Citation Nr: 21066916 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-42 059 DATE: November 2, 2021 ORDER A 10 percent (but no higher) rating for the right knee instability is granted from September 23, 2010, subject to the regulations governing payment of monetary awards; entitlement to ratings in excess 10 percent for right knee limitation of extension and in excess of 20 percent for right knee instability from February 7, 2021 is denied. FINDINGS OF FACT 1. Throughout from September 23, 2010 to February 7, 2021, the Veteran's right knee instability was reasonably shown to have been manifested by slight, but not greater, instability. 2. From February 7, 2021, the right knee instability is shown to have been manifested by a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and requiring treatment including a prescribed brace and/or assistive device for ambulation. 3. Throughout, the Veteran's right knee disability has been manifested by painful limited motion and flexion no worse than limited to 100 degrees and extension no worse than limited at 10 degrees. CONCLUSIONS OF LAW 1. A 10 percent (but no higher) rating is warranted for right knee instability from September 23, 2010 to February 7, 2021; a rating in excess of 20 percent for right knee instability from February 7, 2021 is not warranted. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5257. 2. A rating in excess of 10 percent is not warranted for right knee limitation of motion. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1990 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) rating decision. In November 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2018, September 2020, and May 2021, this matter was remanded for additional development. An August 2021 rating decision awarded a separate 20 percent rating for right knee laxity and instability, effective February 7, 2021. At the outset, the Board finds there has been substantial compliance with its May 2018, September 2020, and May 2021 remand directives pertaining to this matter. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods when varying degrees of disability were shown can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400 (o)(2). Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Knee disabilities are evaluated under 38 C.F.R. § 4.71a, Codes 5256 through 5263. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As the period under consideration here is from September 22, 2010 (the year prior to the receipt of his claim for an increased rating for his right knee disability) to the present, the Veteran is entitled to a rating under either the prior or the revised (from their effective dates, if more favorable) criteria. See VAGCPREC 3-2000. Under governing case law and GC opinion, separate ratings may be assigned for arthritis with compensable, each, limitations of flexion and extension (or with painful, but less than compensable limited motion), subluxation or instability, and dislocated or symptomatic post-removal semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. Initially, the Board notes that there is nothing in the evidence suggesting the right knee disability is manifested by ankylosis, dislocated or symptomatic post-removal semilunar cartilage, tibia or fibula impairment, or genu recurvatum, so as to warrant ratings under Codes 5256, 5258, 5259, 5262, or 5263. See 38 C.F.R. § 4.71a. Accordingly, those Codes will not be addressed further. Under the pre-February 7, 2021 Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a (maximum) 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under the post-February 7, 2021 Code 5257, instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is 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 warranted when there is 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. Under Code 5260 (unchanged by the February 7, 2021 regulatory change), knee flexion limited to 60 degrees warrants a 0 percent rating, and flexion limited to 45 degrees warrants a 10 percent rating. Higher ratings require a greater limitation of flexion (to 30 degrees for a 20 percent rating and to 15 degrees for a 30 percent rating). Under Code 5261 (also unchanged by the February 7, 2021 regulatory change), knee extension limited at 5 degrees warrants a 0 percent rating, and extension limited at 10 degrees warrants a 10 percent rating. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. Higher ratings require a greater limitation of extension (to 30 degrees for a 40 percent rating and to 45 degrees for a (maximum) 50 percent rating). 