Citation Nr: 21004934 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-50 599 DATE: January 28, 2021 ORDER Entitlement to service connection for a claimed disability manifested by chronic fatigue is denied. Entitlement to service connection for a disability manifested by sleep impairment is denied. Entitlement to an increased 20 percent disability rating for limited motion of the right knee, effective December 1, 2019, is granted. Entitlement to an increased evaluation for limited motion of the right knee prior to December 1, 2019, currently rated as 10 percent disabling, is denied. Entitlement to a disability rating higher than 20 percent for limited motion of the right knee at any time during the appeal period is denied. Entitlement to a separate 10 percent disability rating for slight instability of the right knee, effective July 23, 2015, is granted. REMANDED Entitlement to service connection for a disability manifested by chronic joint and muscle pain is remanded. FINDINGS OF FACT 1. Other than symptoms related to his service-connected psychiatric and neurocognitive disorders, the preponderance of the evidence is against a finding that the Veteran has a separate disability manifested by sleep impairment. 2. Other than symptoms related to loss of sleep associated with his service-connected psychiatric disorder, and fatigue related to his service-connected neurocognitive disorder, the preponderance of the evidence is against a finding that the Veteran has a separate disability manifested by chronic fatigue. 3. For the period before December 1, 2019, the preponderance of the evidence is against a finding that flexion of the right knee was limited to 30 degrees or less. 4. The evidence is at least evenly balanced as to whether, during the period between November 22, 2012 and September 8, 2020, after taking into account pain and functional loss during flare-ups, the symptoms of the Veteran’s service-connected right knee disability approximated forward flexion of 30 degrees or less for 282 days. 5. Throughout the relevant appeal period, the preponderance of the evidence is against a finding that flexion of the knee was limited to 15 degrees or less. 6. The Veteran’s service-connected right knee disability has caused slight instability of the right knee since July 23, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for a separate disability manifested by sleep impairment, aside from a service-connected psychiatric disorder and service-connected neurocognitive disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for a separate disability manifested by chronic fatigue, aside from a service-connected psychiatric disorder and service-connected neurocognitive disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for an increased 20 disability rating for limited motion of the right knee have been met since December 2, 2019, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 4. For the period since July 23, 2015, the criteria for a separate 10 percent disability rating for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5257 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to October 1992. This case comes to the Board from a May 2014 decision of the Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In December 2019, the Board issued a decision and remand, which dismissed two claims for service-connected disability compensation and granted a third. Ten other claims (an increased rating for the right knee and claims for service connection for headaches, erectile dysfunction, unspecified neurocognitive disorder, claimed disabilities of the hips, and left knee, and claimed disabilities manifested by sleep disturbance, fatigue, and joint and muscle pain) were remanded for further development. After obtaining new evidence, including examination reports concerning several of these disabilities, the AOJ granted service connection for unspecified neurocognitive disorder, erectile dysfunction, headaches, left wrist sprain, left knee arthritis, and for disabilities of both hips. Having been resolved in the Veteran’s favor, these issues are no longer part of this appeal. In the same decision, the AOJ increased the disability rating assigned to the Veteran’s right knee from 10 percent to 20 percent, effective September 8, 2020 and assigned a separate 10 percent rating for right knee instability with the same effective date. Because higher ratings are potentially available and the Veteran has not expressed satisfaction for the amount of this increase, the right knee increased rating claim remains part of this appeal. A.B. v. Brown, 6 Vet. App. 35, 38 (1993) Service Connection for Fatigue and Sleep Disturbance Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). According to his service personnel records, the Veteran in this case was deployed to Southwest Asia during the 1991 Persian Gulf War. Because he served in the Persian Gulf at the relevant time, the Veteran is a Persian Gulf veteran as defined in 38 C.F.R. § 3.317(e). When a Persian Gulf veteran exhibits objective indications of chronic disability, including fatigue, sleep disturbances, muscle and joint pain that may be manifestations of undiagnosed illness, VA is authorized to award service-connected disability compensation despite the absence of a specific diagnosis. 