Citation Nr: 21065621 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-12 677 DATE: October 26, 2021 ORDER A rating in excess of 20 percent for the service-connected degenerative arthritis of the right ankle is denied. A rating in excess of 20 percent for the service-connected left ankle, status post surgery, is denied. A rating in excess of 10 percent for the service-connected right knee degenerative arthritis based upon limitation of flexion is denied. A rating in excess of 10 percent for the service-connected left knee degenerative arthritis based upon limitation of flexion is denied. An initial compensable rating for the service-connected left knee degenerative arthritis based upon limitation of extension is denied. A separate initial compensable rating of 10 percent, but no higher, for the service-connected right knee degenerative arthritis based on instability is granted, subject to the laws and regulations governing the award of monetary benefits. A separate initial compensable rating of 10 percent, but no higher, for the service-connected left knee degenerative arthritis based on instability is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's service-connected right ankle disability is rated 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle; the evidence does not show he experiences any type of right ankle ankylosis, malunion of os calcis or astragalus, or underwent an astragalectomy. 2. The Veteran's service-connected left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle; and the evidence does not show he experiences any type of left ankle ankylosis, malunion of os calcis or astragalus, or underwent an astragalectomy. 3. At no time during the appeal period have the Veteran's service-connected right or left knee disabilities resulted in flexion functionally limited to 30 degrees or less or extension functionally limited to 10 degrees or more. 4. Affording the Veteran the benefit of the doubt, his service-connected right knee disability results in slight lateral instability; but has not resulted in ankylosis; dislocated meniscus causing locking; symptomatic post-semilunar cartilage removal; an impairment of the tibia and fibula; or genu recurvatum at any time during the appeal period. 5. Affording the Veteran the benefit of the doubt, his service-connected left knee disability results in slight lateral instability; but has not resulted in ankylosis; dislocated meniscus causing locking; symptomatic post-semilunar cartilage removal; an impairment of the tibia and fibula; or genu recurvatum at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the service-connected degenerative arthritis of the right ankle 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, Diagnostic Codes (DCs) 5270-5274. 2. The criteria for a rating in excess of 20 percent for the service-connected left ankle, status post surgery, 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, DCs 5270-5274. 3. The criteria for a rating in excess of 10 percent for the service-connected right knee degenerative arthritis based upon limitation of flexion 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, DCs 5003-5260. 4. The criteria for a rating in excess of 10 percent for the service-connected left knee degenerative arthritis based upon limitation of flexion 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, DCs 5003-5260. 5. The criteria for an initial compensable rating for the service-connected left knee degenerative arthritis based upon limitation of extension 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. 6. The criteria for a separate 10 percent disability rating, but no higher, for the Veteran's service-connected right knee disability based on slight instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DCs 5256, 5257, 5262, 5263, 5258, and 5259. 7. The criteria for a separate 10 percent disability rating, but no higher, for the Veteran's service-connected left knee disability based on slight instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DCs 5256, 5257, 5262, 5263, 5258, and 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1964 to May 1968 and from February 1976 to November 1992. In January 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board of Veterans' Appeals (Board) in March 2021. At that time, the Board remanded the Veteran's claims for further development, to include obtaining current VA examinations for the appealed conditions and to include obtaining the Veteran's pertinent private physical therapy records and other private medical records. The Veteran did not respond to VA's attempts to obtain these private records when the Regional Office (RO) sent him development letters in March and April 2021. In this regard, the Board notes that while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Thus, despite the records not having been obtained on remand, the Board finds that the RO substantially complied with the March 2021 Remand directives, and the Veteran's appeal is properly before the Board at this time. The Board also notes that, on remand, the RO, by way of a July 2021 rating decision, granted service connection for a scar on the Veteran's left foot associated with his service-connected left ankle disability. He did not appeal the rating assigned, and this issue is not part of the current appeal. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (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. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, 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, 204-7 (1995). 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). A rating in excess of 20 percent for the service-connected degenerative arthritis of the right ankle A rating in excess of 20 percent for the service-connected left ankle, status post surgery The Veteran contends that higher ratings should be assigned for his bilateral ankle disabilities. Throughout the course of the appeal period (April 21, 2015 to present), the Veteran's left and right ankle symptoms have been rated as 20 percent disabling each under DCs 5003-5271 (right ankle) and under DCs 5010-5271 (left ankle). Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Board notes that the schedular criteria for rating the ankle have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. As pertinent to the present appeals, DCs 5003, 5010, and 5271 were amended, as discussed further below. The other rating criteria applicable to the ankle 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. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, here, the amended diagnostic codes can only be applied in this matter from February 7, 2021. Prior to February 7, 2021, 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 joint 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, 2021, 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. The only change made to DC 5003 from February 7, 2021, is in the title of the DC, and does not include any substantive changes to the rating criteria. The November 2006 rating decision pursuant to which the Veteran's current right ankle rating was assigned clarified that the 20 percent evaluation was assigned for marked limited motion of the ankle. Also, the February 2018 rating decision, pursuant to which the Veteran's current left ankle rating was assigned, noted that the 20 percent evaluation was assigned for marked limited motion of the ankle. Limited motion of the ankle is rated under DC 5271. Prior to February 7, 2021, DC 5271 stated that marked limitation of motion of the ankle warrants a 20 percent rating and moderate limitation of motion of the ankle warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5271. From February 7, 2021, DC 5271 further clarifies that "marked" limitation of motion of the ankle is present when dorsiflexion is less than 5 degrees or plantar flexion is less than 10 degrees and warrants a 20 percent rating. Id. "Moderate" limitation of the ankle is present when dorsiflexion is less than 15 degrees or plantar flexion is less than 30 degrees and warrants a 10 percent rating. Id. [Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II.] Other diagnostic codes providing ratings for ankle disabilities include: DC 5270 for ankylosis of the ankle; DC 5272 for ankylosis of the subastragalar or tarsal joint; DC 5273 for malunion of os calcis or astragalus; and DC 5274 for astragalectomy. As detailed below, the Veteran's right and left ankles have not been shown to have these conditions during the period on appeal. Of note, DC 5270 for ankylosis of the ankle is the only DC which could potentially provide ratings higher than 20 percent for the Veteran's ankles based on limitation of motion, but it is not for application in this case. The Veteran was afforded a VA ankle conditions examination in September 2015 for the severity of his service-connected bilateral ankle disabilities. At that time, he reported experiencing increasing pain and stiffness in his ankles. He did not report experiencing flare-ups or having any functional loss or impairment of his ankles. On examination of both ankles, dorsiflexion was to 10 degrees and plantar flexion to 25 degrees. Although the ranges of motion were abnormal, the examiner found that they did not contribute to a functional loss. No pain was noted on examination in any ranges of motion in either ankle and there was no evidence of pain with weight bearing or of localized tenderness or pain on palpation of the joints or associated soft tissue. There was no objective evidence of crepitus in either ankle. The Veteran was able to perform repetitive-use testing of his ankles, with no change in either ankle's ranges of motion after repetitive-use testing. He was examined immediately after repetitive use over time of the bilateral ankles, and the examiner noted that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability with repeated use over a period of time. For both ankles, the examiner noted that additional contributing factors of disability were as follows: less movement than normal due to ankylosis, adhesions, etc.; deformity; disturbance of locomotion; and interference with standing. Muscle strength testing of both ankles was normal, and the Veteran did not have muscle atrophy or a reduction in muscle strength. Although the examiner had previously noted that "less movement than normal due to ankylosis, adhesions, etc." contributed to the Veteran's bilateral ankle disabilities, he clarified elsewhere in the examination report that neither ankle had any ankylosis. Further, neither instability nor dislocation was suspected in either ankle. The Veteran was also noted as not having or ever having had "shin splints"; stress fractures; achilles tendonitis; achilles tendon rupture; malunion of the os calcis or astragalus, or having had an astragalectomy related to either ankle. He was also noted as having severe rigid hindfoot valgus bilaterally related to his service-connected bilateral ankle disabilities. Although the Veteran was noted as constantly using a wheelchair as a normal mode of locomotion, the examiner did not specify the condition for which this was used. The examiner also concluded that neither the Veteran's right nor left ankle condition impacted his ability to work. The Veteran submitted a May 2016 progress note from his private provider, Dr. T.M. This physician noted that the Veteran's ankles continued to cause trouble and he wore custom shoes due to the residual swelling and deformities of his feet. The Veteran's ankles were constantly swollen. He assessed the Veteran with bilateral ankle subtalar degenerative joint disease, with the left ankle being stable due to a previous fusion and the right ankle being significantly painful with weightbearing