Citation Nr: 21064283 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-08 441 DATE: October 19, 2021 ORDER An initial 10 percent rating, but not higher, for left knee bursitis, prior to December 5, 2019, is granted. An initial 10 percent rating, but not higher, for right knee bursitis, prior to December 5, 2019, is granted. An initial 50 percent rating, but not higher, for left knee bursitis, from December 5, 2019, is granted. An initial rating in excess of 40 percent for right knee bursitis, from December 5, 2019, is denied. FINDINGS OF FACT 1. Prior to December 5, 2019, the Veteran's left knee bursitis has been productive of painful motion with flexion limited to no less than 125 degrees, and extension to 0 degrees, without ankylosis, recurrent subluxation or instability, removed cartilage, impairment of tibia or fibula, or genu recurvatum; dislocated cartilage has been shown with frequent episodes of "locking," and pain, but not effusion. 2. Prior to December 5, 2019, the Veteran's right knee bursitis has been productive of painful motion with flexion limited to no less than 110 degrees, and extension to 0 degrees, without ankylosis, recurrent subluxation or instability, dislocated or removed cartilage, impairment of tibia or fibula, or genu recurvatum. 3. From December 5, 2019, the Veteran's left knee bursitis has been productive of painful motion with flexion limited to no less than 118 degrees, including on repetition, and extension to 42 degrees, but without ankylosis, recurrent subluxation or instability, removed cartilage, impairment of tibia or fibula, or genu recurvatum; dislocated cartilage has been shown with frequent episodes of "locking," and pain, but not effusion. 4. From December 5, 2019, the Veteran's right knee bursitis has been productive of painful motion with flexion limited to no less than 124 degrees, including on repetition, and extension to 32 degrees, but without ankylosis, recurrent subluxation or instability, dislocated or removed cartilage, impairment of tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but not higher, for left knee bursitis, prior to December 5, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5019-5261. 2. The criteria for an initial 10 percent rating, but not higher, for right knee bursitis, prior to December 5, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5019-5261. 3. The criteria for an initial 50 rating, but not higher, for left knee bursitis, from December 5, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5019-5261. 4. The criteria for an initial rating in excess of 40 percent for right knee bursitis, from December 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5019-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to July 2011. He was awarded the Combat Action Ribbon. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran's claims file. These matters were remanded by the Board in August 2019 for further development, which has since been completed. In a May 2020 rating decision, the RO granted an increase to 40 percent for left and right knee bursitis, effective December 5, 2019. As this rating did not constitute a full grant of the benefits sought, the claims remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). After the issuance of the May 2020 supplemental statement of the case (SSOC), the Veteran submitted additional relevant evidence. Section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013. The Veteran's VA Form 9 was received in March 2015. Accordingly, the Board may review this evidence in the first instance. See 38 U.S.C. § 20.1305. In addition, VA added evidence to the file following the May 2020 SSOC. However, as this evidence is either not relevant and/or essentially duplicative of evidence that had been previously submitted considered by the RO, a waiver is not necessary. Id. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is considered limited motion at the point that the pain actually sets in. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial compensable rating for left knee bursitis, prior to December 5, 2019, and in excess of 40 percent, thereafter. 2. Entitlement to an initial compensable rating for right knee bursitis, prior to December 5, 2019, and in excess of 40 percent, thereafter. Service connection for left and right knee bursitis was granted in the October 2013 rating decision on appeal, and an initial noncompensable, or 0 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5019-5257, effective July 21, 2011, the day after he was discharged from active service. See also 38 C.F.R. § 3.400. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, DC 5019 is for bursitis, which is rated on limitation of motion of the affected parts, as arthritis, degenerative, except gout. See 38 C.F.R. § 4.71a. Typically, DC 5257 is for joint instability or subluxation; however, the RO explained in the October 2013 rating decision that this diagnostic code was assigned because other DCs for the knee and leg were not applicable or had specific criteria for assigning a noncompensable evaluation that he did not meet. As noted above, the RO awarded a higher 40 percent rating for left and right knee bursitis in a May 2020 rating decision, effective December 5, 2019. In addition, the RO changed the diagnostic code from DC 5019-5257 to DC 5019-5261. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the DC was changed based on limitation of extension of the bilateral knee, as explained in the May 2020 rating decision. After review, the Board will not disturb the currently assigned diagnostic codes beginning December 5, 2019, since, as in this instance, when a rating for a particular disability has been in effect for less than 20 years, it is permissible to switch diagnostic codes to reflect that nature of the disability more accurately. Murray v. Shinseki, 24 Vet. App. 420, 425 (2011). Furthermore, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question, unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Board will review the Veteran's appeal under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. 38 C.F.R. § 4.71a. This diagnostic code was not revised in the new rating schedule. Diagnostic Code 5261 provides that a noncompensable 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 50 degrees. 38 C.F.R. § 4.71a. This code was also not revised in the new rating schedule. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. These codes were not affected by the new revisions. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if it is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257. The amended criteria expanded and defined this DC further; however, after review of the evidence of record, this DC does not apply to the Veteran's knee disability picture and thus, does not warrant detailing the revisions, as a result. The Veteran seeks an initial compensable rating prior to December 5, 2019. In addition, he contends that his condition warranted a higher 40 percent rating earlier than the assigned December 5, 2019 effective date. See February 2011 VA Form 20-0995. After review of the evidence, the Board finds that an initial 10 percent rating, but not higher, for left and right knee bursitis, prior to December 5, 2019 is warranted. From December 5, 2019, the Board finds that a higher initial 50 percent rating for left knee bursitis, is warranted; however, an initial rating in excess of 40 percent for right knee bursitis is not warranted for the reasons stated below. Post-service VA treatment records showed that the Veteran was seen in June 2012, in part, for bilateral knee pain. He reported his bilateral knee pain was at a 5 out of 10 and was aggravated with activity, lasting for about 15 minutes each time. A May 2013 VA treatment record showed the Veteran was seen for chronic pain in multiple joints. On examination, his gait was steady with full range of motion in his knees. In July 2013, the Veteran was afforded a general VA examination. He was diagnosed with mild bursitis of both knees. The Veteran reported pain in both knees that averaged at 5 to 6 out of 10, with at worst, 8 to 9 out of 10. Range of motion findings showed 0 to 140 degrees in both knees, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no decrease in range of motion due to pain, weakness, fatigue, or lack of endurance. There were no additional limitations in range of motion in either knee after repetitive-use testing. The Veteran exhibited pain in both knees on palpation. His joint stability tests were normal, and there was no evidence of subluxation, shin splints, or of a meniscal condition. A May 2014 VA treatment record indicated the Veteran moved and was now establishing care at his current local VA Medical Center. He reported pain in his left knee and that they both locked in the flexed position when sitting, with popping and griding noises. His gait was normal. No range of motion findings were provided, but he was prescribed medicine for pain. In January 2015, the Veteran established care with K.P., PA-C. He complained of bilateral knee pain and had locking and clicking in his knees. His gait was normal with normal strength. K.P. found he had full range of motion in his knees. A July 2015 private physical therapy treatment record showed he was seen for an initial evaluation of pain in his knees and back. He reported that his knees locked and buckled. His knee pain was increased after standing and walking more than 15 minutes, sitting for 15 minutes, cold temperatures, using the stairs, squatting, and lifting more than 10 pounds. On examination, flexion was to 125 degrees in his left knee and his right knee was to 110 degrees. The clinician's impression was that his signs and symptoms were consistent with bilateral knee pain. At the September 2015 visit with K.P., PA-C, the Veteran continued complaints of