Citation Nr: 21066596 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-27 375 DATE: November 1, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent, prior to February 22, 2021, for degenerative joint disease of the thoracolumbar spine is denied. Entitlement to a disability rating of 20 percent, but not greater, as of February 22, 2021, for degenerative joint disease of the thoracolumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the cervical spine is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee strain is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee strain is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee instability is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is denied. FINDINGS OF FACT 1. At worst, prior to the Board hearing, the Veteran's thoracolumbar spine disability is manifested by normal flexion range of motion, with pain on motion. 2. At worst, since the Board February 22, 2021, hearing, the Veteran's thoracolumbar spine disability is manifested by flexion limited to 45 degrees. 3. At worst, throughout the period on appeal, the Veteran's cervical spine disability is manifested by flexion limited to 35 degrees. 4. At worst, throughout the period on appeal, the Veteran's left knee disability is manifested by flexion limited to 115 degrees. 5. At worst, throughout the period on appeal, the Veteran's right knee disability is manifested by flexion limited to 115 degrees. 6. At worst, throughout the period on appeal, the Veteran's left knee instability is manifested by a slight impairment. 7. At worst, throughout the period on appeal, the Veteran's right knee instability is manifested by a slight impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent, prior to February 22, 2021, for degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating of 20 percent, but not greater, as of February 22, 2021, for degenerative joint disease of the thoracolumbar spine, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5242. 4. The criteria for an initial disability rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5260. 5. The criteria for an initial disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5260. 6. The criteria for an initial disability rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257. 7. The criteria for an initial disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to October 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013, April 2013, May 2015, and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. In June 2021, the Board remanded these appeals for further development. The Board also notes that, in August 2021, the RO granted a 20 percent rating for the Veteran's lumbar spine disability effective from July 16, 2021, and an initial 10 percent rating for the Veteran's cervical spine disability. Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). 1. Entitlement to an initial increase rating in excess of 10 percent, prior to July 16, 2021, for degenerative joint disease of the thoracolumbar spine, and in excess of 20 percent thereafter The Veteran and his representative claim that he is entitled to a higher rating for his service-connected thoracolumbar spine disability. The disability was rated at 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. During the course of the appeal, the Veteran has been afforded three VA examinations in July 2012, May 2015, and July 2021. The July 2012 VA examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. The Veteran reported that his disability originated gradually in January 2012 but has improved. The Veteran did not report flare-ups during the VA examination. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion was normal at 90 degrees, the extension was considered normal at 30 degrees, the right lateral flexion is limited to 25 degrees (normal at 30), the left lateral flexion is limited to 25 degrees (normal at 30), right rotation is limited to 25 degrees (normal at 30), and left rotation is limited to 25 degrees (normal is 30). There is no additional limitation to range of motion after observed repetitive use. The examiner determined that the Veteran's limitation of motion causes functional impairment. Testing revealed no localized tenderness or pain to palpation for the joint, no guarding, no muscle spasms, normal muscle strength, normal reflex, and normal sensory examinations. Testing revealed negative results for straight leg raising. No radiculopathy, ankylosis or intervertebral disc syndrome were noted. There was no noted use of an assistive device. The May 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The Veteran reported that his low back and neck pain continue to cause pain prompting more frequent visits to a chiropractor. The Veteran also reported that his flare-ups occur with posture changes and activity changes, and that his daily pain is usually at a 3 or 4 out of 10, but during flare-ups, it increases to 8 or 9 out of 10. Additionally, the Veteran also explained that he is unable to jog or lift weights due to his back pain. The Veteran's range of motion is normal, with no noted pain on examination. There is no additional limitation to range of motion after observed repetitive use. Testing revealed no guarding, muscle spasms, normal muscle strength, reflex, and sensory examination. No ankylosis or intervertebral disc syndrome was noted. There was noted use of shoe inserts as an assistive device. During the February 22, 2021, Board hearing, the Veteran reported experiencing worsening symptoms due to his lumbar spine disability, which resulted in the Board's June 2021 remand for a new examination. The July 2021 VA examiner diagnosed the Veteran with degenerative disc disease of the thoracolumbar spine. The Veteran reported that his disability developed over time, and began with achy pains, and currently manifests with tightness, increased aching pain, reduced mobility and feels like back will go out. The Veteran also reported that he experienced flare-ups daily and can be severe, are precipitated by sitting or standing for long periods of time, and are alleviated by laying down, tens unit, and lidocaine patches. The Veteran also noted experiencing functional impact due to range of motion issues. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion is limited to 60 degrees (normal is 90), the extension is limited to 25 degrees (normal at 30), the right lateral flexion is limited to 25 degrees (normal at 30), the left lateral flexion is limited to 25 degrees (normal at 30), right rotation is limited to 25 degrees (normal at 30), and left rotation is limited to 25 degrees (normal is 30), with pain on motion noted. Testing revealed that his passive range of motion was the same as his active range of motion. There was no additional limitation to range of motion after observed repetitive use. The examiner noted that the Veteran had additional limitation to range of motion after repeated use over time due to pain, specifically, his flexion is limited to 50 degrees (normal is 90), the extension is limited to 20 degrees (normal at 30), the right lateral flexion is limited to 20 degrees (normal at 30), the left lateral flexion is limited to 20 degrees (normal at 30), right rotation is limited to 20 degrees (normal at 30), and left rotation is limited to 20 degrees (normal is 30). The examiner also noted that the Veteran had additional limitation to range of motion after flare-ups due to pain, specifically, his flexion is limited to 45 degrees (normal is 90), the extension is limited to 15 degrees (normal at 30), the right lateral flexion is limited to 15 degrees (normal at 30), the left lateral flexion is limited to 15 degrees (normal at 30), right rotation is limited to 15 degrees (normal at 30), and left rotation is limited to 15 degrees (normal is 30). Testing revealed normal muscle strength, reflex, and sensory examination. Testing revealed negative results for straight leg raising. No ankylosis or intervertebral disc syndrome was noted. The Veteran did not report using any assistive devices. The examiner opined that the thoracolumbar spine disability results in a functional impact, which may interfere with bending, walking, standing, climbing, running, sitting, lifting due to pain. The Board finds that, prior to February 22, 2021, the Veteran does not qualify for an evaluation in excess of 10 percent for his lumbar spine limitation of flexion, because flexion has not been limited to more than 60 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. In fact, the Veteran's current rating for limitation of flexion is based on 38 C.F.R. § 4.59, as his range of flexion is not considered compensable under the applicable Diagnostic Code, although the pain he experiences causes sufficient impairment to support his current 10 percent disability rating. However, the Board finds that, as of February 22, 2021, the medical evidence of record reflects findings that are consistent with a 20 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period was his flexion, which was at 45 degrees with pain during flare-ups. However, that measurement squarely places the Veteran's limited movement within the 20 percent criteria for rating the back, including consideration of the Veteran's pain on functional use. Accordingly, the Board concludes that the evidence supports a finding that, since the February 22, 2021, Board hearing, the Veteran's lumbar spine disability merits a 20 percent disability rating, as that is when the Veteran reported his worsening disability symptoms. However, the medical evidence of record does not support a disability rating in excess of 20 percent, for the same period of time as the Veteran's flexion has not been limited to more than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the cervical spine The Veteran and his representative claim that he is entitled to a higher rating for his service-connected cervical spine disability. The disability was rated at 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. During the course of the appeal, the Veteran has been afforded three VA examinations in July 2012, May 2015, and July 2021. The July 2012 VA examiner diagnosed the Veteran with degenerative joint disease of the cervical spine. The Veteran reported that his disability originated in 2012 after push-ups and other activities that involve the neck strain, but has improved. The Veteran reported experiencing flare-ups of pain and stiffness during the VA examination. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion is limited to 40 degrees (normal is 45), the extension is limited to 35 degrees (normal at 45), the right lateral flexion is limited to 35 degrees (normal at 45), the left lateral flexion is limited to 35 degrees (normal at 45), right rotation is limited to 70 degrees (normal at 80), and left rotation is limited to 70 degrees (normal is 80), with pain on motion noted. There is no additional limitation to range of motion after observed repetitive use. The examiner determined that the Veteran's pain on motion causes functional impairment. Testing revealed no localized tenderness or pain to palpation for the joint, no guarding, no muscle spasms, normal muscle strength, normal reflex, and normal sensory examinations. No radiculopathy, ankylosis or intervertebral disc syndrome were noted. There was no noted use of an assistive device. The examiner concluded that the Veteran's cervical spine disability did not impact his employment. The May 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the cervical spine and intervertebral disc