activities. He instructed the Veteran to wear a cam walker boot on his right foot for the subtalar degenerative joint disease. The Veteran testified before the Board in January 2021 regarding the severity of his service-connected bilateral ankle disabilities. The Veteran's representative raised issue with many aspects of the September 2015 VA examination, in that the examiner noted that the Veteran was in a wheelchair, but that he was also examined after repetitive use over time. He also did not discuss why the Veteran required a wheelchair and did not discuss flare-ups. The Veteran's testimony appears to have confused his right and left ankle symptoms in that he spoke of his right ankle having undergone fusion surgery, but the medical evidence of record consistently states that the ankle fusion surgery was performed on his left ankle. He testified that he had difficulty walking because of his ankles and required the use of a walker for ambulation. He was unable to go up or down stairs because of his ankle disabilities. He reported that his right ankle had undergone a subtalar fusion previously, so it was pinned, but his left ankle would feel weak like it was going to give out on him at times. This had caused him to fall. His daughter testified that the Veteran had fallen in this shower because his ankles collapsed from underneath him four times, resulting in him being given a human shower aid to help him in the shower. The Veteran then testified that he did not have any braces or other devices to help with his ankles. He experienced constant pain in his ankles, even if he was sitting. The Veteran testified that his right ankle had no range of motion essentially because it had been pinned in the fusion surgery he underwent in service. His left ankle would be painful if he tried to use it. The Veteran's daughter also testified that the Veteran participated in weekly physical therapy with a private provider to help him with walking. The Veteran's representative also asserted at the hearing that DC 5271 was nonspecific as to which plane of movement, dorsiflexion or plantar flexion, it was to be applied. Thus, both could be established as separate compensable ratings under DC 5271. He noted that the United States Court of Appeals for Veterans Claims (Court) had addressed a similar situation involving a veteran's shoulders in the case Mariano v. Principi, 17 Vet. App. 305 (2003), and that the Board should allow 20 percent evaluations for each ankle for limitations in motion for both dorsiflexion and plantar flexion under DC 5271. The Veteran underwent another VA ankle conditions examination in June 2021 to assess the current severity of his service-connected bilateral ankle disabilities and to cure defects raised with the 2015 VA examination at the Board hearing. The examiner noted that the Veteran had diagnoses of bilateral ankle degenerative arthritis. He also was noted as having undergone left ankle surgery, specifically left subtalar fusion, in 1992, while in service. The Veteran reported increasing pain and stiffness in his ankles since he was last examined by VA. He continued to use a wheelchair daily for mobility and a walker around the house. His ankle pain was constant and throbbing, and his stiffness was a level five to six out of ten daily. He treated his bilateral ankle symptoms with Tylenol. The Veteran also reported experiencing flare-ups of his bilateral ankles such that the pain would increase with weather changes. This would occur three to four times per month and would last as long as the weather was bad or rainy. He described the increased pain as throbbing and rated it as a level seven to eight out of ten. The symptoms would be alleviated by Tylenol and rest. During flare-ups, his increased functional impairment left him unable to walk or stand. The Veteran reported having functional loss or impairment of his bilateral ankles such that he could not stand or walk for extended periods; needed a wheelchair for ambulation and a walker around the house; was unable to lift anything heavier than ten pounds; and needed to have something to hold for support to prevent his ankles from giving out and causing him to fall. He reported having a history of bilateral ankle instability in that they would feel like they wanted to give out on him. On examination, range of motion testing revealed bilateral ankle plantar flexion and dorsiflexion to 10 degrees. Pain was noted bilaterally on both plantar flexion and dorsiflexion. Passive range of motion testing was performed and revealed the same ranges of motion as active ranges of motion, with pain on both plantar flexion and dorsiflexion bilaterally. There was evidence of pain with weightbearing, active motion, and passive motion that caused functional loss. The examiner described the loss as the Veteran being unable to stand or walk without assistance for long periods; needing something for support and balance all the time to prevent falls; using a wheelchair most of the time to get around, especially for long distances; and using a walker around the house. There was bilateral objective evidence of crepitus and tenderness to palpation of the anterior and medial portions of the ankles at a level five out of ten. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion in either ankle. The Veteran was not examined immediately after repetitive use over time or during a flare-up, but procured evidence suggested that pain significantly limited functional ability with repeated use over time and during flares. Although they did not result in any further limitation of motion in either ankle, the Veteran reported that he would be unable to walk without assistance for long periods and would need something for support and balance at all times to prevent falling. He would use a wheelchair most of the time to get around, especially for long distances because he could not walk far, and he used a walker to get around his house. He was unable to walk or stand without something to provide support and balance. The examiner noted that the Veteran experienced the following additional factors contributing to his bilateral ankle disabilities: interference with standing (unable to stand for prolonged periods and without support and needing to use a walker at home); interference with sitting (unable to stand for prolonged periods and without support and needing to use a walker at home and a shower chair for showers); disturbance of locomotion (difficult walking and having to use a wheelchair most of the time for mobility); and deformity (bilateral severe heel valgus). His left ankle also had less movement than normal because hardware in place from his subtalar fusion caused him to have less movement of the joint. The Veteran did not have muscle atrophy of either ankle or ankylosis of either ankle or subastragalar or tarsal joint. Joint stability tests of both ankles were all normal. The examiner noted that the Veteran did not have or ever had had shin splints; stress fractures; achilles tendonitis; achilles tendon rupture; malunion of calcaneus (os calcis) or talus (astragalus); or had an astragalectomy on either side. He had never undergone surgery of the right ankle, but had undergone a left ankle subtalar fusion in 1992. The Veteran was also noted as constantly using a wheelchair and regularly using a walker for his bilateral foot arthritis. The examiner concluded that the Veteran's bilateral ankle disabilities did not have functional impairment (including balance and propulsion) such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran's medical records spanning the period on appeal have been reviewed. However, they did not contain evidence of more severe ankle symptoms than shown on contemporaneous VA examinations. The Veteran's ankle disabilities are rated 20 percent disabling each under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle, which provides for a maximum rating of 20 percent. There is no higher schedular disability rating available for limited motion of the ankle, in either versions of the DC both prior to, and from, February 7, 2021. As such, a rating above 20 percent for limited motion is not possible, as the Veteran is afforded the highest schedular rating under DC 5271 for both his left and right ankle disabilities. The Board has considered whether a higher rating could be warranted under any other diagnostic code pertaining to ankle disabilities, but no other diagnostic code is applicable for this Veteran. Those diagnostic codes include: DC 5270 for ankylosis of the ankle; DC 5272 for ankylosis of the subastragalar or tarsal joint; DC 5273 for malunion of os calcis or astragalus; and DC 5274 for astragalectomy. Although the Board has considered his assertions at the January 2021 hearing that his left ankle fusion surgery left him without motion in his left ankle, all VA examiners concluded that the Veteran did not have ankylosis of the left ankle. The Board also acknowledges that, at the January 2021 Board hearing, the Veteran, through his representative, requested separate ratings for impairment of dorsiflexion and for impairment of plantar flexion of the right and left ankle. Under the DC in effect at that time, he argued that DC 5271 was nonspecific as to which plane of movement, dorsiflexion or plantar flexion, it addressed. Thus, both could be established as separate compensable ratings under DC 5271. He also cited Mariano v. Principi, 17 Vet. App. 305 (2003), claiming that this case supported the assignment of separate ratings for both plantar flexion and dorsiflexion impairments. After considering the Veteran's contentions as well as the Mariano case, the Board concludes that there is no basis to assign separate ratings for both limited dorsiflexion and limited plantar flexion of the Veteran's service-connected ankle disabilities under the prior version of DC 5271. In that regard, the Board notes that the Mariano case held that, in assessing the severity of limitation of shoulder motion, it was necessary to consider both forward flexion and abduction, but that only a single disability rating may be assigned under DC 5201, as that code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. See Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Additionally, within a single diagnostic code, a claimant is not entitled to more than one rating for a given disability unless the diagnostic code expressly provides otherwise. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Thus, under the version of DC 5271 prior to February 7, 2021, the DC was addressed generically to limitation of motion of the ankle, and provided no basis for awarding separate ratings for both limited dorsiflexion and limited plantar flexion. The Board notes that the February 7, 2021, revised version of DC 5271, includes language specifying that "marked" limitation of motion of the ankle is present when dorsiflexion is less than 5 degrees or plantar flexion is less than 10 degrees; and "moderate" limitation of the ankle is present when dorsiflexion is less than 15 degrees or plantar flexion is less than 30 degrees and warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5271. Although the Board declines to hold that that this new language provides a basis for assigning multiple ratings for each ankle for both limited dorsiflexion and limited plantar flexion, the Board notes that the Veteran's most limited dorsiflexion and plantar flexion measurements shown bilaterally during the appeal period have both been to 10 degrees. These measurements would only warrant 10 percent ratings under the revised DC 5271 if separate ratings were allowed. Thus, even if the DC were to be applied in such a way, the result would be an assignment of two separate 10 percent ratings for each ankle, which results in a lower overall rating when combined than the single 20 percent ratings the Veteran is currently assigned for each ankle under DC 5271. 