38 C.F.R. § 3.317(b). The Board must presume that a qualifying chronic disability, such as undiagnosed illness, is related to service, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and (ii) by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.117(a)(1). Factual Background In his initial application for benefits, the Veteran described his claimed disabilities as “problems while sleeping”, “trembling in sleep”, “nightmares of Gulf War”, “sleep disturbances”, and “fatigue.” In May 2014, the AOJ arranged for a general medical examination to address these and a list of other claimed disabilities. According to the examiner’s report, there were no diagnosed illnesses for which no etiology was established. This larger report included a questionnaire concerning chronic fatigue syndrome. The medical history section of this questionnaire indicates that, “[the Veteran] has felt daily fatigue over the last 5 years. He works 40+ hours a week, sleeps 8 hours a night and feels rested, no lost workdays for fatigue, no fevers, no migratory muscle or joint pains.” In part three of the questionnaire, the examiner indicated that the Veteran did not have any findings, signs, or symptoms attributed to chronic fatigue syndrome. In the questionnaire’s “remarks” section, the examiner wrote, “[the Veteran] does not meet the criteria for chronic fatigue syndrome therefore there is insufficient evidence to warrant a diagnosis of an acute or chronic fatigue disorder or its residuals.” The AOJ arranged a mental examination and obtained a report from the examiner in April 2014. At that time, the Veteran had never had any psychiatric hospitalizations and had not yet had any outpatient mental health treatment. The diagnoses were adjustment disorder and depressed mood, which the examining psychologist attributed to stressful events during the Veteran’s military service. In describing the Veteran’s symptoms, the examiner noted “sleep difficulty” and “noticeable trembling” in sleep. The Veteran said that he had dreams about a soldier who was killed. The examiner wrote that he did not know the cause of the Veteran’s trembling in his sleep, but “at this time [I] do not find sufficient evidence to attribute it to any mental condition.” He acknowledged the Veteran’s complaints about sleep disturbance and sleep impairment, but wrote, “there is not sufficient frequency of sleep disturbance or subsequent impairment in functioning to support a diagnosis of insomnia at this time.” In his notice of disagreement (NOD), the Veteran described his sleep-related disabilities as follows: “unspecified neurocognitive disorder (also claimed as memory loss and trembling in sleep); sleep disturbances and nightmares. . .” In August 2015, he submitted a statement which suggests that his previously assigned claim “be amended to a claim for PTSD based on the facts that when my claim was submitted, I explained all of my symptoms of severe sleep disturbance, night sweats, nightmares and flashbacks about my experience in the Gulf War . . . to the veterans’ service officer who assisted me in filing my claim. I was diagnosed for my symptoms with PTSD only after my claim was submitted. If I knew what my condition was at the time of my claim, I would have filed a claim for PTSD.” The PTSD diagnosis was confirmed in a March 2019 examination report, in which the examiner identified PTSD as the only diagnosed mental illness. According to the report’s medical history section, “[the] Claimants wife said his sleep is often interrupted within the night. It takes him a long time to fall asleep during the night. Claimant shared he has equal difficulty with falling as well [as] sustaining sleep. He will wake up fatigued. He will be ok for the first few hours and then fatigue sets in. Claimant shared he will go to bed with the ability to get 8 hours, but he feels he may get about 5 hours on average.” He told the examiner he experienced nightmares “several times” per week and said that sometimes, after experiencing a nightmare, he would wake up in a cold sweat. When applying the PTSD diagnostic criteria, the March 2019 examiner identified “sleep disturbance (e.g. difficulty falling or staying asleep or restless sleep)” as one of the symptoms satisfying Criterion E. The examiner also listed chronic sleep impairment when the examination questionnaire asked him to identify all symptoms “that apply to the Veteran’s diagnoses. . .” At the videoconference hearing, the Veteran answered questions about his sleep disturbance. He said he remembered roommates in the military and his wife telling him that he was trembling in his sleep. When asked if his sleep symptoms were an aspect of his mental health disorder, the Veteran responded: “Yeah, with, you know with the nightmares that I have. I think the trembling comes a lot with the nightmares.” The Veteran’s wife testified that she noticed the trembling most frequently when the Veteran was experiencing stress. The Veteran testified that he first noticed fatigue during his deployment during the Gulf War. He said that he participated in a sleep study, but he was told he had “insomnia and not sleep apnea.” When he was asked about his feelings of fatigue, he identified his sleep disturbances as a potential