Citation Nr: 21061587 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-04 971 DATE: October 4, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is dismissed. Entitlement to an initial rating in excess of 10 percent for a thoracic strain is denied. Entitlement to an initial rating in excess of 10 percent for a right knee strain is denied. Entitlement to an initial rating in excess of 10 percent for right knee instability is denied. FINDINGS OF FACT 1. A September 2020 rating decision granted service connection for a left knee disability; accordingly, there is no justiciable issue before the Board. 2. Throughout the period on appeal, the Veteran's thoracic strain was manifested by pain, tenderness, and forward flexion limited to 65 degrees, at worst, and combined range of motion limited to 195 degrees, at worst, with no objective evidence of guarding or muscle spasm, ankylosis of the entire thoracolumbar spine, intervertebral disc syndrome. 3. Throughout the appeal period, the Veteran's right knee strain was manifested by pain, swelling, popping, and flexion limited to 125 degrees, at worst, with no objective evidence of ankylosis, meniscal condition, impairment of the tibia and fibula, or genu recurvatum. 4. Throughout the appeal period, the Veteran's right knee instability was not symptomatic and did not require a prescription for an assistive device. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the claim for service connection for a left knee disability because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. 2. Throughout the period on appeal, the criteria for an initial disability rating in excess of 10 percent for thoracic strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. Throughout the period on appeal, the criteria for an initial disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. Throughout the period on appeal, the criteria for an initial disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2010 to May 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in April 2020 for further development. The Veteran testified at a videoconference hearing before the undersigned in November 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is dismissed. As a general matter, the grant of a claim of service connection constitutes an award of the full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. The Veteran's claim for service connection for a left knee disability was remanded by the Board in April 2020. In a September 2020 rating decision, the Veteran was granted service connection for a left knee disability and for scars associated with the left knee disability. As this claim has been resolved by a full grant of benefits, they are no longer in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). As such, there is no justiciable issue before the Board and the appeals are dismissed for lack of subject matter jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). 1. Entitlement to an initial rating in excess of 10 percent for a thoracic strain is denied. The Board notes that the schedular criteria for rating the spine have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5242 included degenerative disc disease (other than intervertebral disc syndrome) with degenerative arthritis, Diagnostic Code 5243 (intervertebral disc syndrome) specified that it should only be assigned where there was disc herniation with compression and/or irritation of the adjacent nerve root and other disc diagnoses were to be rated under Diagnostic Code 5242, and Diagnostic Code 5244 was added to rate traumatic paralysis, specifically paraplegia (rated under Diagnostic Code 5110) and quadriplegia (to be rated separately under Diagnostic Codes 5109 and 5110 and evaluations combined in accordance with 38C.F.R. §4.25 ). See 85 Fed. Reg. 76,453 76,469 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. However, all other rating criteria for the spine, to include the General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating IVDS Based on Incapacitating Episodes remain unchanged. Further, Diagnostic Codes 5235 to 5243 are still evaluated the General Rating Formula for Diseases and Injuries of the Spine unless 5243 is evaluated under the Formula for IVDS Based on Incapacitating Episodes. See 85 Fed. Reg. 76,453, 76,469 (November 30, 2020). Here, the Veteran has not been found to have IVDS in the December 2016 or August 2020 VA examinations. As such, the Board concludes that the application of the amended rating criteria would not result in a higher disability rating for the Veteran's thoracic strain from February 7, 2021, forward. The Veteran's thoracic strain is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237, under both the old and new criteria, is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is assigned where there is 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (Combined Ratings Table). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings will apply: A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. In a December 2016 VA examination, the Veteran reported that he had persistent back pain since service. This was located in his left upper paraspinal area and did not radiate. He also reported that his back pain flared up, although he could not identify any specific triggers. Light weightlifting seemed to help. His reported functional loss included modifying activities to not exacerbate his left upper back pain. Pain occasionally interfered with his sleep. Initial range of motion testing showed forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion of the thoracolumbar spine was 210 degrees. The examiner found that the abnormal range of motion itself contributed to functional loss as the Veteran had pain with extending his back. His initial attempt showed 20 degrees of extension with pain and repeated attempts showed 10 degrees of extension due to