intermittent sharp pain with catching or clicking in his knees. He denied weakness. K.P. noted he was prescribed braces for both knees. Range of motion was noted as full for both knees with tenderness. A McMurray test was positive for medial instability; there also was laxity on valgus stress test. K.P.'s note reflects there was a question of laxity. He was referred to Dr. M.T.D., an orthopedist, for further evaluation. The Veteran had an evaluation for his bilateral knees with Dr. M.T.D. in October 2015. He reported constant pain in his knees that was a little worse on the left than right. Recent physical therapy did not seem to help his knee pain very much. Physical examination indicated he had a straight alignment to both knees without effusion or instability. The October 2015 x-ray private imaging report did not reveal any fracture, osteoarthritis, joint effusion, or loose body in either knee. A magnetic resonance imaging (MRI) report performed on the same date showed that he had chondromalacia of both knees and left knee medial meniscus tear. In December 2015, he saw K.P., PA-C, for a follow-up visit for bilateral knee pain. He reported his pain was stable in his knees and that popping continued on flexion and extension. He denied catching. K.P. did not take measurements at this visit. At an April 2016 visit with K.P., PA-C, the Veteran reported physical therapy was not helping and pain remained present in his legs and joints. K.P. noted his gait was normal without mobility limitations and did not take measurements at that visit, either. In December 2016, the Veteran underwent another VA examination. He reported constant pain in the infrapatellar area in both knees that was a 4 out of 10 at rest and progressed to 6 out of 10, bilaterally. Range of motion findings showed flexion to 140 degrees and extension to 0 degrees in both knees. No pain was noted on exam and there was no evidence of pain on weightbearing testing. The examiner noted moderate tenderness on the left and right patellar tendon on palpation. The Veteran was able to perform repetitive use testing with no additional range of motion loss in either knee. No ankylosis, effusion, subluxation, lateral instability, or joint instability was found in either knee. The Veteran did not use an assistive device. The examiner noted that he had full active or passive range of motion and the most recent x-ray imaging report reviewed was normal. A February 2018 VA treatment record showed continued complaints of bilateral knee pain. A July 2018 VA treatment record showed that he was seen for 'chronic medical conditions,' but did not disclose knee pain. The clinician provided an assessment and plan for the other conditions found on exam and did not address a knee condition. At the hearing before the undersigned, the Veteran testified that he could stand in one spot for more than 10 minutes or else they locked up. They would lock up and make cracking noises, in general, and he had constant pain. See Hearing Transcript, page 6. His daily pain was at a 6 out of 10. See Hearing Transcript, page 7. He asserted worsening of his knees and that the 2016 VA examination was not satisfactory; he would be willing to attend another exam. See Hearing Transcript, page 4. The record was held open for 60 days for the Veteran and his representative to submit private treatment records or provide any additional argument or evidence, but no response was received during that period. Pursuant to the Board's remand, the Veteran had a VA examination in December 2019. He reported gradual worsening of his knees. He did not tolerate excessive, repetitive, or prolonged activity of his bilateral knees. Testing of his left knee joint revealed active left knee flexion to 130 degrees and extension to 39 degrees with pain. Passive range of motion was from 39 degrees to 135 degrees. Weightbearing testing showed range of motion from 42 degrees to 124 degrees; and non-weightbearing was from 39 degrees to 130 degrees. Testing of his right knee joint revealed active left knee flexion to 126 degrees and extension to 21 degrees with pain. Passive range of motion was from 21 degrees to 129 degrees. Weightbearing testing showed range of motion from 32 degrees to 124 degrees; and non-weightbearing was from 21 degrees to 126 degrees. The Veteran exhibited pain on both passive and active motion of both knees and on weightbearing and non-weightbearing testing. The examiner noted minimal to moderate tenderness on palpation to both knees. Repetitive use testing showed range of motion findings of flexion to 133 degrees and extension to 32 degrees in his right knee, and flexion to 118 degrees and extension to 40 degrees in his left knee. The examiner found that pain caused additional functional impairment during flare-ups. No ankylosis, effusion, subluxation, lateral instability, or joint instability was found in either knee. The Veteran did not use an assistive