38 C.F.R. § 4.25. Such an interpretation of the application of DC 5271, as revised, would not maximize the benefit for the Veteran, and needs no further discussion. A rating in excess of 10 percent for the service-connected right knee degenerative arthritis based upon limitation of flexion A rating in excess of 10 percent for the service-connected left knee degenerative arthritis based upon limitation of flexion An initial compensable rating for the service-connected left knee degenerative arthritis based upon limitation of extension A separate compensable rating for the service-connected right knee degenerative arthritis based upon instability A separate compensable rating for the service-connected left knee degenerative arthritis based upon instability The Veteran contends that higher ratings are warranted for his service-connected bilateral knee disabilities. Throughout the course of the appeal period (April 21, 2015 to present), his left and right knee disabilities have each been assigned a 10 percent rating under DCs 5003-5260 for limitation of motion (flexion). Also, during the appeal period, a July 2021 rating decision granted service connection for his left knee degenerative arthritis limitation of extension, and assigned an initial noncompensable evaluation, effective June 24, 2021, the date of the VA examination where the RO found entitlement arose. He did not appeal the effective date assigned for the grant of service connection for his left knee limitation of extension. Also, prior to the July 2021 rating decision, his bilateral knee limitation of flexion ratings had been incorrectly noted as being assigned pursuant to DCs 5003-5257 for instability. However, the rating decisions pursuant to which these ratings were initially assigned clearly state that the ratings were for limited motion, not instability. Thus, any notation in the file of his having previously been assigned ratings under DC 5257 were in error, and he has never been compensated for instability of either knee. The RO corrected this in the July 2021 rating decision, as reflected in the contemporaneous rating codesheet, despite the fact that the RO did not make this correction clear in the rating decision. Rather, the RO stated in the July 2021 rating decision that his bilateral knee limitation of flexion ratings had previously been evaluated under DC 5003, rather than under DCs 5003-5257. As previously discussed, hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. 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. 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 these appeals, DCs 5003 and 5257 were amended, as discussed previously (regarding DC 5003) and further below (regarding DC 5257). The other rating criteria applicable to the knee have not been changed. See 85 Fed. Reg. 76,453 (November 30, 2020). As previously discussed, 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, 341 F.3d at 1329. Here, the amended diagnostic codes can only be applied in this matter from February 7, 2021. Prior to February 7, 2021, DC 5257 applied to knee recurrent subluxation or lateral instability and provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating 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 "slight," "moderate," and "severe" were 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 10 percent rating is provided for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is provider for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. 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. 38 C.F.R. § 4.71a, DC 5257. For patellar instability under DC 5257, a 10 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane or walker. A 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. 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 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 7, 2021, revisions. DC 5260 provides ratings based on limitation of flexion of the leg. 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. Limited motion of a knee disability can also be rated under DC 5261. DC 5261 provides ratings based on limitation of extension of the leg, and a noncompensable rating is assigned for extension limited to 5 degrees or less. 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. 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. Other diagnostic codes relating to the knees are DC 5256 for ankylosis; DC 5258 for dislocated meniscus with frequent locking, pain, and effusion; DC 5259 for symptomatic removal of semilunar cartilage; 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. The Veteran underwent a VA knee conditions examination in September 2015. At that time, the Veteran reported experiencing increasing pain and stiffness in his bilateral knees. He did not report experiencing flare-ups or having any functional loss or functional impairment of his bilateral knees. The examiner noted that the Veteran was diagnosed with bilateral knee degenerative arthritis. On examination, range of motion testing revealed bilateral knee flexion to 120 degrees and extension to zero degrees (normal). The abnormal flexion ranges of motion did not themselves contribute to functional loss, and no pain was noted on examination of either knee. There was also no evidence of pain with weight bearing or of crepitus in the Veteran's knees; nor was there objective evidence of localized tenderness or pain on palpation of either knee or associated soft tissue. The Veteran was able to perform repetitive-use testing with three repetitions, but no additional limitation of motion resulted in the either knee or lower leg. The examiner stated that the Veteran was examined immediately after repetitive use over time, but