Citation Nr: 21063540 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-37 378 DATE: October 14, 2021 ORDER Service connection for a thoracolumbar spine disability is granted. Service connection for residuals of a stroke is denied. A rating in excess of 20 percent for the service-connected impairment of the right knee based upon instability is denied. An initial rating in excess of 10 percent for the service-connected right knee limitation of motion is denied. An initial compensable rating of 10 percent for the service-connected right knee disability based on symptomatic removal of semilunar cartilage is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's current thoracolumbar spine disability is etiologically related to his service. 2. The weight of the evidence is against a finding that the Veteran's stroke (and residuals thereof) is etiologically related to his service. 3. At no time during the appeal period has the Veteran's service-connected right knee disability required assistive devices prescribed by a medical provider or has it manifested in severe recurrent subluxation or lateral instability. 4. At no time during the appeal period has the Veteran's service-connected right knee disability resulted in extension functionally limited to 15 degrees or more or flexion functionally limited to 45 degrees or less. 5. The Veteran's right knee disability has remained symptomatic post-semilunar cartilage removal with symptoms not otherwise compensated under other assigned disability ratings; but has not resulted in ankylosis; dislocated meniscus causing locking; an impairment of the tibia and fibula; or genu recurvatum at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a stroke have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 20 percent for the service-connected impairment of the right knee based upon instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 4. The criteria for an initial rating in excess of 10 percent for the service-connected right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for an initial 10 percent disability rating, but no higher, for the Veteran's right knee disability based on symptomatic removal of semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DCs 5256, 5262, 5263, 5258, and 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to October 1976. This case was previously before the Board of Veterans' Appeals (Board) in March 2019. At that time, the Board remanded the Veteran's claims for further development. The Board also notes that, at that time, the issue of entitlement to an earlier effective date for the award of service connection for right knee limitation of extension was remanded for the Regional Office (RO) to issue a statement of the case (SOC). Such SOC was rendered in December 2019, but the Veteran did not subsequently file a timely formal appeal to the Board on this issue, so the Board does not have jurisdiction to render a decision on the earlier effective date issue at this time. In July 2019, the Veteran's representative submitted a letter in which he requested to withdraw representation. The letter indicates that the Veteran was informed of the requested withdrawal. However, an attorney may not withdraw representation of a veteran after the he or she has previously agreed to act as representative in an appeal before the Board, absent a showing of good cause on motion. 38 C.F.R. § 20.6 (a)(2). As good cause was not provided for the attorney's request to withdraw representation, the Board continues to recognize him as the Veteran's representative. The Board acknowledges that the Veteran's representative has argued that 38 C.F.R. § 20.608(a) (2018) applies to his withdrawal. This regulation is the prior version of the current regulation codified at 38 C.F.R. § 20.6. Regardless, both versions of the regulation governing the process for withdrawal of a representative clearly state that the procedures specified above apply when a representative has previously agreed to act as representative in an appeal before the Board, which this representative had done when the appeal was previously before the Board in March 2019. Thus, his argument that the withdrawal of representation was done "prior to certification of the appeal to the [Board]" does not apply simply because the appeal was remanded to the RO at the time the withdrawal was submitted. As good cause has not been shown, the request to withdraw representation is not allowed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Thoracolumbar Spine Disability The Veteran seeks service connection for a thoracolumbar spine disability. His VA treatment records reveal that he has been shown to have arthritis of the thoracic spine as early as 2004 and arthritis of the lumbar spine since it was diagnosed, along with lumbar spine spondylolisthesis, with imaging studies performed at a November 2020 VA back conditions examination. Thus, the current disability prong of this issue has been met. The remaining question is whether this condition onset in service or can be medically related to any in-service incident or injury. In this regard, the Board notes that the Veteran's service treatment records (STRs) reveal that he was clinically evaluated as normal as to all body systems other than his feet at his September 1972 entrance examination. He also reported no history of recurrent back pain on the concurrent entrance report of medical history. His