pain. Pain on extension was noted on examination which caused functional loss. There was tenderness to palpation on the left paraspinal area. Repetitive use testing showed forward flexion to 70 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, right and lateral rotation to 30 degrees. The combined range of motion of the thoracolumbar spine was 200 degrees. The Veteran was not examined immediately after repeated use over time or during a flare up and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no guarding or muscle spasm, reduction in muscle strength, muscle atrophy, radiculopathy, ankylosis, or IVDS. The Veteran occasionally used a brace if he needed to do lifting, like moving furniture. The examiner found that it was not medically appropriate to address whether there was evidence of pain on passive range of motion testing or whether the opposing joint was undamaged. There was no evidence of pain when the spine was used in non-weight bearing. At the November 2019 hearing, the Veteran reported that his back symptoms were the same as they were in the past, but had worsened. He had severe pain in the chest area that radiated to the middle of his back. He stated that his doctors had said that this was a muscle spasm and that it went on for 15 to 30 minutes. When he had pain, the Veteran had to stay in place. He described that it almost immobilized him, sometimes to the point where he had to stand. He could not sit because he felt that sitting "[bound] him up more." In an August 2020 VA examination, the Veteran soreness and stiffness in his back. He could lift or carry for long periods of standing in any one position with increased ache in the mid-upper back. This ache made him feel like he needed to stretch and occurred daily. He had full activities of daily living. He had flare ups including limited motion with bending forward as the mid-back was sore and stiff on a daily basis. His reported functional loss included limited motion due to pain. Initial range of motion testing showed forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion of the thoracolumbar spine was 210 degrees. There was pain on flexion, extension, and right and left lateral flexion which contributed to functional loss. There was also pain with weight bearing and mild tenderness to palpation. Repetitive use testing showed no additional functional loss. The Veteran was not examined immediately after repeated use over time or during a flare up. However, the examiner found that pain significantly limited functional ability with repeated use over time and with flare ups. Estimated range of motion after repeated use over time was forward flexion to 65 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion was 205 degrees. Estimated range of motion during flare ups was forward flexion to 65 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, right and left lateral rotation to 30 degrees. The combined range of motion was 195 degrees. There was no guarding or muscle spasm, reduction in muscle strength, muscle atrophy, radiculopathy, ankylosis, or IVDS. There was evidence of pain with weight bearing and non-weight bearing that was mild in severity. Passive motion was not tested. The examiner noted that while a physician had found that it was possible that the Veteran had thoracic radiculopathy, this was ruled out by a nerve conduction study. The examiner further found that there was no evidence to indicate any radiculopathy associated with the thoracic spine. The Veteran's vague complaints of anterior pain in the chest region was associated with his service-connected torn pectoralis. This explained the Veteran's symptoms that had been diagnosed as thoracic radiculopathy. The examiner noted that the Veteran had been diagnosed with left carpal tunnel syndrome, but found that this had nothing to do with the thoracic spine as this was caused by compression in the wrist. Post-service VA treatment records showed consistent complaints of chronic upper back pain. Tenderness to palpation was also noted. In February 2019, the physician noted that the Veteran possibly had radiculopathy. In April 2019, it was noted that the Veteran had chest pain radiating from mid-spine to the sternum. Electrodiagnosis showed no evidence of thoracic radiculopathy left. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the December 2016 and August 2020 VA examinations, the Veteran indicated that he had flare ups of his thoracic spine disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the December 2016 VA examination report did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion as the August 2020 VA examination did estimate functional loss during flare ups. In the December 2016 VA examination, the Veteran had forward flexion to 70 degrees and a combined range of motion of 200 degrees after repetitive use testing. By the August 2020 VA examination, his forward flexion and combined range of motion, during flare-ups, were reduced to 65 degrees and 195 degrees, respectively. As such, the Board would expect that similar findings, but no worse, would have been shown at the time of the December 2016 VA examination report. Additionally, contemporaneous post-service treatment records do not indicate that the Veteran's range of motion during a flare up would have been limited to forward flexion of 60 degrees or less or combined range of motion of 120 degrees or less. As the contemporaneous evidence, to include the August 2020 VA examination, does not indicate that the December 2016 VA examiner would have found forward flexion limited to at least 60 degrees or combined range of motion limited to at least 120 degrees during flare ups, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). Based on a careful review of all of the subjective and clinical evidence, the Board finds that the Veteran's thoracic strain does not warrant an initial disability rating in