device. X-ray imaging reports showed normal radiographs of both knees. The examiner found the current severity of his left knee was moderate to severe and moderate in his right knee. The examiner also found that weakness, fatigability, and incoordination did not appear to cause additional functional impairment after repeated use over time with left or right knee flexion, or during flare-ups. In September 2021, the Veteran submitted a letter by K.P., PA-C, stating that after review of records from 2015 through 2017 and the consult with the orthopedic surgeon, as well as the December 2019 VA examination, K.P. opined that the findings from the 2019 VA examination and descriptions of the Veteran's symptoms were consistent with records from 2015 through 2017. See February 2011 medical treatment record. As initial matter, during the period on appeal, the Veteran stated that there was supporting medical evidence via VA treatment records that would support a higher rating for his service-connected left and right knee bursitis. See June 2014 notice of disagreement; March 2015 VA Form 9. The VA Forms 21-4142 of record only ever indicated treatment for his bilateral knees occurred at VA Medical Centers. See March 2015 VA Forms 21-4142; see also March 2012 VA Form 21-526. Although he testified to receiving private treatment at his 2018 hearing, the Veteran and his representative did not respond within the 60 days provided by the undersigned. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). As the Veteran did not provide these records or authorize VA to obtain them, VA's duty to assist him in development as to this matter is met. Nonetheless, the private treatment records associated with the claims file were provided by the Veteran and do cover the years 2015 through 2017; thus, the Board finds there is sufficient information to decide the claim on the evidence of record. Prior to December 5, 2019 Prior to December 5, 2019, the Veteran's bilateral flexion has exceeded 45 degrees and extension was at 0 degrees prior to December 5, 2019. Under the rating criteria, his knees have not been more nearly approximate to a compensable level under DCs 5260 or 5261 in either knee. However, since the grant of service connection, functional loss is present in both knees and manifests as pain on movement, locking, grinding, and lack of endurance. The Veteran competently and credibly reported bilateral knee pain with standing and walking more than 15 minutes, sitting for 15 minutes, cold temperatures, using the stairs, squatting, and lifting more than 10 pounds, and during pain flares. Private treatment records, the December 2016 VA examination report, and his hearing testimony consistently reflect that he continuously reported daily pain at 4-6 out of 10 and at 8-9 out of 10 when it was severe. The Court has found "the terms 'painful motion' and 'actually painful joints' to be synonymous." Petitti v. McDonald, 27 Vet. App. 415, 425 (2015). Compensation for pain is limited to a single 10 percent disability rating per joint when there is no actual or compensable limitation of motion. Mitchell, 25 Vet. App. at 39. Here, the Veteran has no compensable limitation of motion, but the evidence shows functional loss due to painful motion that is otherwise not compensable under the rating criteria. Thus, the Board finds that the Veteran is entitled to the minimum compensable rating of 10 percent for limitation of motion due to pain for each knee throughout the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.59. Because the Veteran's bilateral knee motion limitation does not approximate 30 degrees of flexion or 15 degrees of extension, the Board finds that the functional loss does not meet the requirements for a 20 percent disability rating prior to December 5, 2019. Mitchell, DeLuca, and §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). In making this determination, the Board has considered the September 2021 letter submitted by K.P., PA-C, and the Veteran's statements regarding the severity of his left and right knee bursitis prior to December 5, 2019. However, prior to December 5, 2019, the competent and probative evidence showed that at worst, left knee flexion was to 125 degrees and right knee flexion was to 110 degrees as shown by the July 2015 private physical therapy record. Otherwise, the range of motion findings were within the normal range of 0 to 140 degrees (or full range of motion), as defined by 38 C.F.R. § 4.71a, Plate II and shown at the May 2013, July 2013, January 2015 visits with K.P., PA-C. Even if discounting the December 2016 VA examination report, which showed normal range of motion in both knees, his July 2018 VA medical visit prioritized chronic medical conditions other than his left and right knee bursitis. Were the severity truly at the level shown at the December 2019 VA examination, surely the July 2018 VA treatment record would have reflected