STRs also contain many events where he sought treatment for back issues. On May 1, 1973, he sought treatment for left thoracic spine pain. May 1973 imaging studies of his thoracic spine performed in service revealed that he had a thoracic curvature of the spine, but they were not shown to have revealed arthritis of the thoracic spine at that time. On March 6, 1974, he sought treatment for chronic low back pain which he had been experiencing for a year. The Veteran reported to the November 2020 VA back conditions examiner that he experienced back pain since he was 13 years old, but was told by doctors prior to service that he had "muscle spasms" or that there was "nothing wrong" with him. As his current arthritis disabilities were not shown on imaging studies in service, and as imaging of his lumbar spine was not then performed and imaging of his thoracic spine performed less than a year into his service did not then reveal arthritic changes, the Boards finds it is possible that the back pain he complained of as a young teen was related to his thoracic curvature condition, which may or may not be considered to have pre-existed service as a congenital condition. As an aside, the Board notes that an analysis on the pre-existing nature of his thoracic spine curvature is not relevant for this decision for service connection for his other current diagnosed back disabilities. Thus, VA has not shown that his current thoracolumbar arthritis clearly and unmistakably pre-existed service, and the presumption of soundness as to thoracolumbar arthritis has not been rebutted in this case, despite the statements he made to the examiner about having experienced back pains in his early teen years. The Veteran also reported to the 2020 VA examiner that he treated several times in service for back pain while on active duty. As previously discussed, such is corroborated by the evidence of record. He also reported that he would see a doctor every year since service for his back pain. Thus, the Veteran contends that his current thoracolumbar arthritic pain symptoms onset in service and have continued since that time. The Board finds his competent lay reports as to the onset and history of his back symptoms to be credible, and his lay statements are sufficient to establish the in-service onset for his thoracolumbar spine disability. The Board notes that the November 2020 VA back conditions examiner opined against service connection in this matter. While the Board cannot ignore or disregard this VA examiners' medical conclusion [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the examiner seemed only to render an opinion on the etiology of the Veteran's lumbar spine diagnoses, and found they were not related to the Veteran's service because the back pain complaints shown in his STRs related to his thoracic spine only. As previously discussed, this is incorrect, as the Veteran's STRs clearly show that he complained of both lumbar and thoracic spine pain in service. Further, the examiner did not seem to opine at all on the etiology of the Veteran's thoracic spine arthritis. Thus, his negative nexus opinion is inadequate as it is nonexistent regarding the Veteran's thoracic spine arthritis and it is based upon an incorrect factual assertion regarding the Veteran's lumbar spine disability. As such, the Board affords this opinion no probative value as evidence which stands to refute the Veteran's competent, credible reports of an in-service onset of the symptoms of his current thoracolumbar spine disability. The Board finds that service connection is warranted for this thoracolumbar disability. Not only has the Veteran provided competent, credible reports of his thoracolumbar spine disability symptoms since active service, but there is no competent medical evidence to refute his evidence of an in-service onset for his current thoracolumbar disability. Thus, the weight of the pertinent evidence clearly supports a finding that his current thoracolumbar spine disability is medically related to service, as it is a chronic condition which onset in service. Service connection is warranted for his thoracolumbar spine disability. Residuals of a Stroke The Veteran also seeks service connection for residuals of a stroke. As an initial matter, the Board notes that the Veteran has not been afforded a VA examination for his stroke or residuals thereof. However, the Board finds that such an examination is not required in this case. In deciding whether the duty to assist requires that a VA medical examination be provided or that a medical opinion be obtained with respect to a veteran's claim for benefits, there are four factors for consideration(1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with a veteran's service or with another service-connected disability; and (4) whether there is otherwise sufficient competent medical to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, as discussed in further detail below, the evidence does not support a finding that the Veteran sustained a stroke in service. The United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Likewise, there is no suggestion from any competent source to suggest that his stroke may have begun during, or been otherwise caused by, his military service. Thus, a VA examination and/or opinion is not necessary to decide this claim. Turning to the merits of this service connection claim, medical records obtained by