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). The Veteran's claim for an increased rating was received September 22, 2011. Accordingly, the relevant period for consideration therefore begins one year prior, in September 22, 2010. VA treatment records note he has been prescribed a knee brace from 2005. A July 2010 VA treatment record notes he has a right knee hinged brace and reported he walks with a cane for balance. A September 23, 2010 VA treatment record notes that he reported the hinged knee brace was rubbing and tearing on clothes, so he removed the metal hinges from the braces, and felt okay without them. On physical examination, his range of motion was within normal functioning/limits and LCL/MCL knee flex was positive. The provider noted the Veteran presented with slight MCL/LCL laxity, clunk, lower extremity muscle tightness and moderate weakness. An October 2010 VA treatment record notes a DJ Horseshoe patella brace was prescribed for chondromalacia/patellar tendonitis. In June 2011, the Veteran submitted statements in support of his claim. While statements from B.W. and A.K. were previously received in 2009, the statement from C.D. was newly associated with the record, and indicates that he can tell that the Veteran is experiencing diminishing productivity due to his joint problems. He reported the Veteran no longer can take long trips in an uncomfortable vehicle has made many unsuccessful attempts to find pain relief. On June 2013 VA examination, a bilateral knee disability was diagnosed. The Veteran reported bilateral knee pain, worse on the right than the left. He reported that he was incapacitated for one month 3-4 years ago due to right knee pain. Range of motion testing was abnormal; flexion to 135 degrees, and extension to 10 degrees were noted. Pain was noted and he could fully extend to 0 degrees with pain. Repetitive use testing did result in additional loss of function or range of motion; extension to 10 degrees, less movement than normal, and pain on movement after repetitive use were noted. Muscle strength was 4/5. There was no muscle atrophy. Joint stability testing was normal; there was no evidence or history of recurrent patellar subluxation/dislocation. There were no meniscal conditions noted. Diagnostic testing did not find arthritis. The Veteran denied using an assistive devise for the right knee. The examiner opined the Veteran does have "a physical problem with knee pain and some limitations" but opined that the major problem preventing him from work (physical labor) rests with his mental limitations. At the May 2014 DRO hearing, the Veteran reported daily pain, muscle weakness, swelling, feeling like his knee pops out of place at night with disuse. He reported he has to pop his knee back into place, weather makes the pain worse, and disuse causes stiffness. It was noted he was wearing a knee brace and he occasionally uses a cane. In a June 2014 statement in support of the claim, a private provider examined his right knee (along with his back and left knee). On physical examination, the right knee range of motion was measured 0 to 105 degrees. The provider found the patellar tendon was sore on clinical examination and there was a small effusion. Effusion was noted as 1+ and the Lachman test (for anterior instability) was noted as 1+. The provider noted the right knee was painful and was causing the Veteran to limp. On July 2014 VA examination, right knee tendinopathy was diagnosed. The Veteran reported peripatellar pain and stiffness; he denied flare ups. Range of motion testing was abnormal; flexion to 100 degrees, and extension to 0 degrees were noted. Pain was noted on weight bearing and on rest/non-movement, but did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation as well as crepitus. Repetitive use testing did not result in additional loss of function or range of motion. The examiner opined that pain and less movement than normal limited functional ability. Muscle strength was 5/5. Joint stability testing was normal. There was evidence or history of recurrent patellar subluxation/dislocation; the provider opined it was moderate on the right side. It was noted that there were no meniscal conditions . Diagnostic testing did not find arthritis. Assistive devices used included constant use of a right knee brace, but the provider did not indicate why the brace was used. The provider opined the Veteran's knee condition does not impact his ability to work. He opined that there was poor effort on the formal part of the examination and remarked that the Veteran's range of motion was observed to be at least greater than 90 degrees as evidenced by him being able to sit in a chair with the knee flexed to the point that it was actually under his seat (>90 degrees). A February 2015 VA treatment record notes the Veteran reported right knee pain. On examination, range of motion found flexion to 130 degrees and extension to 0 degrees. Muscle strength testing was 3/5, noting "breaks away upon testing" and apprehension. The provider did not find knee joint edema or deformity and ligament stability was within normal limits. The Veteran elected to receive a knee sleeve instead of a hinged knee brace. A February 2016 VA treatment record notes the Veteran reported he wears a knee brace for support and pain relief. A February 2017 VA treatment record notes he was issued a new corflex hinged knee brace as his old one was falling apart. At the November 2017 Board hearing, the Veteran testified that his right knee disability had worsened. He testified that he experiences difficulty walking and getting out of bed in the morning, where he feels like his knee is out of joint and he has to physically lift his leg to set it on the floor. He testified