cause. Pursuant to the December 2019 remand orders, the AOJ obtained a new psychiatric examination report and a medical opinion concerning the Veteran’s unspecified cognitive disorders. The examination report identified PTSD and neurocognitive disorder as separate diagnoses. When asked to differentiate the symptoms associated with these disorders, the examiner wrote that PTSD symptoms included increased arousal, re-experiencing the stressful event, and avoidance of traumatic stimuli. The Veteran’s neurocognitive disorders was associated with memory loss, expressive aphasia, trouble concentrating, fatigue, and insomnia. According to the examiner the overlapping symptoms – i.e., symptoms associated with both diagnoses – were trouble concentrating and sleep disturbance. Based on his Gulf War service, the absence of evidence of other potential explanations for the disorder, and the Veteran’s statements concerning the onset of his fatigue and insomnia, the examiner opined that it was at least as likely as not that his unspecified neurocognitive disorder was related to service. The AOJ granted service connection for PTSD in June 2019, assigning an initial rating of 50 percent, effective November 22, 2015. In October 2020, the AOJ moved forward the effective date of Veteran’s PTSD benefits to November 22, 2012 and granted service connection for unspecified neurocognitive disorder, evaluated together with PTSD and rated as 50 percent disabling between November 22, 2012 and August 20, 2020 and as 100 percent disabling since August 20, 2020. In November 2020, the AOJ granted a slightly earlier effective date (August 10, 2020) for the 100 percent rating previously assigned for both PTSD and unspecified neurocognitive disorder. VA treatment records also discuss the Veteran’s sleep disturbance. According to a June 2019 mental health note, anticipatory anxiety concerning conflict at his workplace “is disrupting his ability to get to sleep.” An August 2019 primary care note indicates insomnia. A Persian Gulf Registry note, dated September 2019, reported snoring but, consistent with the hearing testimony, described a 2014 sleep study as normal. In April 2020, the Veteran told his psychiatrist that he was struggling with waking up in the night. The Veteran’s psychologist had reservations about the PTSD diagnosis and subsequent mental health notes refer to a diagnosis of unspecified anxiety disorder. Subsequent psychotherapy notes refer to “sleep problems” and the Veteran’s efforts to avoid napping during the day. In June 2020, the Veteran denied experiencing difficulty sleeping. But an August 2020 primary care note refers to insomnia and to the use of medication for sleep disturbance. Analysis “In the absence of proof of a current disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, fatigue and sleep disturbance have already been identified as symptoms of the Veteran’s service-connected psychiatric disorder and unspecified neurocognitive disorder. Under these circumstances, it is appropriate to deny the claim unless the evidence proves that a disability manifested by sleep disturbance exists separate and apart from the symptoms associated with the Veteran’s service-connected psychiatric and neurocognitive disorders. See Lesiak v. McDonald, No. 14-3690, 2015 U.S. App. LEXIS 1681 (December 10, 2015). In Lesiak, the Court affirmed a Board decision denying service connection for sleep disturbance when “the preponderance of the evidence demonstrate[d] that the appellant’s sleep disturbance is a symptom of his service-connected psychiatric disability. . . [and] the appellant has not pointed to any evidence of record, or even argued, that he suffers from a diagnosed sleep disorder other than sleep apnea.” Id. at *20. Having reviewed the evidence, the Board finds that the Veteran’s sleep disturbance, sleep impairment, trembling in his sleep, nightmares and associated fatigue are symptoms of his service-connected PTSD and unspecified neurocognitive disorder. This finding is consistent with the Veteran’s own statements and hearing testimony. In his August 2015 statement, he described both nightmares and “sleep disturbances” as aspects of his claimed PTSD. At the hearing, he and his wife both described the trembling he occasionally experiences in his sleep as coinciding with his nightmares. The Veteran’s testimony is inconsistent with a finding that he has sleep apnea. He explained that, although he participated in a sleep study, he was told that he did not have this condition. According to the May 2014 general medical examiner, there was no separate diagnosis of chronic fatigue syndrome. There is no medical or other evidence in the record which conflicts with this conclusion. At the hearing, the Veteran was asked about his fatigue and, in response, he indicated that he believed the fatigue was associated with his sleep disturbance. The Board has considered the possibility that the April 2014 examiner’s diagnosis of adjustment disorder with depressed mood or the notes indicating insomnia and unspecified anxiety disorder noted in the more recent VA treatment records could potentially satisfy the requirement of a separate disability manifested by sleep impairment. In the context of the Veteran’s previously issued awards of service-connected compensation, the Board finds that they do not. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), VA adjudicators should broadly construe a claim for service connection for any mental illness as claims for service connection for any psychiatric disorder related to service. See Id. at 5. The AOJ applied this principle, and acted in the best interests of the Veteran, by awarding an effective date of November 2012 for service-connected PTSD, even though the Veteran did not file his statement seeking to “amend” his claim to include a PTSD diagnosis until August 2015. The most comprehensive and systematic examination report to consider the Veteran sleep symptoms was the August 2020 report, which considered both PTSD and neurocognitive disorder and attempted to differentiate the symptoms associated with both disorders. As noted, both fatigue and insomnia were associated with unspecified neurocognitive disorder. The overlapping symptoms associated with both PTSD and neurocognitive disorder included sleep disturbance. The August 2020 examiner’s favorable opinion, also dated August 2020, considered “fatigue and trouble concentrating, as well as severe insomnia” as aspects of neurocognitive disorder. Both disabilities were rated by analogy under 38 C.F.R. § 4.130, Diagnostic Code 9499-9411. Chronic sleep impairment is one of the symptoms contemplated by the General Rating Formula for Mental Disorders under this regulation. Because there is no diagnosis of chronic fatigue syndrome and because the Veteran’s sleep impairment and associated fatigue have been attributed to disorders with specific clinical diagnoses, presumptive service connection pursuant to 38 C.F.R. § 3.317 would not be appropriate in this case. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of his claim for service connection. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). For the reasons above, the preponderance of the evidence is against a finding that he has a current disability manifested by sleep impairment or fatigue separate from his service-connected PTSD and unspecified neurocognitive disorder. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. Increased Rating for the Right Knee Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings or the assignment of different disability evaluations for separate periods of time may be appropriate when the claimant has appealed the denial of a request for an increase in the rating previously assigned to a service-connected disability. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). For service-connected disabilities of knees, the regulations generally authorize the assignment of separate ratings for limited flexion (DC 5260), limited extension (DC 5261) and for instability (DC 5257). Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the knees, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing . . . .” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA examiners also have the duty to elicit information from the Veteran describing the condition of the relevant joints during “flare-ups” or episodes when the relevant symptoms are at their most severe. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Factual Background A VA physician examined the Veteran’s knees in May 2014. According to the examiner’s report, the diagnoses for the right knee were MCL sprain (with an initial date of diagnosis of 1990) and degenerative joint disease (2009). The right knee had been painful since his in-service knee injury. According to the examiner The Veteran also “describes pain and swelling in [his right] knee 3 days a month where pain goes from 0/10 to 10/10, better with rest and ibuprofen, lasts about one day, gets a decrease in [range of motion], [with] 5 lost workdays in [the] last year.” During motion tests of the right knee, the Veteran was capable of zero degrees of extension (normal) to 130 degrees of flexion (140 is normal). There was no evidence of painful motion during initial testing. Using his right knee, the Veteran performed repetitive use tests, and after three repetitions, there were no additional limits to range of motion. According to the examiner, there was no tenderness or pain to palpation of the joint line or soft tissue of either knee. Muscle strength was normal (5/5) in both knees. The examiner also administered joint stability tests (Anterior instability, Posterior instability, and medial lateral instability). The results of all three tests were normal for both knees. The examiner indicated “no” when asked if there was evidence of recurrent patellar subluxation or dislocation. The examiner reviewed imaging studies, which indicated the presence of arthritis in both knees, but there was no evidence of patellar subluxation. In describing the functional limits associated with the right knee disability, the examiner wrote that the Veteran was not able to squat or kneel. According to the examiner, it was likely that pain could significantly limit the functional ability of the Veteran’s right knee during flare-ups or when the joint is used repeatedly over time. For this reason, the examiner recommended that he receive at least a 10 percent compensable rating even though the range of motion test results would not necessarily justify a compensable rating. At