the Social Security Administration (SSA) show that the Veteran suffered a stroke in 2013 with ongoing residuals. Thus, the current disability prong of this issue has been met. However, this is the only prong of service connection which has been met for the Veteran's residuals of a stroke claim. As to the in-service injury prong of this issue, the STRs are silent as to any mention that the Veteran had a stroke in service, or sustained any other cerebrovascular or neurological defects therein. He has also not attempted to identify an in-service event to which he purports his 2013 stroke can be medically related. To the contrary, medical records submitted by SSA show that he was treated for a left hemispheric cerebrovascular accident with right hemiplegia and sensory changes/closed head trauma at a private hospital beginning on September 30, 2013, and that an October 1, 2013, MRI verified that he sustained a cerebrovascular accident (stroke). Further, none of these records contain evidence suggesting an in-service onset of his stroke. As such, there is simply no evidence of an in-service onset of this disability or any in-service event to which this disability could medically be linked. Lacking an in-service injury to which his current stroke residuals could be medically related, service connection cannot be established. In addition, there is no medical evidence of record suggesting that the Veteran's stroke or residuals thereof could be related to any incident of service. The Veteran has not identified any other records which could possibly show such a relationship, nor has he stated that any medical provider ever told him that such a relationship was possible. As such, there is also no evidence tending to link medically his residuals of a stroke to any incident of service. In light of the above, the weight of the competent evidence of record goes against a finding that the Veteran's stroke was incurred in service or that his current stroke residuals are medically related to any incident of service. The elements of service connection for the Veteran's residuals of a stroke are not met, and service connection for residuals of a stroke is not warranted. In reaching this decision, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the appeal must be denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating in excess of 20 percent for the service-connected impairment of the right knee based upon instability Initial rating in excess of 10 percent for the service-connected right knee limitation of motion The Veteran contends that higher ratings are warranted for his service-connected right knee disability. He is currently assigned a 20 percent rating for right knee instability under 38 C.F.R. § 4.71a, DC 5272 and a 10 percent rating for limitation of motion under 38 C.F.R. § 4.71a, DCs 5010-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. 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. As pertinent to the present appeals, DCs 5010 and 5257 were amended, as discussed further below. 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, the amended diagnostic codes can only be applied in this matter from February 7, 2021, forward. Prior to February 7, 2010, DC 5010 referred to "arthritis due to trauma," and stated that traumatic arthritis is to be rated under DC 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint. However, if limitation of motion of the knee is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be assigned. See 38 C.F.R. § 4.71a, DC 5003. From February 7, 2010, DC 5010 refers to "post-traumatic arthritis," and states that such arthritis is to be rated as limitation of motion, dislocation, or other specified instability of the affected joint. Prior to February 7, 2021, DC 5257 applied to knee recurrent subluxation or lateral instability and provided a 20 percent rating 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. 38 C.F.R. § 4.71a, DC 5257. Words such as "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Effective February 7, 2021, DC 5257 applies to recurrent subluxation or instability and patellar instability. For recurrent subluxation or instability, a rating above 20 percent can be assigned as follows: 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 rating above 20 percent can be assigned as follows: 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. 38 C.F.R. § 4.71a, DC 5257. As previously mentioned, other rating criteria for the knee, such as DCs 5256, 5258, 5259, 5260, 5261, 5262, and 5263, remained unchanged in the February 2021 revisions. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 rating. 38 C.F.R. § 4.71a, DC 5261. Limited motion of a knee disability can also be rated under DC 5260. Under DC 5260, a noncompensable rating is warranted for flexion of a knee 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. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Additionally, painful motion is an important factor of disability; and 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. 38 C.F.R. § 4.59. Further, under DC 5259, a 10 percent rating is assigned for removal of semilunar cartilage (meniscus) that is symptomatic. 