syndrome. The Veteran reported that his low back and neck pain continue to cause pain prompting more frequent visits to a chiropractor. The Veteran also reported that his flare-ups occur with posture changes and activity changes, and that his daily pain is usually at a 3 or 4 out of 10, but that during flare-ups, it increases to 8 or 9 out of 10. The Veteran's range of motion is considered normal, with no noted pain on examination. There is no additional limitation to range of motion after observed repetitive use. Testing revealed no guarding, muscle spasms, normal muscle strength, reflex, and sensory examination. No ankylosis or intervertebral disc syndrome was noted. There was no noted use of an assistive device. During the February 2021 Board hearing, the Veteran reported experiencing worsening symptoms due to his cervical spine disability, which resulted in the Board's June 2021 remand for a new examination. The July 2021 VA examiner diagnosed the Veteran with cervical strain, degenerative arthritis, and cervicalgia. The Veteran reported that his disability developed over time, began with achy pains, and currently manifests with tightness, and sometimes extends to his shoulder. The Veteran also reported experiencing flare-ups that occur every other day, can be moderate, are precipitated potentially by a lack of movement for long periods of time, and are alleviated by tens unit and chiropractic adjustments. The Veteran also noted experiencing functional impact due to decreased range of motion. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion is limited to 40 degrees (normal is 45), the extension is limited to 40 degrees (normal at 45), the right lateral flexion is limited to 40 degrees (normal at 45), the left lateral flexion is limited to 40 degrees (normal at 45), right rotation is limited to 70 degrees (normal at 80), and left rotation is limited to 70 degrees (normal is 80), with pain on motion noted. Testing revealed that his passive range of motion was the same as his active range of motion. There was no additional limitation to range of motion after observed repetitive use. The examiner noted that the Veteran had additional limitation to range of motion after repeated use over time due to pain, specifically, his flexion is limited to 40 degrees (normal is 45), the extension is limited to 40 degrees (normal at 45), the right lateral flexion is limited to 40 degrees (normal at 45), the left lateral flexion is limited to 40 degrees (normal at 45), right rotation is limited to 65 degrees (normal at 80), and left rotation is limited to 65 degrees (normal is 80). The examiner also noted that the Veteran had additional limitation to range of motion after flare-ups due to pain, specifically, his flexion is limited to 35 degrees (normal is 45), the extension is limited to 35 degrees (normal at 45), the right lateral flexion is limited to 35 degrees (normal at 45), the left lateral flexion is limited to 35 degrees (normal at 45), right rotation is limited to 60 degrees (normal at 80), and left rotation is limited to 60 degrees (normal is 80). Testing revealed normal muscle strength, reflex, and sensory examination. No ankylosis or intervertebral disc syndrome was noted. The Veteran did not report using any assistive devices. The examiner opined that the thoracolumbar spine disability results in a functional impact, which may interfere with activities of "looking up while lifting, down while typing or writing, and side to side while driving." The Board finds that the Veteran does not qualify for an evaluation in excess of 10 percent for his cervical spine limitation of flexion, because flexion has not been limited to more than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran's range of motion does not reach the necessary threshold for a higher rating with repetitive motion and/or flare-ups, and there is also no additional uncompensated limitation of motion that could provide a basis for a higher rating based on pain on functional use. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee strain 4. Entitlement to an initial disability rating in excess of 10 percent for right knee strain 5. Entitlement to an initial disability rating in excess of 10 percent for left knee instability 6. Entitlement to an initial disability rating in excess of 10 percent for right knee instability The Veteran and his representative are seeking a rating in excess of 10 percent for each of his bilateral knee disabilities, which are currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provided ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee was rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee was rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee was rated 30 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect since February 7, 2021, Diagnostic Code 5257 provides ratings for recurrent subluxation or instability and patellar instability. Recurrent subluxation manifested by 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, is rated 10 percent. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent. An 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, is rated 30 percent. 85 Fed. Reg. at 76463. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5262 provided ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect from February 7, 2021, Diagnostic Code 5262 provides that medial tibial stress syndrome (MTSS), or shin splints, is rated: With treatment for less than 12 consecutive months, for one or both lower extremities, 0 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, 10 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, 20 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, 30 percent. Malunion of the tibia and fibula is evaluated under Diagnostic Codes 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, with loose motion, requiring a brace, is rated 40 percent. 