some discussion about his bilateral knee disability. However, as this record had not, the Board finds the Veteran is not as consistent in his reporting and therefore, finds the objective medical findings, as reported prior to December 5, 2019, more probative. As held in Thompson, functional limitations due to pain does not superseded the requirements for a higher rating specified in 38 C.F.R. § 4.71a, and here, the objective evidence has not indicated an even higher rating is warranted. Therefore, prior to December 5, 2019, the Board grants an initial 10 percent rating for each knee for painful motion. Because the Board assigned an initial rating, prior to December 5, 2019, based on limitation of motion, the rating previously assigned under 38 C.F.R. § 4.71a, DC 5019-5257, is discontinued. Butts, 5 Vet. App. at 538; Murray, 24 Vet. App. at 425. From December 5, 2019 Based on the evidence of record, the Board finds that a higher initial 50 percent rating is warranted for left knee bursitis, as at worst, left knee extension was to 42 degrees when accounting for functional loss, as found at the December 2019 VA examination. The Board resolves doubt and finds that this measurement more nearly approximates the 45 degrees limitation provided by the 50 percent rating criteria. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Thus, the criteria for the 50 percent rating have been met for left knee bursitis, as of December 5, 2019. This is the maximum schedular rating under DC 5019-5261. There are no arguments concerning a higher rating for the left knee, to include any symptoms not contemplated. No further discussion is needed for this rating. From December 5, 2019, a higher rating under DC 5019-5261 is not warranted for right knee bursitis, as the evidence does not reflect that his limitation of extension more nearly approximates a 50 percent rating. The December 2019 examiner found that, at worst, his limitation of extension of right knee was to 32 degrees, which more nearly approximates the 30 degrees provided by the currently assigned 40 percent rating. Therefore, a rating in excess of 40 percent for right knee bursitis, from December 5, 2019, is not warranted. During the period on appeal, the Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, after review, a higher or separate rating is not available under Diagnostic Codes 5256, 5259, 5262, 5263 as the evidence of record indicates the Veteran does not have ankylosis of either knee, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Dislocated semilunar cartilage with frequent episodes of locking pain and effusion, as considered under DC 5258, does not apply to his right knee, as the Veteran has not been diagnosed with a right knee meniscus condition at any time during the appeal period. The Board recognizes the Veteran has been diagnosed with left knee meniscal tear. However, at worst, the evidence of record, even when considering the Veteran's lay statements, only reflect frequent episodes of "locking," and pain; effusion into the joint has not been shown at any time during the period on appeal. As such, a separate rating under DC 5258 does not apply to left knee bursitis at any time during the appeal period, since all three elements have not been met. Finally, the Board has also considered a separate rating under DC 5257, since the September 2015 private treatment record indicated a question of laxity and the Veteran was given knee braces. In English v. Wilkie, the Court held that Diagnostic Code 5257 does not require or categorically favor objective medical evidence for the purposes of evaluating knee instability. 30 Vet. App. 347, 352-53 (2018). As such, a claimant's rating for knee instability may be based primarily upon lay reports. That being said, there is scant lay evidence regarding instability; the limited lay evidence consisting of only the instances in July and September 2015 during the otherwise lengthy appeal period. Moreover, while the Board does not categorically reject that limited lay evidence, it is significant that the September 2015 finding showed a 'question' of laxity, and appears to be the only instance of clinical evidence of instability. The preponderance of the evidence showed otherwise normal objective joint stability testing throughout the period on appeal. See VA and private treatment records as well as the July 2013, December 2016, and December 2019 VA examination reports. For these reasons, a separate instability rating is not warranted. (Continued on the next page) In sum, an initial 10 percent rating, but no higher, for left and right knee bursitis, prior to December 5, 2019 is warranted. Beginning December 5, 2019, an initial 50 percent rating, but no higher, for left knee bursitis is warranted, but an initial rating in excess of 40 percent for right knee bursitis is not warranted. 38 C.F.R. § 1155; 38 C.F.R. § 4.3. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.