation is noncompensable, and the Veteran is already being compensated for his non-compensable limitation of flexion and extension with the assignment of the 10 percent rating assigned under Diagnostic Code 5010. The Board finds that compensable ratings for left and right knee extension motion loss and ratings in excess of 10 percent for knee flexion motion loss are not warranted. The currently assigned 10 percent rating for noncompensable motion loss contemplates knee pain without compensable motion loss. The evidence does not demonstrate compensable motion loss in both the flexion and extension leg planes to warrant separate compensable ratings without pyramiding symptoms. The available knee ROM studies show right and left knee motion much greater than these limitations under DCs 5260 and 5261. Based upon these factors, the RO has already accounted for his estimated motion loss reports during flare-ups and repeated use, and due to pain, by assigning separate noncompensable ratings under these DCs as explained above. Additionally, the evidence does not more nearly approximate more than slight left knee instability under DC 5257. The Veteran reported left knee instability during his October 2019 VA examination, and the examiner diagnosed knee instability of the left knee. Indeed, the joint stability testing performed on the left knee was positive for slight medial instability (1+). No more than slight instability was shown on that examination, or since that time. He does not otherwise assert a greater severity of impairment beyond mild. The Board construes this background to be suggestive of slight, rather than moderate knee disability. In sum, the reports weigh against moderate impairment from knee instability symptoms with due consideration to the Veteran’s lay descriptions. English, supra.; 38 C.F.R. § 4.71a, DC 5257. Instability was never reported or shown on examination for the right knee. (Continued on the next page)   The symptoms of the Veteran’s left and right knee disability, including pain, have not been shown to produce additional functional loss or limitation of motion to support the assignment of higher ratings. Additionally, instability of the left knee has not been shown to be greater than slight. Accordingly, the evidence weighs against the award of higher ratings assigned for right knee limitation of flexion and extension during any period on appeal, even with consideration to functional impairment. As the preponderance of the evidence is against increased ratings and the benefit of the doubt doctrine is not for application, the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.