neither pain; weakness; fatigability; nor incoordination significantly limited functional ability with repeated use over time in either knee. The Veteran also had additional contributing factors to his bilateral knee disabilities in that he had less movement than normal due to ankylosis, adhesions, etc. Muscle strength testing of the Veteran's knees was normal bilaterally, and there was no reduction in muscle strength or evidence of muscle atrophy in either knee. Although the examiner had previously noted that "less movement than normal due to ankylosis, adhesions, etc." contributed to the Veteran's bilateral knee disabilities, he clarified elsewhere in the examination report that neither knee had any ankylosis. There was also no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was performed but revealed no joint instability in the Veteran's knees, as all tests were normal. The examiner also noted that the Veteran did not have or have a history of recurrent patellar dislocation; "shin splints;" stress fractures; chronic exertional compartment syndrome; or any tibial and/or fibular impairment in either knee. He also had never had a meniscus condition. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars. The Veteran was noted as constantly using a wheelchair as a normal mode of locomotion, but the examiner did not specify to which condition the wheelchair use was due. The examiner concluded that the Veteran's right and left knee disabilities did not impact his ability to perform any type of occupational task. The Veteran submitted an April 2016 medical treatment note from an unidentified provider to whom the Veteran reported for a second opinion regarding the possibility of bilateral knee replacements. The note stated that the Veteran had gone through a myriad of treatments for his bilateral knee arthritis and was confined to a wheelchair. None of the pain treatments were effective anymore and the Veteran's knee pain was severe, and he had noticed a steady decline in his activity level. He could barely walk short distances because his knees would give out. On examination that day, the Veteran had mild crepitations, but good varus and valgus stability and range of motion from zero to 110 degrees in the bilateral knees. Orthopedically, he was a candidate for knee replacements, but his VA physicians believed that he was too high a risk and thus refused to perform knee replacements. In a May 2016 progress note, his private provider, Dr. T.M., noted that he had bilateral knee degenerative joint disease that rendered him, for the most part, wheelchair-bound. His knees did not cause severe pain, but occasionally gave way. On examination, he was noted as having maintained good knee range of motion. At the January 2021 hearing, the Veteran testified as to the severity of his service-connected bilateral knee disabilities. His representative raised issue with many aspects of the September 2015 VA examination, in particular that the examiner noted that the Veteran was in a wheelchair, but that the Veteran was examined after repetitive use over time. The examiner also did not discuss why the Veteran required a wheelchair and did not discuss flare-ups. The Veteran testified that he had difficulty with walking because of his bilateral knee disabilities. They prevented him from being able to go up and down stairs. Both knees would also feel like they were going to give way and had caused him to fall. He testified that his falls in the showers were also due to his knees giving out. The Veteran stated that he had not been issued any kind of braces for his knees, but used a powered wheelchair to get around. He got the wheelchair from VA because of his knee and ankle problems which would cause him to fall. He was issued the wheelchair shortly after he separated from service, and it was issued based on his instability and inability to stand and walk without falling. He experienced constant pain in his knees, even if he was sitting. The pain would worsen if he tried to use his knees. The Veteran's daughter also testified that the Veteran participated in weekly physical therapy with a private provider to help him with walking. The Veteran's representative also asserted at the hearing that the Veteran should be assigned maximum evaluations for his bilateral knee instabilities due to his multiple falls and his having been issued a wheelchair due to his fall risk. He also asserted that the Veteran's need for a wheelchair and reports of an inability to take care of his hygiene needs without assistance amount to the Veteran having lost the ability to balance and propel. In such a situation, the Veteran should be evaluated consistent with loss of use of the bilateral lower extremities. The Veteran underwent another VA knee conditions examination in June 2021 to assess the current severity of his service-connected bilateral knee disabilities and to cure defects raised with the 2015 VA examination at the Board hearing. The examiner noted that the Veteran had diagnoses of degenerative arthritis of the right and left knees. The Veteran reported that he continued to have pain in both knees that had not changed since his last VA examination. He was also experiencing a constant throbbing pain of varying intensities and occasional swelling. He rated his daily knee pain as a five to six out of ten, and he treated the pain with Tylenol. The Veteran reported experiencing flare-ups of his bilateral knees in that the pain would worsen when the weather was bad. This would occur three to four times per month or with bad weather, and would last as long as the weather remained bad. During flare-ups, his knee pain would increase to a level seven to eight out of ten and would throb. Tylenol and rest would alleviate the pain. The Veteran reported being unable to walk or stand during flare-ups, and having to use his wheelchair and walker