he uses a cane for his knee and back and uses a knee brace for stability. He stated that if he does not use the knee brace, his knee will give out and the pain will increase. He alleged a prior examiner forced his knee during testing and he had to go to the emergency room the next day. He also alleged the prior examiner was trying to provoke a response from the Veteran by acting inappropriately. A December 2017 VA treatment record notes reports recent flare ups of right knee pain. He indicated that he has flare-ups associated with changes in weather, particularly in the late fall or early winter. A January 2018 MRI report found full thickness cartilage loss involving the patella as described with associated reactive subchondral marrow changes, which had progressed compared to a prior study; a small mineralized intra-articular body in the posterior medial joint; mild proximal patellar tendinosis; and, edema in the superomedial aspect of the Hoffa's fat pad, which may reflect fat pad impingement. On July 2019 VA examination, the Veteran reported constant pain in his right knee and feeling like it comes out of joint, mostly when he is in bed. He reported his right knee randomly gives out once a month while walking. He reported flare ups and described them has having more severe pain and being unable to put any weight on it. He reported he cannot stand for long period without having pain and that he avoids squatting. Range of motion testing was abnormal; flexion to 140 degrees, and extension to 0 degrees were noted. There was pain on flexion, but it did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation. The examiner opined that passive range of motion testing was not medically appropriate. Repetitive use testing did not result in additional loss of function or range of motion. The examiner, a physician's assistant, found that it would be mere speculation to determine if pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability on repetitive use over time or during a flare up of the right knee because he was not examined under these conditions. The examiner noted prolonged standing causes pain. Muscle strength was 5/5. There was no ankylosis or muscle atrophy. Joint stability testing was normal; there was no evidence or history of recurrent patellar subluxation/dislocation. No meniscal conditions were noted. Assistive devices used included regular use of a right knee brace. Diagnostic testing found degenerative or traumatic arthritis. The examiner described the functional impact of his right knee disability as "he has right knee pain at work, but he now has [a] job in landscaping that is more supervisory and does not have to do the physical work." In a September 2019 addendum opinion to clarify questions regarding estimated range of motion with repeated use over time and during flare-ups, the July 2019 examiner indicated there was no observed/objective basis to answer them (and the provider had no additional information to add). On January 2021 VA examination, the Veteran reported daily right knee pain over the anterior knee that is constant and mostly felt with prolonged walking and physical activities. He reported that his right knee gives out sometimes and the pain occasionally worsens depending on activity. He reported flare-ups when his pain gets worse. He reported he cannot stand long due to his knee. Right patellofemoral pain syndrome and right knee tendinopathy were diagnosed. Range of motion testing was normal; flexion to 140 degrees, and extension to 0 degrees were noted. Pain was noted on flexion, but did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation and weightbearing, noted as moderate in severity at the patella borders. The examiner noted there was no objective evidence of pain on non-weight-bearing and passive range of motion was the same as active range of motion. Repetitive use testing did not result in additional loss of function or range of motion. The examiner opined the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups (they could be accepted as stated). The examiner noted pain limits function with repeated use over time and during flare-ups but it does not result in additional loss of range of motion. Muscle strength was 5/5. There was no ankylosis or muscle atrophy. Joint stability testing was normal; there was no evidence or history of recurrent patellar subluxation/dislocation. There were no meniscal conditions noted. Assistive devices used included regular use of a right knee brace for right knee patellofemoral pain syndrome. The examiner described the functional impact of his right knee disability as experiencing pain with standing over 60 minutes and that he may have difficulty performing duties that require prolonged standing, such as a construction worker. The examiner opined the additional diagnosis of patellofemoral pain syndrome is a progression of his service-connected right knee disability and is due to imbalance of gait and undue stressed placed on the knee joint by the service-connected right knee tendinopathy. On July 2021 VA examination (to assess the knee under the new regulations), the Veteran reported that over the last few years