Citation Nr: 21063566 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-51 522 DATE: October 14, 2021 ORDER 1. Entitlement to an initial compensable rating for epididymitis, with left hydrocele, is denied. 2. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) prior to December 6, 2019, and in excess of 50 percent, thereafter, is denied. 3. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome (right knee disability) is denied. 4. Entitlement to an initial rating in excess of 10 percent for left knee partial medial meniscotomy with patellofemoral pain syndrome (left knee disability) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's epididymitis has not resulted in complete atrophy of both testicles. 2. Prior to December 6, 2019, the Veteran's PTSD with MDD most nearly approximated impairment with occasional decrease in efficiency and intermittent periods of inability to perform tasks, although generally functioning satisfactorily. 3. Since December 6, 2019, the Veteran's PTSD with MDD has most nearly approximated occupational and social impairment with reduced reliability and productivity. 4. Throughout the appeal period, the Veteran's right knee has not demonstrated flexion limited to 30 degrees. 5. Throughout the appeal period, the Veteran's left knee has not demonstrated flexion limited to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for epididymitis, with left hydrocele, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code (DC) 7523 (2020). 2. The criteria for an initial rating in excess of 30 percent prior to December 6, 2019, and in excess of 50 percent thereafter, for PTSD with MDD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 4.130, DC 9411 (2020). 3. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5260 (2020). 4. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from June 2006 to September 2006; and from October 2009 to October 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded these matters for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to an initial compensable rating for epididymitis, with left hydrocele, is denied. The Veteran asserts that his epididymitis is worse than the currently assigned non-compensable rating. The Veteran's service-connected epididymitis is rated under DC 7523. 38 C.F.R. § 4.115(b). DC 7523 contemplates impairment due to complete teste atrophy and provides for the assignment of a non-compensable rating for complete atrophy of a single testicle. Assignment of a 20 percent rating is warranted for complete atrophy of both testicles. The Veteran has reported that his condition results in pain and discomfort. See VA Form 9 dated September 2016. In September 2014, the Veteran underwent a VA examination for his disability. He stated that he had been diagnosed with epididymitis in October 2013 and was prescribed a one-time antibiotic. He described chronic low-grade aching pain in his left testicle, as well as occasional sharp left groin pain. He did not take continuous medication for the condition and had not undergone an orchiectomy. There was no evidence of renal or voiding dysfunction, and the epididymis and testes were normal upon examination. A VA treatment record dated June 17, 2015, noted that the Veteran had been experiencing intermittent testicular pain for the past three years and documented two small hydroceles. In November 2019, the Veteran was afforded another VA examination for this condition. He described chronic pain in his left testicle that worsened throughout the day. He was diagnosed with erectile dysfunction at that time. He did not take continuous medication for the condition and had not undergone an orchiectomy. There was no evidence of renal or voiding dysfunction. The examiner noted moderate pain and tenderness of the left testicle, as well as mild to moderate pain of the left epididymis. In January 2021, the Veteran attended a third examination for his epididymitis. He reported experiencing intermittent pain for between two and three days each week. He was prescribed continuous medication for his erectile dysfunction and had not had an orchiectomy. He had been treated with oral antibiotics for the epididymitis on two occasions. There was no evidence of renal or voiding dysfunction. A physical examination was not completed per the Veteran's request. DC 7523 provides that in order for the Veteran to receive a compensable disability rating, there must be atrophy of both testes. Here, however, there is no evidence that the Veteran experiences atrophy of both testes. The VA examination reports of record noted pain and tenderness of the left testicle, but did not indicate that any atrophy had occurred in either testicle. Without any evidence of atrophy of both testes, a compensable rating under DC 7523 is not warranted. The Board has also considered whether a higher initial rating is warranted under any other diagnostic code. Schafrath v. Derwinski,1 Vet. App. 589, 595 (1991). The evidence does not reflect any removal of either testicle. See DC 7524. As there is no diagnosis of or treatment for any other disorder of the genitourinary system, the additional diagnostic codes under 38 C.F.R. § 4.115(b) are not applicable. Furthermore, the Veteran does not report, and the medical evidence does not show, that the Veteran has renal dysfunction, voiding dysfunction, or urinary tract infection associated with this condition. See 38 C.F.R. § 4.115(a). The Board notes that the Veteran's erectile dysfunction has been separately rated with a noncompensable disability rating, along with an award of special monthly compensation for loss of use of a creative organ. The medical record does not reflect evidence in support of a compensable rating for this condition. As such, the Board finds that the Veteran's epididymitis has not been manifested by symptomatology or findings more nearly approximating the criteria for a compensable rating under DC 7523 at any time during the appeal period. Therefore, a preponderance of the evidence is against a compensable initial rating for service-connected epididymitis, with left hydrocele. 