for mobility. The Veteran reported having functional loss or impairment of both knees in that he could not stand or walk for extended periods and needed a wheelchair for ambulation. He had to use a walker around the house and was unable to lift anything over 10 pounds. He also needed to hold something for support to prevent himself from falling. The Veteran also reported having a history of instability or recurrent subluxation of his knees in that they would buckle and give out at times. He always had to have something nearby to use for support to prevent him from ending up on the floor. He also needed a shower chair in the shower to hold onto while showering. The Veteran did not report having a history of frequent effusion of either knee. On examination, range of motion testing was as follows: right flexion to 80 degrees with normal extension; and left flexion to 90 degrees with extension to five degrees. Pain was exhibited on both flexion and extension of both knees. The examiner noted that the abnormal ranges of motion themselves did not contribute to a functional loss in either knee. Passive ranges of motion were also performed and were the same as active ranges of motion bilaterally. There was evidence of pain with weight-bearing and active motion which caused functional loss in that the Veteran was unable to stand or walk for extended periods, had to use a wheelchair for ambulation and a walker around the house, and could not lift anything heavier than ten pounds. There was objective evidence of crepitus and of localized tenderness on palpation of both knees, located in the medial areas at a severity of five out of ten. The Veteran was able to perform repetitive-use testing with at least three repetitions on both knees without any additional loss of function or range of motion. He was not examined immediately after repeated use over time, but procured evidence suggested that pain, fatigability, weakness, and lack of endurance caused additional functional loss after repeated use over time in both knees, such that right knee flexion would be further limited to 70 degrees and left knee flexion to 80 degrees. The Veteran was not examined during a flare-up, but procured evidence suggested that pain, fatigability, weakness, and lack of endurance also caused additional functional loss during flare-ups in both knees, such that right knee flexion would be further limited to 70 degrees and left knee flexion to 80 degrees. Additional factors contributing to disability in the Veteran's right and left knee included the following: interference with standing (difficulty with standing without balance and support and used a walker at home); disturbance of locomotion (unable to walk for extended periods and used a wheelchair for mobility); interference with sitting (used a walker for assistance and support for going from sitting to standing position); and chronic swelling of the knees. The Veteran did not have muscle atrophy in either knee or lower leg; nor did he have ankylosis of either knee or lower leg. The examiner noted that there was recurrent subluxation or persistent instability in both knees, but neither knee had ever had a ligament tear or sprain. The Veteran required a prescription of a walker for ambulation. Neither knee had recurrent patellar instability. The Veteran did not have or ever had a history of having recurrent patellar dislocation; shin splints; stress fractures; or any other tibial or fibular impairment in either knee or lower leg. He also had never had a right or left meniscus condition, and had never undergone surgery of either knee. The examiner noted that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to either knee; nor did he have any scars related to his knee disabilities. The Veteran constantly used a wheelchair and regularly used a walker to assist with ambulation, both due to his bilateral knee disabilities. The examiner also concluded that the Veteran did not have functional impairment (including of balance and propulsion) of either knee or lower leg such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. A VA addendum opinion was obtained in July 2021 by a different examiner than the one who performed the June 2021 VA examination. As an initial matter, the Board notes that this addendum should never have been requested as it appears to have been based upon a misinterpretation of information in the June 2021 examination report and only adds confusion to the relevant issues. The examiner was asked to clarify whether the Veteran had recurrent subluxation in his knees because the June 2021 VA examination report stated that the Veteran reported a history of "instability or recurrent subluxation" and that the examiner stated that, although all instability tests were normal, the Veteran had "recurrent subluxation or persistent instability," but the examiner noted in the remarks that the Veteran did not have recurrent subluxation. Upon reading the examination report in its entirety, it is clear that the June 2021 examiner was stating that the Veteran had persistent instability in his bilateral knees, per his reports of his knees giving out and causing him to fall, regardless of what instability tests showed on the day of the examination. Although the July 2021 examiner was asked to provide clarification only regarding the Veteran having recurrent subluxation in his knees, she rendered opinions on the Veteran's bilateral knee instability and stated that, because stability testing on both knees was normal, the Veteran's reports of his knees buckling and giving out was not supported by objective evidence, so she concluded that the June 2021 examiner erroneously indicated that the Veteran's bilateral knee disabilities were manifested by symptoms of persistent instability. This conclusion ignores the Veteran's competent lay statements, and the Board affords it no probative