excess of 10 percent. In other words, the evidence does not show that the Veteran's thoracic strain manifested in forward flexion at 60 degrees or less, combined range of motion at 120 degrees or less, muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. Indeed, the August 2020 VA examination shows that the Veteran's forward flexion was limited to 65 degrees at worst and combined range of motion was limited to 195 degrees at worst on flare-ups. Further, the December 2016 and August 2020 VA examiners did not find guarding, muscle spasm, or ankylosis. Additionally, the evidence of record did not show functional equivalent to ankylosis as contemplated by General Rating Formula for Disease and Injuries of the Spine, such as fixation of a spinal segment, difficulty walking due to limited line of vision, restricted opening of the mouth and chewing, limited breathing due to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Further, the clinical evidence, to include the VA examinations, do not show that the Veteran had IVDS. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's thoracic strain. Therefore, the benefit-of-the-doubt rule does not apply and an initial disability rating in excess of 10 percent for thoracic strain must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial rating in excess of 10 percent for a right knee strain is denied. 3. Entitlement to an initial rating in excess of 10 percent for right knee instability is denied. The Board notes that the schedular criteria for rating the knee have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. The Board notes that, pertinently, Diagnostic Codes 5003, 5010, 5055, and 5257 were amended. The other rating criteria applicable to the knee have not been changed. See 85 Fed. Reg. 76,453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. The Veteran's right knee strain is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 and his right knee instability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5257. Prior to February 7, 2021, Diagnostic Code 5257 applied to knee recurrent subluxation or lateral instability and provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating was provided for moderate recurrent subluxation or lateral instability of the knee. A 30 percent rating was provided for severe recurrent subluxation or lateral instability of the knee. Effective February 7, 2021, Diagnostic Code 5257 applied to recurrent subluxation or instability and patellar instability. For recurrent subluxation or instability, a 10 percent rating is provided for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provide for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent rating is provided for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a 30 percent rating is provided for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. All other rating criteria for the knee, such as Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, and 5263, remained unchanged. Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is defined as from 0 degrees to 140 degrees (extension to flexion). 38 C.F.R. § 4.71a, Plate II. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Diagnostic Codes 5003, 5010, 5055, 5256, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate degenerative or post-traumatic arthritis (Diagnostic Codes 5003 and 5010), knee replacement surgery or resurfacing (Diagnostic Code 5055), ankylosis of the knee (Diagnostic Code 5256), a meniscal condition (Diagnostic Codes 5258 and 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Thus, the Diagnostic Codes pertaining to such impairments are not applicable. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. In a December 2016 VA examination, the Veteran reported daily right knee pain occurring all day. When he sat, his right knee stiffened and got a deep ache. He also reported popping with certain movements and his knee giving way at times. His knee reportedly gave way two or three times year with it last occurring one month prior. The Veteran had right knee flare ups with prolonged sitting (i.e., car or airplane rides) resulting in pain and stiffness in both knees and with stairs resulting in pain in both knees. His reported functional loss included avoiding long rides in cars or airplanes and using elevators instead of stairs. Initial range of motion testing showed flexion to 140 degrees and extension to 0 degrees. Pain was noted on examination, but there was no evidence of pain with weightbearing. There was tenderness to palpation and objective evidence of crepitus. There was no additional functional loss after repetitive use testing. The Veteran was not examined immediately after repeated use over time or during a flare up and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no reduction in muscle strength, muscle atrophy, or ankylosis. The examiner noted that the Veteran had a history of slight right knee lateral instability. The Veteran also had a history of recurrent effusion, specifically when his knee gave out or hyperextended, he would have pain and some swelling in his right knee. The examiner further noted that the previous examiner had found some lateral instability on examination, but this examiner did not find as such. The Veteran occasionally used a brace for right knee instability. His functional impact of the Veteran's right knee disability included avoiding prolonged sitting, kneeling, and repetitively climbing up and down stairs. There was no evidence of pain on passive range of motion testing or with non-weight bearing. At the November 2019 hearing, the Veteran stated that he had x-rays taken of his knee that showed signs of arthritis. He reported pain and popping in his right knee. If he sat for more than a couple of minutes, he had to extend his knee and pop it because it felt as if it was locking up. He could not sit for prolonged periods of time. The