the pain has worsened, noting that pain was more frequent and of a greater intensity. He states the knee gives out on him more frequently and he is having to wear a hinged knee brace. Prior to using the brace, it gave out once a month. He wears the brace and uses a cane constantly. He reported experiencing flare-ups and described them as occurring once a week lasting a few hours up to 2 days. He denied functional impairment due to flare-ups. He reported he has trouble going up stairs or ladders without assistance, difficulty getting up from sitting position to standing without assistance, and that he is unable to sit or stand for prolonged periods. He reported a history of instability, specifically that his right knee frequently gives out on him and he has to now wear a brace almost constantly. Range of motion testing was abnormal; flexion to 110 degrees, and extension to 10 degrees were noted. The examiner opined that passive range of motion testing was the same as active range of motion. Pain was noted on active flexion and extension, passive flexion, weightbearing, non-weightbearing, and on rest/non-movement, but did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation, noted as mild in severity. Repetitive use testing did not result in additional loss of function or range of motion. The examiner opined that evidence suggests that pain, fatiguability, and lack of endurance significantly limits functional ability with repeated use over time and during flare ups. The examiner opined she was unable to determine the range of motion with repeated use over time and during flare ups without resorting to mere speculation after reviewing the Veteran's history, current examination findings, and relevant evidence of record, and utilizing her own clinical judgment and medical expertise. The examiner noted the Veteran was not being examined with repeated use over time or during a flare-up and he could not describe or demonstrate the decreased range of motion with repeated use over time or during flare ups when she asked him to do so. The Veteran reported with repeated use, the loss of range of motion is variable depending on how strenuously the joint was used. At worst he reports he cannot move it all due to pain but there are other times where the range of motion loss is minimal. The examiner noted the range of motion is expected to vary based on activity level and therefore is best described as with increased amount of activity, the Veteran's range of motion would decrease according to the amount of activity. With flare-ups, the examiner opined that the range of motion is expected to vary based on the severity of the flare-up and therefore would be best described as with increase in severity of flare-ups, there is a decrease in range of motion. Additional contributing factors of his right knee disability included interference with standing, interference with sitting, disturbance of locomotion, and instability of station. There was no ankylosis or muscle atrophy. There is no recurrent subluxation, persistent instability, ligament tear, or recurrent patellar instability. Joint stability testing was normal for posterior instability and medial-lateral instability; anterior instability was noted as 1+ (0-5 mm). The Veteran does require a prescription (by a medical provider) of a cane and brace. The examiner described the functional impact of his right knee disability as he would have trouble going up stairs or ladders without assistance, he had difficulty getting up from a seating position, and he is not able to sit or stand for prolonged periods of time. In a July 2021 addendum opinion (pursuant to the May 2021 Board remand), the examiner was unable to provide an estimation on the range of motion during a flare up without resort to mere speculation. She reviewed the Veteran's history, current examination findings, and the relevant evidence of record and applied her clinical judgment and medical expertise. She noted the Veteran was not being observed during a flare-up and he could not demonstrate the decrease in range of motion during a flare-up. The examiner noted there was no observed/objective basis to answer this question and one would only be able to give numerical answers if able to observe the Veteran during a flare-up. He reported that the frequency is now once a week and the symptoms are severe. She requested him to describe or demonstrate the decrease in range of motion during flare-ups, but he was not able to do so. At its worst intensity, he reports he is able to move his leg minimally and has limited ability to bear any weight on his right leg. The examiner opined that his subjective reports of flare-ups have been worsening in frequency, observing that a 2015 treatment record noted he has a flare-up during the late fall or early winter with changes in weather while he now reports having flare-ups once a week. At the outset, the Board notes the rating codesheet has been corrected to continue the compensation for the right knee disability since July 7, 2004, correcting prior rating codesheets which essentially discontinued compensation for a right knee disability without an underlying rating