2. Entitlement to an initial rating in excess of 30 percent for PTSD with MDD prior to December 6, 2019, and in excess of 50 percent, thereafter, is denied. Service connection for PTSD was granted in an October 2014 rating decision, at which time the RO awarded a 10 percent rating effective November 1, 2013. In a June 2020 rating decision, the RO increased the rating for this condition to 30 percent, effective November 1, 2013. In a September 2020 rating decision, the RO awarded a 50 percent rating for this condition, effective December 6, 2019. The Veteran's PTSD has been rated on the General Rating Formula for Mental Disorders under DC 9411. Under DC 9411, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). In September 2014, the Veteran was afforded a VA psychological examination. He reported distancing himself from others, losing interest in activities, and feeling numb. He further described symptoms including sleep impairment, hypervigilance, avoidance behaviors, and anxiety. The Veteran lived with his parents and indicated that he was socially active and involved with his church. He worked about 20 hours per week completing maintenance on rental properties. He denied any difficulty performing occupational tasks and had not missed time from work due to his PTSD. The examiner concluded that the Veteran's PTSD resulted in no more than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In the September 2016 VA Form 9, the Veteran stated that his PTSD resulted in depression, anxiety, sleep impairment, and some memory impairment. He avoided large crowds and was reluctant to try new things and meet new people. A VA treatment record dated July 23, 2018, documented the Veteran's reports of having a few close friendships, as well as positive relationships with his family. He remained physically active, attended church with his family, and was a self-employed contractor. In December 2019, the Veteran underwent another VA psychological examination. He described symptoms including avoidance tendencies, feelings of detachment, sleep impairment, hypervigilance, depression, anxiety, suspiciousness, mild memory loss, disturbance of motivation or mood, as well as an inability to maintain effective relationships. He remarried in 2019 and had a positive relationship with his wife. He reported that he was an independent contractor and had started his own home renovation business, which was going very well. He worked between 50 and 70 hours per week. He hoped to obtain his teaching certificate and teach elementary school. Most recently, the record reflects that the Veteran obtained a master's degree in education in June 2021 and had worked as a student teacher since July 2020. Prior to December 6, 2019, the Veteran's PTSD was characterized by anxiety, sleep impairment, avoidance behaviors, and depression. Mental status evaluations by VA clinicians and the September 2014 VA examiner had normal results. He did not endorse, nor did clinicians document, symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The record reflects that the Veteran was generally functioning satisfactorily and that his PTSD did not result in occupational and social impairment with reduced reliability and productivity during this period. Indeed, he successfully operated his own business, continued to have effective personal relationships with friends and family, and attended church during this period of time. He further denied experiencing any impairment in his work abilities due to his PTSD. Based on the foregoing, the Veteran's symptomology is best described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks prior to December 6, 2019. Since December 6, 2019, the Veteran's PTSD has been characterized by avoidance tendencies, feelings of detachment, sleep impairment, hypervigilance, depression, anxiety, suspiciousness, mild memory loss, as well as disturbance of motivation or mood. Mental status evaluations by VA clinicians and the December 2019 VA examiner had normal results. He has not endorsed, nor have clinicians documented, symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or difficulty in adapting to stressful circumstances (including work or a work-like setting). While the December 2019 examiner noted an inability to establish and maintain effective relationships, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Indeed, the Veteran reported a positive relationship with his wife and frequent interactions with his family members. He was also consistently employed throughout this period and obtained his master's degree in education. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. As the Veteran was able to maintain family relations and full-time employment, and take care of activities of daily living, a 70 percent rating is not warranted for this period. Based on the foregoing, the Veteran's symptomology is best described as occupational and social impairment with reduced reliability and productivity. As such, a rating in excess of 30 percent prior to December 6, 2019, or in excess of 50 percent, thereafter, is not warranted. 