value in this matter, and it will not be discussed any further. No medical treatment records associated with the claims file indicated that the Veteran's right or left knee symptoms were more severe than those exhibited on VA examinations during the appeal period. In light of the above, the Board finds that neither the Veteran's right nor left knee limitation of flexion has met the criteria for a rating in excess of 10 percent at any time during the appeal period under DC 5260. Such ratings would require, at a minimum, flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, DC 5260. The Veteran has also not met the criteria for a compensable rating under DC 5261 for limitation of extension, which would require, at a minimum, extension limited to 10 degrees. See 38 C.F.R. § 4.71a, DC 5261. Neither of the Veteran's knee have 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 zero degrees (normal). The most restrictive range of motion measurements in the Veteran's left knee during the entire period were flexion to 80 degrees and extension to five degrees. The Board also notes that the Veteran's right and left knee limitations of flexion during the period on appeal have not even warranted noncompensable evaluations under DC 5260, which requires flexion limited to 60 degrees. However, under DC 5003, if limitation of motion of the knee is noncompensable under the appropriate diagnostic codes, as is the case here, a rating of 10 percent may be assigned, and it has. See 38 C.F.R. § 4.71a, DC 5003. Accordingly, there are no criteria which would allow ratings in excess of 10 percent for the Veteran's right and left knee limitation of flexion, or for separate compensable ratings to be assigned for right or left knee limitations of extension. 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 increased ratings 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 the Veteran's right or left 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 or left knee. The Board also finds that entitlement to separate compensable ratings for the Veteran's right and left knee instability has been raised by the record, and the Board finds that the evidence is at least in equipoise that such symptoms have been shown. Regarding the Veteran's right and left knee instability, the Veteran had reported his knees having given out in the past in his testimony before the Board, and in statements he made to VA examiners during the period on appeal. He was also consistently noted as using assistive devices to assist with ambulation due to his bilateral knee disabilities. Although no VA knee examinations during the appeal period showed any abnormality in instability testing, the Veteran is competent to report his right and left knee symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As an initial matter, the Board notes that the criteria under DC 5257 prior to the February 2021 revisions are more favorable to the Veteran and will be applied in this case. The criteria under DC 5257 prior to February 2021 require "slight" subluxation or instability for a minimum compensable 10 percent rating to be assigned. Words such as slight, 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. Here, the Board finds that evidence of at least slight bilateral knee instability is in equipoise, and affords the Veteran the benefit of the doubt. As such, a 10 percent rating under DC 5257 for slight instability is appropriate for each of the Veteran's knees. Although there have not been any clinical findings of subluxation, and instability was not shown upon clinical examination, it was consistently reported to have been an issue for the Veteran, and the Board has no reason to doubt the credibility of his statements regarding his knee giving out, causing him to fall. Because the Veteran also attributed his falls to his ankles giving out, it is not possible to determine from his statements alone whether his knees or ankles were the predominant factor in his falls. However, the evidence shows the Veteran at least experienced slight right and left knee instability sufficient to warrant separate 10 percent ratings under DC 5257. The Board has also considered whether separate compensable ratings are available for the Veteran's service-connected right and/or left knee disability under other diagnostic codes available for knee disabilities. However, neither the Veteran's right nor left knee condition has resulted in symptoms during the appeal period such as ankylosis; dislocated meniscus with frequent locking, pain, and effusion; symptomatic removal of semilunar cartilage; impairment of tibia and fibula; or genu recurvatum. See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, and 5263. In conclusion, the Board finds that the preponderance of the evidence is against the claims for ratings in excess of 10 percent for the service-connected right and left knee limitation of flexion and is also against the claim for an initial compensable rating for the service-connected left knee limitation of extension. 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 separate initial compensable 10 percent ratings are warranted under DC 5257 for slight instability of the Veteran's right and left knees, and such additional ratings are granted. The Board has also considered the argument raised by the Veteran, through his representative at the January 2021 Board hearing, regarding evaluating the Veteran consistent with loss of use of his lower extremities. However, as discussed above, the 2021 VA examiner concluded that the Veteran did not have functional impairment (including of balance and propulsion) of either knee or lower leg such (CONTINUED ON NEXT PAGE) that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Thus, loss of use ratings of the lower extremities are not appropriate in this case. 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.