the hearing, the Veteran testified that, during the range of motion tests, the VA examiner pushed the joint, “further than I thought was necessary because of the pain that I was in so may have reflected I had better range of motion than I actually did . . .” He also said that he was receiving physical therapy for his knee. For this reason, and because the May 2014 examination report did not provide all of the information required by 38 C.F.R. § 4.59, Correia, and Sharp, the Board remanded the right knee claim for a new examination in December 2019. The post-remand examination took place in September 2020. According to the examiner’s report, range of motion in both knees was limited to a much greater degree than at the time of the previous examination. During initial range of motion testing, both knees had range of motion from zero degrees extension (normal) to 40 degrees (normal is 140). Pain was noted with flexion, but not with extension. For both knees, the Veteran remained capable of repetitive use testing. There was no additional limited range of motion after three repetitions. Pursuant to Sharp, the examiner provided estimates of functional loss in terms of degrees of limited motion after repeated use over time and during flare-ups. The examiner estimated that, after repeated use over time, range of motion in both knees would be limited to zero degrees extension to 30 degrees flexion. For both knees the examiner provided identical estimates of range of motion during flare-ups – i.e., zero degrees extension to 30 degrees flexion. The examination also conducted muscle strength and joint stability tests. Muscle strength remained normal. Unlike the May 2014 examiner, the September 2020 examiner indicated joint instability of the right knee. Although the anterior instability (Lachman) and the Posterior instability (Posterior drawer) test results were normal in both knees, the examiner indicated medial and lateral instability of the right knee. For both medial and lateral instability, the examiner measured the degree of instability as 1+ (0-5 millimeters) in the right knee. The examiner identified similar instability in the left knee. As for the testing methods required by 38 C.F.R. § 4.59 and Correia, the September 2020 report indicates that, unlike the initial weight-bearing range of motion tests, there was no objective evidence of right knee pain on non-weight bearing. During passive range of motion testing, the examiner specified that right knee range of motion was the same as the measurements recorded during initial active motion testing. In describing the functional effects of the right knee disability, the examiner wrote that Veteran could not kneel or squat easily. Nor could he run or jog or walk very far. Analysis Based on the September 2020 examiner’s report, the AOJ increased the rating assigned to right knee limited motion from 10 percent to 20 percent, effective September 8, 2020 (the date of the post-remand examination). For the period between November 22, 2012 and September 8, 2020, the previously assigned 10 percent rating was left unchanged. The AOJ assigned a separate 10 percent rating for right knee instability, also effective September 8, 2020. As a preliminary matter, the Board finds that the September 2020 examination report, together with the other evidence, is adequate to decide the increased rating claim and that the AOJ substantially complied with the December 2019 remand instructions. The examiner provided estimates of the probable range of motion in the Veteran’s right knee after repeated use over time during flare-ups. He complied with Correia by indicating whether or not pain was present during all of the testing methods required by 38 C.F.R. § 4.59 and by indicating that, although there was pain during passive motion, the right knee remained capable of the same range of motion indicating in the examiner’s earlier measurements. The increased 20 percent rating assigned pursuant to 38 C.F.R. § 4.71a, DC 5260 (“Leg, limited flexion of”) and assigned by the AOJ for the period since September 8, 2020 is appropriate when flexion is limited to 30 degrees. DC 5260 authorizes only a 10 percent rating when flexion is limited to 45 degrees. A higher 30 percent rating is not authorized unless flexion is limited to 15 degrees. The preponderance of the evidence is against the assignment of a rating higher than 20 percent for right knee flexion at any time during the appeal period (November 22, 2012 to the present). At the time of the May 2014 examination, the right knee was capable of 130 degrees of flexion. According to the September 2020 report, range of motion test results indicated that the right knee was capable of 40 degrees of flexion. The examiner only estimated that flexion would be further limited to 30 degrees – the maximum degree of flexion consistent with a 20 percent rating under DC 5260 – during flare-ups and after repeated use over time. The Board has also considered the records from the Veteran’s physical therapy sessions. The therapist’s notes do not precisely record range of motion in degrees, but an August 2019 note describes loss of flexion in the knees as “very [minimal]” and a September 2019 note described right knee range of motion as within normal limits. Moreover, there