38 C.F.R. § 4.71a, DC 5259. Other diagnostic codes relating to the knees are DC 5256 for ankylosis; DC 5258 for dislocated meniscus with frequent locking, pain, and effusion; DC 5262 for impairment of tibia and fibula; and DC 5263 for genu recurvatum. Those conditions are not shown on examination, or in the medical evidence of record, and the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. In the current appeal, the Veteran underwent a VA knee conditions examination in October 2014. The examiner noted that the Veteran was diagnosed with right knee degenerative arthritis, status post 1975 injury and surgical reconstruction (of torn medial collateral ligament and ACL). The Veteran reported not having treated for his right knee disability since the 1970s. He gave up martial arts and basketball 20 years prior, but still walked fast and tried to keep active to help his right knee. He lived on a second-floor apartment and would have to pause to rest his right knee while climbing the stairs to his apartment. He denied experiencing falls, but stated that his right knee would occasionally nearly give-out on him. He could walk two blocks before having to pause and rest his right knee due to pain, but did not experience constant or nocturnal pain. He would experience knee pain daily when walking or weight bearing, and was unable to kneel on the right side. The Veteran denied experiencing swelling, redness, "true locking," crepitus, or right leg weakness. He denied any back or left knee problems. He reported not experiencing flares, incapacitations, or having needed urgent treatment related to his right knee. He used a self-prescribed walking cane most days for the prior ten years and would take ibuprofen for right knee pain a couple times a week. The examiner noted that the Veteran did not report that flare-ups impacted the function of his right knee and/or lower leg. On examination, range of motion testing revealed right knee flexion to 110 degrees and extension to five degrees. There was no objective evidence of painful motion on flexion or extension. The Veteran was able to perform repetitive-use testing with three repetitions, but no additional limitation of motion resulted in the right knee or lower leg. The examiner stated that the Veteran had functional loss and/or impairment of the right knee and lower leg in that he experienced less movement than normal and disturbance of locomotion. There was no pain or tenderness on palpation for the right knee joint line or soft tissues. All muscle strength tests were normal, as were anterior instability and posterior instability tests. Medial-lateral instability testing revealed instability of 1+ (zero to five millimeters). There was no evidence or history of recurrent patellar subluxation or dislocation, and the Veteran had never had shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment of the right knee or leg. The examiner noted that the Veteran had undergone a surgical procedure for a meniscus condition, and he had had a meniscal tear and frequent episodes of joint pain. The Veteran underwent a meniscectomy of his right knee in 1977 with his ACL reconstruction, and had residual signs and/or symptoms or right knee pain and mild genu valgum deformity. He was also noted as regularly using a cane to assist with ambulation. There was no X ray evidence of patellar subluxation. The Veteran underwent another VA knee conditions examination in April 2017. The examiner noted that the Veteran had sustained a right knee strain, cruciate ligament tear, and instability in 1975, for which he underwent surgery in 1977. He had also been diagnosed with osteoarthritis of the right knee in 2014. The Veteran reported not having undergone treatment for his right knee since service, but he had a brace from the military and currently used a simple neoprene knee wrap brace to prevent the knee from buckling. He also used a cane, but mostly for ambulating outdoors. The Veteran complained of burning sensory changes of the anterior medial tibia since undergoing surgery of the right knee in 1977. He did not report experiencing flare-ups of the right knee and/or lower leg. He reported experiencing functional loss and/or limitation from his right knee disability in that his right knee would buckle and give way due to ligament insufficiency and laxity. On examination, right knee range of motion testing results were as follows: flexion to 125 degrees and extension to 10 degrees. This limited motion contributed to functional loss in that the Veteran experienced a loss of ability to flex, resulting in limitations in squatting. The loss of full extension caused him to have a limp and produced a greater likelihood of his knee buckling during his gait due to quad weakness. Pain was noted on examination on both flexion and extension but did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the right knee, specifically, the area over distribution of infrapatellar branch saphenous nerve with mild decrease to light touch and sensitivity to light touch. There was also objective evidence of right knee crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, and no additional functional loss or limitation of range of motion resulted. He was not examined immediately after repetitive use over time, but the examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Fatigue, weakness, and lack of endurance would significantly limit functional ability with repeated right knee use over a period of time, but did not result in an additional decrease in range of motion movements. The examiner noted that additional contributing factors of the Veteran's right knee disability included less movement than normal