Veteran drove for a living to get to different job sites and had to constantly stop to stretch his knee. He stated that it was common for his right knee to give way and that he used a brace he had purchased. In an August 2020 VA examination, the Veteran's reported that his right knee did not swell, but he had soreness and stiffness. When he climbed the stairs, his right knee felt like it wanted to buckle, hyperextend, or go out but he was unclear. The Veteran used a small brace that put pressure across his patella tendon which is where he described pain with a popping sensation. He reported daily flare ups with increased pain walking, lifting, carrying, running, bending, and squatting. Going down the stairs seemed to cause the maximum pain in his knees. His reported functional loss included limited motion due to pain. Initial range of motion testing showed flexion to 135 and extension to 0 degrees. Pain on flexion was noted which resulted in functional loss. There was pain with weight bearing, medial lateral joint line pain, and peripatellar pain with the patellar tendon tender on palpation. There was objective evidence of crepitus. Repetitive use testing showed no additional functional loss. The Veteran was not examined immediately after repeated use over time or during a flare up. However, the examiner found that pain significantly limited functional ability with repeated use over time and with flare ups. Estimated range of motion after repeated use over time was flexion to 130 degrees and extension to 0 degrees. Estimated range of motion during flare ups was flexion to 125 degrees and extension to 0 degrees. There was no reduction in muscle strength, muscle atrophy, ankylosis, or instability. The examiner noted that while lateral instability had been found in past examinations, it was not found during present examination, which could be due to some guarding. The Veteran regularly used a brace for right knee pain. There was objective evidence of pain with weight bearing, non-weight bearing, and passive motion in terminal flexion. This was consistent with mild severity. Post-service VA treatment records showed right knee pain and popping. A February 2018 MRI did not show arthritis. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the December 2016 and August 2020 VA examinations, the Veteran indicated that he had flare ups of his right knee disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the December 2016 VA examination report did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion. Although the December 2016 VA examination does not estimate the functional loss during flare ups, the August 2020 VA examination did estimate functional loss during flare ups. In the December 2016 VA examination, the Veteran had flexion to 140 degrees and extension to 0 degrees. By the August 2020 VA examination, his flexion was reduced to 125 degrees during flare ups. As such, the Board can only reflect that similar findings would have been shown in the December 2016 VA examination report. Additionally, contemporaneous post-service treatment records do not indicate that the Veteran's range of motion during a flare up would have been limited to flexion of 30 degrees or less or extension of 10 degrees or less. As the contemporaneous evidence, to include the August 2020 VA examination, does not indicate that the December 2016 VA examiner would have found flexion limited to at least 30 degrees or extension limited to at least 10 degrees during flare ups, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's right knee strain or right knee instability do not warrant initial disability ratings in excess of 10 percent under Diagnostic Codes 5260 or 5257. In other words, the Veteran's right knee strain did not manifest in flexion limited to at least 30 degrees or extension limited to at least 10 degrees. At most, the Veteran's flexion was limited to 125 degrees in the right knee. Additionally, the Veteran's right knee instability was not manifested by moderate or severe instability, as required by the old criteria, or a prescription by a medical provider for a brace, cane, or walker, as required by the new criteria. While the Veteran uses a brace, it does not appear that this was prescribed by a medical provider. Further, the contemporaneous treatment records, to include the December 2016 and August 2020 VA examinations, do not show that the Veteran's right knee instability was symptomatic. The Board is sympathetic to the Veteran's reported knee symptomatology; however, there is no basis upon which to award a higher 20 percent disability rating for his right knee disability under applicable diagnostic codes. (Continued on the next page) As noted above, the Board has considered whether a separate disability rating is appropriate under another diagnostic code. However, the evidence does not demonstrate ankylosis of the knee, meniscal condition, impairment of the tibia and fibula, or genu recurvatum. As such, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not applicable. Thus, separate ratings for the Veteran's right knee disability under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not supported by the evidence of record. Additionally, while the Board notes that the Veteran reported that he had been told his right knee showed signs of arthritis, the clinical evidence does not show that he has arthritis. As such, Diagnostic Codes 5003 or 5010 are not applicable. The Board finds that the preponderance of the evidence is against finding that initial disability ratings in excess of 10 percent are warranted for the Veteran's right knee strain or right knee instability. Therefore, the benefit-of-the-doubt rule does not apply and initial disability ratings in excess of 10 percent for right knee strain or right knee instability under Diagnostic Codes 5260 and 5257 must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.