is no evidence from any source suggesting that flexion of the Veteran’s right knee was limited to 15 degrees or less. The AOJ assigned September 8, 2020 – the date of the most recent post-remand knees examination – as the effective date for the increased 20 percent rating for limited flexion under DC 5260. The physical therapy notes suggest that this rating is generally consistent with the evidence. But the Board must also consider the problem that earlier information about the extent of range of motion loss during flare-ups is unavailable because of the failure of the May 2014 examiner to comply with 38 C.F.R. § 4.59, Sharp, and Correia. The Board could potentially remand the case for a new examination or retrospective opinion. But it is difficult to see how those remedies could obtain precise information about range of motion in the Veteran’s knee condition before September 2020. Fortunately, the Veteran provided a description of the average frequency, length, and severity of his flare-ups to the May 2014 examiner. He told the examiner he experienced “pain and swelling in [his right] knee 3 days a month where pain goes from 0/10 to 10/10, better with rest and ibuprofen, lasts about one day, gets a decrease in [range of motion], [with] 5 lost workdays in [the] last year.” To avoid the possibility that the previously assigned rating might undercompensate the Veteran due to the irreparable loss of information about his disability associated with the failure of the first VA examiner to strictly comply with 38 C.F.R. § 4.59, the Board finds that his right knee symptoms during flare-ups were similar to the range of motion estimates provided by the September 2020 examiner for precisely three days each month between November 22, 2012 and September 8, 2020. This period consists of 93 months and seventeen days. Resolving reasonable doubt in the Veteran’s favor, the Board will round up to 94 months. Consistent with this finding, the Board will move forward the effective date of the previously assigned 20 percent rating by 282 days, from September 8, 2020 to December 1, 2019. The Board has considered the possibility of assigning a separate rating for limited extension of the knee under DC 5261. But there is no evidence to support such a rating. Both of the examination reports indicated that extension of the Veteran’s leg was normal (zero degrees). As noted, therapy notes described range of motion as within normal limits or as a minimal loss of flexion. Nothing in the Veteran’s written statements or hearing testimony suggests that left leg extension has ever been limited as a result of his service-connected right knee disability. Under these circumstances, a separate rating under DC 5261 would be inappropriate. Based on the September 2020 report, the AOJ assigned a separate 10 percent rating for slight instability of the right knee under DC 5257 (“Knee, other impairment of:”). This diagnostic code authorizes a 10 percent rating for recurrent subluxation or lateral instability which is “slight”, a 20 percent rating if it is “moderate”, or a 30 percent rating for “severe” recurrent subluxation or lateral instability. Like the 20 percent rating for limited flexion, the separate 10 percent rating for right knee instability was assigned an effective date of September 8, 2020. The Board finds that this effective date is inconsistent with medical evidence indicating right knee instability long before September 2020. Specifically, the post-service VA treatment records include an orthopedic surgery note, dated July 23, 2015. After consulting with the Veteran and examining the right knee, the surgeon described symptoms of “pain, swelling, locking, instability.” The records include a prosthetics consultation note, dated January 2018, which attributed “pain/instability” to the Veteran’s right knee disability. A similar note from February 2018 continued to describe “pain/instability” in the right knee. Based on this information, the Board will move forward the effective date of the 10 percent rating under DC 5257 to July 23, 2015, the date of the earliest medical evidence indicating right knee instability. The medical evidence includes an imaging study from June 2015, which indicates anterior cruciate ligament tear and “Large joint effusion.” But according to his report, the May 2014 examiner reviewed a very similar imaging study, quoted in the report, which likewise indicates internal derangement and “Large joint effusion.” Nevertheless, the results of the joint stability tests recorded by the May 2014 examiner were all normal. This report suggests that joint effusion may be consistent with normal joint stability. Under these circumstances, an effective date earlier than July 23, 2015 for the 10 percent rating under DC 5257 would be inappropriate. The Veteran is not entitled to a rating higher than 10 percent under DC 5257. As noted, the September 2020 examiner recorded the results of four different joint stability tests for the right knee. Two of those results – of the anterior instability (Lachman) and posterior instability (posterior drawer) tests – were completely normal. During the medial instability and lateral instability tests, the examiner identified the least severe degree of instability (1+ or 0 to 5 