85 Fed. Reg. at 76463. Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum, acquired or traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a. The Veteran had a VA examination in July 2012 at which the examiner diagnosed the Veteran with a left knee patella spurring. At this time, the Veteran reported experiencing bilateral knee instability that originated in 2004 after running a lot, and noting that the disability has improved over time. The Veteran did not report experiencing flare-ups during the examination. On examination of the left knee, flexion range of motion was limited to 135 degrees and extension was normal at 0 degrees. As to the right knee, flexion range of motion was limited to 130 degrees and extension was normal at 0 degrees. The examiner further noted that the Veteran was able to perform repetitive use testing, and no additional limitation to range of motion was noted. No functional loss or additional limitation to range of motion was noted. According to the examiner, no pain was noted. The examination also revealed normal muscle strength, no ankylosis, no instability, no patellar subluxation or dislocation, and no meniscal condition. There was no noted use of assistive devices. During the February 2021 Board hearing, the Veteran reported experiencing worsening symptoms due to his cervical spine disability, which resulted in the Board's June 2021 remand for a new examination. Pursuant to the June 2021 Board remand, the Veteran had a VA examination on July 2021. The June 2021 VA examiner diagnosed the Veteran with a bilateral knee strain. During the examination, the Veteran reported that his bilateral knee disability began in 2005 due to the physical activity during service. As reported by the Veteran, his current symptoms are achy pain and a feeling like his knees would give way and have a dull popping. The Veteran also noted that his bilateral knee disabilities impact his ability to walk, hike, exercise, using stairs, and raising and lowering from a seated position. The Veteran noted experiencing flare-ups of the left knee weekly based on physical activity, with "up to moderate severity," lasting minutes to hours, and alleviated by rest or taking it easier. The Veteran noted experiencing flare-ups of the right knee weekly based on physical activity, with "up to moderate severity," lasting minutes to hours, and alleviated by rest or taking it easier. The Veteran reported experiencing a functional impairment, noting he cannot climb stairs easily or rise from a seated position, or walk a long distance. The examiner noted that the Veteran does not have a history of instability or recurrent subluxation, and no history of frequent effusion. On examination of the bilateral knees, flexion range of motion was limited to 125 degrees and extension was normal at 0 degrees. Testing revealed that his passive range of motion was the same as his active range of motion. There was no additional loss to range of motion after observed repetitive use. There was additional loss to range of motion after repeated use over time in the bilateral knees due to pain with flexion range of motion was limited to 120 degrees. There was additional loss to range of motion after flare-ups in the bilateral knees due to pain with flexion range of motion was limited to 115 degrees. Additional factors that contribute to the disabilities in the bilateral knees are disturbance of locomotion, pain that interferes with running, kneeling, climbing, and walking. Testing revealed normal muscle strength, no ankylosis, no instability, no tibular or fibular impairment, and no meniscal condition of the bilateral knees. The Veteran did not report using any assistive devices. The examiner concluded that the bilateral knee disabilities resulted in a functional impact and interference with kneeling, walking for an hour, "climbing 5 flight of stairs, and running for 2 blocks." The record does not show ankylosis, dislocated semilunar cartilage with frequent locking and effusion, removal of semilunar cartilage, limited range of motion of extension, impairment of the tibula or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5261, 5262, and 5263 do not provide any basis for a separate or higher rating in this claim. See 38 C.F.R. § 4.71a. The recent revisions to Diagnostic Codes 5262, effective from February 7, 2021, are therefore also not for application. The Board further finds that the Veteran does not qualify for an evaluation in excess of 10 percent for bilateral knee limitation of flexion, because flexion has not been limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. In fact, the Veteran's current rating for limitation of flexion is based on 38 C.F.R. § 4.59, as his range of flexion is not considered compensable un the applicable Diagnostic Code, although the pain he experiences causes sufficient impairment to support his current 10 percent disability rating. Thus, there is no additional uncompensated compensable limitation of motion that can serve as a basis for a higher rating for limited motion with pain. Regarding the Veteran's bilateral knee instability, while the Veteran has reported experiencing bilateral knee instability, the VA examinations have not revealed findings supporting more than slight bilateral knee instability. Therefore, the Board finds that although credible, the Veteran's statements alone regarding his experiences of giving way do not support entitlement to a rating in excess of 10 percent for his right and left knee instability. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher disability rating for any of his separately rated bilateral knee disabilities. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.