3. Entitlement to an initial rating in excess of 10 percent for the bilateral knee disability is denied. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). In the October 2014 rating decision, the Veteran was awarded service connection for both right and left knee disabilities. The RO assigned a noncompensable rating to each knee, effective November 1, 2013. A June 2020 rating decision awarded a 10 percent rating for each knee disability, effective November 1, 2013. The Veteran is currently assigned a 10 percent rating under DC 5260 for limitation of flexion for both knees. The knee may be rated under various diagnostic codes. The criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). 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 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5260 and 5261 remained the same. The diagnostic criteria applicable to recurrent subluxation or lateral instability, prior to February 7, 2020, is found at 38 C.F.R. § 4.71a, DC 5257 (2020). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The criteria for DC 5257 have been amended to address recurrent subluxation and patellar instability, effective February 7, 2020, as explained below. Under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, DC 5257 awards a 10 percent rating 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 warranted 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, cane, or walker. A 30 percent rating is warranted 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. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5258 and 5259 remained the same. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 and have been amended, effective February 7, 2020. Under that code, prior to February 7, 2020, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Since February 7, 2020, malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula continues to warrant a 40 percent evaluation with loose motion, requiring a brace. Medial tibial stress syndrome (MTSS) and shin splints are also rated under DC 5262, effective February 7, 2020. A noncompensable rating is warranted for treatment for less than 12 consecutive months for one or both lower extremities. A 10 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to either shoe orthotics or other conservative treatment for one or both lower extremities. A 20 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for both lower extremities. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, the diagnostic criteria related to ankylosis of the knee, DC 5256, and genu recurvatum, DC 5263, remained the same. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2020). As the Veteran has not had a knee replacement, or demonstrated ankylosis or genu recurvatum in either knee, these codes are inapplicable. In the VA Form 9 dated September 2016, the Veteran stated that his bilateral knee disability resulted in daily discomfort and limited his physical activities. In September 2014, the Veteran was afforded a VA examination for his knees. He reported experiencing pain in his knees after running or jumping, but denied swelling, popping, instability, locking, clicking, falls, or loss of range of motion. He described flare-ups following running or jumping, which resulted in slight swelling for one day. He was able to walk, swim, and bike with no limitations. Flexion of both knees was to 140 degrees or greater, with normal extension. There was no objective evidence of painful motion in either knee. The Veteran was able to complete repetitive use testing with no additional limitation of motion or functional ability. The examiner estimated that the Veteran would experience a loss of about 5 degrees of flexion bilaterally following repetitive movement over time and during a flare-up. The examiner noted tenderness in both knees, as well as normal muscle strength. Stability testing was normal, with no recurrent patellar subluxation or dislocation. The Veteran denied experiencing "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He had a history of a partial medial meniscectomy of the left knee in August 2012. There were no residual signs or symptoms related to the surgery upon examination. The Veteran did not use an assistive device for ambulation. In November 2019, the Veteran underwent another VA examination for his knee disability. He described constant mild pain in his right knee, as well as mild pain in his left knee. The pain worsened following driving and increased activity. The Veteran denied experiencing flare-ups, but reported pain when kneeling, crawling, and climbing. Flexion was to 125 degrees in the right knee, with normal extension. Flexion was to 130 degrees in the left knee, with normal extension. There was bilateral objective pain with both ranges of motion and non weight-bearing. There was no pain with weight-bearing and no evidence of crepitus. The examiner noted mild to moderate painful palpation of the right knee, as well as mild to moderate tenderness of the left knee. The Veteran was able to perform repetitive use testing, with at least three repetitions, with no additional loss of function or range of motion. Although the Veteran was not observed following repetitive use over time, the examiner estimated that flexion in both knees would be limited to 110 degrees, with no limitation of extension. Muscle strength was normal in the left