millimeters). If the Veteran’s right knee joint stability tests included more abnormal results, or if the examiner had recorded levels of joint stability corresponding to 2+ (“5-10 millimeters”) or 3+ (“10-15 millimeters”) after one or more of the tests, then a rating higher than 10 percent for moderate or severe instability might be appropriate. But the evidence weighs against the assignment of a higher rating. For these reasons, the Board will move forward the effective date of the 20 percent rating under DC 5260 to December 1, 2019 and the effective date of the 10 percent rating under DC 5257 to July 23, 2015. With these exceptions, the preponderance of the evidence weighs against the assignment of higher disability ratings for the Veteran’s service-connected right knee disability. REASONS FOR REMAND Although the Board regrets the need for further delay, it is necessary to remand the issue of service connection for a claimed disability manifested by joint and muscle pain for further development. As noted, when a Persian Gulf veteran exhibits objective indications of chronic disability that may be manifestations of undiagnosed illness, VA is authorized to award service-connected disability compensation despite the absence of a specific diagnosis. 38 C.F.R. § 3.317(b). During the initial development of this claim, the AOJ obtained an examination report concerning fibromyalgia, dated May 2014. According to the examiner, there were no physical findings, signs, or symptoms attributable to fibromyalgia. The examiner wrote that, “His symptoms are only associated with the joints and when they flare. He denies generalized muscle aches or migrating pain and stiffness. The joint aches that [the Veteran] describes are the joints found claimed and discussed in the knee/hip/wrist [questionnaires], he denies migrating joint pains or involvement of any other joints.” The examiner also offered the following response to a request for an opinion on any claimed disability manifested by joint and muscle pain: “there is insufficient evidence to warrant a diagnosis of an acute or chronic bilateral hip condition, muscle pain, joint pain or fatigue disorder or its residuals, therefore no Gulf War opinion is given.” The second quotation seems to misunderstand the operation of the Gulf War presumptions, which, under certain circumstances, authorize compensation for a disability only in the absence of a clear diagnosis. The Board has considered the possibility that this statement might be harmless error if, based on the available medical evidence, all the Veteran’s claimed joint and muscle pains may be attributed to a known clinical diagnosis. But the record is uncertain on this point. According to the VA treatment records, the Veteran has been receiving physical therapy for lower back pain and spasms. Emergency room notes from the summer of 2019 attribute this back pain to a motor vehicle accident in June of that year. But treatment records from before the accident, dated April and May of 2019, also report complaints of chronic low back pain, in addition to chronic pain in other joints. Under these circumstances, it is necessary to remand the joint and muscle pain claim for a new examination. The post-remand examiner should prepare an opinion addressing whether the Veteran’s joint and muscle pain, including his lower back pain, are symptoms of an undiagnosed illness or of a medically unexplained chronic multi-symptom illness pursuant to 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment since October 2020. 2. Forward the claims file, including previous examination reports and a copy of this remand, to a qualified person for preparation of a medical opinion on the nature and etiology of the Veteran’s claimed disability manifested by joint and muscle pain. If a new examination is needed before the requested opinion can be prepared, a new examination should be arranged. The examiner is asked to address the following: (a) Does the Veteran have a diagnosable current disability manifesting by joint and muscle pain, including back pain? (b) If the Veteran has a diagnosable disability manifesting in joint and muscle pain, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in or is in any way related to his military service? (c) If the Veteran does not have a diagnosable disability manifested by joint and muscle pain, please detail the symptoms the Veteran complaints (e.g., pain) and specifically note if there are objective indications of chronic disability (to include due to undiagnosed illness). If the Veteran does not have a diagnosable condition, please indicate whether, based on a review of the record, this undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2021. Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. A complete rationale should be provided for all opinions offered by the examiner. If the examiner cannot offer any opinion without resorting to speculation, he or she should explain why an opinion cannot be offered and what additional information would be necessary before an opinion could be offered. 3. The AOJ must ensure that the requested opinion complies with these instructions. If the report is insufficient, the AOJ should return the examiner's report for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.