due to ankylosis, adhesions, etc.; weakened movement due to muscle or peripheral nerve injury, etc.; atrophy of disuse; disturbance of locomotion; and the knee giving way due to ligament laxity. Muscle strength tests revealed active movement with gravity eliminated on flexion and palpable or visible muscle contraction, but no joint movement on extension. There was a reduction in muscle strength and there was muscle atrophy, both due entirely to the Veteran's service-connected right knee disability. The atrophy was located in the Veteran's right thigh. Although the examiner had previously mentioned that the Veteran experienced less movement than normal due to factors including ankylosis, he clarified that the Veteran did not have ankylosis in the right knee. There was also no history of recurrent subluxation, lateral instability, or recurrent effusion of the right knee. Right knee joint stability testing was performed and revealed anterior and medial instability of 2+ (five to ten millimeters); but anterior and lateral instability tests were normal. The examiner also stated that the Veteran did not have pain with the right knee laxity tests, but medial crepitus was present with valgus stress applied, and there was opening of the medial joint space. The Veteran had not ever had right knee recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not have a meniscus condition, but had undergone a meniscectomy in the 1970s with residual symptoms of ligament laxity as described, with limited motion and muscle atrophy. To assist with locomotion, the Veteran constantly used a right knee brace and occasionally used a cane due to his right knee disability. There was no evidence of pain on passive range of motion testing or when the right knee was used in weight bearing and non-weight bearing. In November 2020, the Veteran underwent another VA knee examination. The examiner noted that the Veteran had right knee arthritis, general impairment, and limitation of motion. The Veteran reported that his symptoms had worsened since he was examined by VA in 2017, and he was experiencing numbness and tingling in the right shin that was only evidenced when touched. He stated that his right knee would give out on him frequently and his range of motion was limited, but he did not have pain in the knee. He was only treating with over-the-counter pain medications as needed. The Veteran did not report experiencing flare-ups of his right knee disability, but experienced functional loss in that he could not run far without his knee giving out and that it would not bend. On examination, range of motion measurements for the Veteran's right knee were as follows: flexion to 90 degrees and extension to five degrees. No pain was noted, but the limited range of motion prevented the Veteran from fully bending his knee as required to perform activities of daily living. There was no evidence of localized tenderness or pain on palpation of the right knee or associated soft tissue. There was no evidence of pain with weight bearing, but there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. He was not examined after repeated use over time, but the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Fatigue and weakness would significantly limit functional ability with repeated use over a period of time, such that his flexion would further be reduced to 70 degrees. There were no additional factors contributing to disability of the Veteran's right knee. Muscle strength testing revealed a reduction in right knee muscle strength entirely due to the Veteran's service-connected right knee disability, and muscle strength on both flexion and extension was a level four out of five. The Veteran did not have muscle atrophy or ankylosis of the right knee, nor did he have a history of right knee recurrent subluxation, lateral instability, or effusion. Right knee joint stability testing was performed, and anterior and medial instability tests revealed instability of a level 1+ (zero to five millimeters), while posterior and lateral instability tests were normal. The examiner noted that the Veteran had never had recurrent patellar dislocation; shin splints; stress fractures; chronic exertional compartment syndrome; or any other tibial or fibular impairment; nor did the examiner find that the Veteran had genu recurvatum. The Veteran did not have any meniscal conditions, but had undergone a meniscectomy with his right knee reconstruction in the 1970s, with residual symptoms of numbness along his right shin and limited range of motion. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's service-connected right knee disability. To assist with ambulation, the Veteran regularly used a brace and cane for his right knee disability. There was no objective evidence of pain on passive range of motion testing or when the right knee was used in non-weight bearing. No medical treatment records associated with the claims file indicated that the Veteran's right knee symptoms were more severe than those exhibited on VA examinations during the appeal period. Rather, the Veteran did not seek treatment with medical providers for his right knee disability, as he reported to VA examiners, detailed above. In light of the above, the Board finds that the Veteran's right knee has not met the criteria for a rating in excess of 20 percent at any time during the appeal period under DC 5257, either under the provisions in effect