knee, with active movement against some resistance in the left knee. There was no evidence of muscle atrophy or ankylosis in either knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was normal. The Veteran denied experiencing any "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He did not use an assistive device for ambulation. Most recently, in April 2021, the Veteran was afforded a third VA examination for his bilateral knee disability. He described constant bilateral knee pain. The pain worsened following driving, jumping, and squats. The Veteran reported doing yoga every other day, walking between two and three miles several days per week, and biking 10 miles once weekly. The Veteran denied experiencing flare-ups, instability, recurrent subluxation, or frequent effusion of the knees. Flexion was to 140 degrees in both knees, with normal extension. There was evidence of pain with flexion during both active and passive motion testing. There was no evidence of crepitus or pain on palpation in either knee. The Veteran was able to perform repetitive use testing, with at least three repetitions, with no additional loss of function or range of motion. There was no evidence of muscle atrophy or ankylosis in either knee. There was no recurrent subluxation, persistent instability, patellar instability, or ligament tear in either knee. The Veteran denied experiencing any "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted a history of a meniscal tear in the left knee, with no residual symptomatology. The Veteran did not use an assistive device for ambulation. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's bilateral knee under DC 5260. The medical evidence of record reflects that the Veteran demonstrated flexion to no worse than 125 degrees in the right knee and 130 degrees in the left knee in November 2019. To warrant the next higher rating of 20 percent, flexion would need to be limited to 30 degrees. As such limitation has not been demonstrated during the period on appeal, a higher rating under DC 5260 is not warranted for either knee. Regarding limitation of extension, the evidence of record does not reflect that the Veteran's extension was ever limited to 10 degrees during the appeal period in either knee. As such, a separate rating under DC 5261 is not warranted. Furthermore, there is no indication of any symptomatology that would warrant a separate rating for either knee under DC 5257. The record does not reflect any evidence of joint instability as to warrant a separate compensable rating. The Veteran denied any history of recurrent subluxation, lateral instability, or recurrent effusion at all of the VA examinations during the period on appeal. Furthermore, he has not reported any related falls. Indeed, stability testing was normal upon examination in September 2014 and November 2019. The April 2021 VA examiner found no evidence of patellar instability of either knee. The Board considers the examination findings to be the most probative evidence on the question of instability, as they reflect the outcome of evaluations by trained professionals. As these do not provide evidence of recurrent subluxation, lateral instability, or patellar instability, a separate rating under DC 5257 is not warranted. The Board notes that the Veteran has a history of a left meniscal tear, which was associated with pain and popping in November 2019. The April 2021 VA examiner indicated this condition was asymptomatic. A rating under DC 5258 or DC 5259 is not warranted as limitation of motion is already evaluated under another code, and effusion is not seen. As such, a separate rating under DC 5258 or 5259 would constitute impermissible pyramiding. The medical evidence is negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under DCs 5256 and 5263. The record is also silent for any complaints, treatments, or diagnoses of an impairment of the tibia or fibula. Thus, a separate rating under DC 5262 is not warranted for either knee. In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing and repetitive use testing over time as to warrant a rating in excess of 10 percent under DC 5260 for either knee. As such, the pertinent evidence of record has not revealed that flexion of either knee was further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating than the currently assigned 10 percent rating for limitation of flexion. Therefore, the Board finds that any rating higher than the current rating assigned is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Initially, the Veteran reported experiencing flare-ups during the September 2014 VA examination. He stated that they occurred after running or jumping, and resulted in slight swelling for one day. Since that time, he denied experiencing flare-ups at the November 2019 and April 2021 VA examinations. As such, additional testing to evaluate the impact of flare-ups and pain on limitation of motion was unwarranted on those occasions. The Board has considered the Veteran's statements regarding increased pain following certain physical activities. Based on the VA examination reports and lay statements, the evidence does not reflect symptomatology, including flexion to 30 degrees, due to flare-ups to the degree that would warrant a higher rating during the appeal period in either knee. In summary, the Board finds the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for limitation of flexion for the left and right knee disabilities. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.