prior to, or since, February 2021. The Veteran has not been shown to have been prescribed his assistive devices of his knee brace or cane by a medical provider. Although he used these devices to assist with ambulation, he admitted to the 2014 VA examiner that his cane was self-prescribed, and he reported not having sought medical treatment for his right knee during the period on appeal. Thus, there is no evidence that a medical provider prescribed his assistive devices during the period on appeal. As such, a rating in excess of 20 percent under the revised DC 5257 criteria is not warranted, as such a rating would require the use of assistive devices prescribed by a medical provider. He also does not meet the criteria for a rating in excess of 20 percent under the prior version of DC 5257, as the evidence does not suggest that his right knee symptoms manifested with severe recurrent subluxation or lateral instability. To the contrary, lateral instability tests were consistently normal on examination, and no examiner found that the Veteran experienced any recurrent subluxation, much less severe recurrent subluxation. Thus, a rating in excess of 20 percent for the service-connected impairment of the right knee based upon instability is not warranted. The Board also finds that the Veteran's right knee limitation of motion has not met the criteria for a rating in excess of 10 percent at any time during the appeal period under DC 5261. Such a rating would require, at a minimum, extension limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5261. The Veteran has also not met the criteria for a separate compensable rating under DC 5260 for limitation of flexion, which would require, at a minimum, flexion limited to 45 degrees. The Veteran's right knee has not exhibited such limited motion at any time on appeal. In fact, the most restrictive range of motion measurements in the Veteran's right knee during the entire period were flexion to 70 degrees and extension to 10 degrees. The Board also notes that the Veteran's right knee flexion has not even warranted a noncompensable evaluation under DC 5260, which requires flexion limited to 60 degrees. Thus, there are no criteria which would allow a rating in excess of 10 percent for the Veteran's right knee limitation of extension, or for a separate compensable rating to be assigned for right knee limitation of flexion. However, the Board's analysis is not yet complete. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board must consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 43. Here, the Veteran has shown and attested functional limitation in his bilateral knees. However, repetitive motion testing was not shown to cause such additional limitation of motion as to suggest that the flexion or extension in his right knee was functionally limited to a level warranting higher or additional compensable ratings. Moreover, pain was not shown to occur prior to the stopping points at such a range of motion with regard to either flexion or extension on the right knee. The Board also finds that entitlement to a separate compensable rating under DC 5259 for symptomatic meniscectomy has been raised by the record, and a compensable knee rating can be given under DC 5259 for symptomatic meniscectomy. All VA examiners noted that the Veteran underwent a right knee meniscectomy related to his service-connected right knee disability in the 1970s. Further, symptoms have been shown to persist from this meniscectomy which have not otherwise been accounted for in ratings currently assigned for the Veteran's right knee disability. Specifically, during the appeal period, examiners have noted that the Veteran's meniscectomy resulted in residual symptoms of mild genu valgus deformity (See 2014 VA knee conditions examination report); muscle atrophy (See 2017 VA knee conditions examination report); and numbness along his right shin (See 2020 VA knee conditions examination report). Accordingly, a 10 percent rating is assigned for symptomatic removal of meniscus under DC 5259 throughout the period on appeal. This is the highest rating available under DC 5259. The Board has also considered whether separate compensable ratings are available for the Veteran's service-connected right knee disability under other diagnostic codes available for knee disabilities. However, the Veteran's right knee condition has not resulted in symptoms during the appeal period such as ankylosis; dislocated meniscus with frequent locking, pain, and effusion; impairment of tibia and fibula; or genu recurvatum. See 38 C.F.R. § 4.71a, DCs 5256. 5262, 5263, and 5258. In conclusion, the Board finds that the preponderance of the evidence is against the claims for an initial rating in excess of 10 percent for the service-connected right knee limitation of motion and is also against the claim for a rating in excess of 20 percent for the service-connected impairment of the right knee based upon instability. In denying such ratings, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert, 1 Vet. App. at 53-56. However, because the preponderance of the evidence is against the claims, the claims must be denied. Nevertheless, the Board also finds that a separate initial compensable 10 percent rating is warranted under DC 5259 for symptomatic meniscectomy of the Veteran's right knee, and such additional rating is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.