action. The Veteran's right knee disability is rated 10 percent for limitation of motion under Code 5261, throughout, since the award of service connection, and 20 percent under Code 5257 from February 7, 2021, the effective date of the regulations change. Accordingly, the critical questions before the Board are: (1) whether a compensable rating under Code 5257 is warranted prior to February 7, 2021; (2) whether the next higher (30 percent) rating under Code 5257 is warranted from February 7, 2021, either under the old or new rating criteria, whichever are more favorable; (3) whether a separate rating under Code 5260 is warranted; and (4) whether an increased rating under Code 5261 is warranted. Regarding the rating under Code 5257, the Board finds that throughout the evaluation period prior to February 7, 2021, slight instability is shown. VA treatment records show a knee brace was prescribed, alternating between a hinged knee brace and a knee sleeve, and he testified that he uses a cane for stability (see e.g., June 2010 VA treatment record, May 2014 DRO hearing, and November 2017 Board hearing). It may reasonably be assumed that, if there was no instability, such assistive devices would not have been prescribed. Additionally, on June 18, 2014 private examination, objective findings included slight instability in the right knee (anterior instability 1+), confirming his reports of instability. Resolving reasonably doubt regarding degree of disability in the Veteran's favor (as required, see 38 C.F.R. §.4.3), the Board finds a separate 10 percent rating for slight instability under Code 5257 is warranted throughout the evaluation period prior February 7, 2021 (from September 2, 2010). 38 C.F.R. §§ 4.3, 4.71a. More than slight instability has not been found on any objective, clinical evaluation. While the July 2014 VA examiner noted there was evidence or history of moderate recurrent patellar subluxation/dislocation, notably, and the Board finds persuasive, instability testing was normal on the July 2014 VA examination and recurrent patellar subluxation/dislocation was not found on any other objective, clinical evaluation, to include the June 2013 and July 2019 VA examinations or in contemporaneous VA treatment records. Accordingly, a rating in excess of 20 percent under Code 5257 was not warranted prior to February 7, 2021. From February 7, 2021, the Board finds an increased rating (to 30 percent) is not warranted under either the pre- or post- February 7, 2021 rating criteria. The August 2021 rating decision awarded a 20 percent rating for right knee instability under the revised criteria, effective February 7, 2021, the date of the law change. The record does not show that he has an unrepaired or failed repair of a complete ligament tear causing persistent instability. Consequently, a 30 percent rating under the revised Code 5257 is not warranted. The Board also notes that he would not be entitled to a higher than 20 percent rating from February 7. 2021. Notably, on July 2021 VA examination, there were no findings of joint instability except for the right knee anterior instability test, which noted instability as 1+ (5-10 millimeters). Such a finding does not support that there was severe instability. Accordingly, a 30 percent rating is not warranted under either the prior or the revised Code 5257 criteria. Regarding a rating under Code 5260 for limited flexion, at no time is the Veteran's right knee flexion shown to have been limited to 60 degrees or less (flexion has been found at most limited to 100 degrees even with factors such as pain, use, and weight-bearing considered). Thus, compensable limitation of flexion is not shown at any time under consideration. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptoms for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97. Symptoms of joint pain with motion are contemplated by other ratings assigned (the rating under Code 5261). Consequently, a compensable rating under Code 5260 is not warranted. Regarding the rating under Code 5261 for limited extension, a rating in excess of 10 percent is not warranted as limitation of extension at 15 degrees is not shown at any time (or alleged). June 2013 and July 2021 VA examiners found right extension limited to 10 degrees on use. On July 2014, July 2019, and January 2021 VA examinations, and June 2014 private assessment, the four providers found the right knee extension to be full. The Agency of Original Jurisdiction has assigned a 10 percent rating under Code 5261 throughout (based on extension limited to 10-14 degrees) and the Board will not disturb that rating. The Board has considered whether a higher rating under Code 5260 or 5261 is warranted due to functional loss or reduced range of motion with repeated use over time or during flare ups, and finds it is not warranted. The September 2020 and May 2021 Board remands ordered VA examinations to assess the severity of the Veteran's right knee disability that specifically addressed the additional functional loss during flare-ups (as required under Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017)). On July 2021 VA examination (pursuant to the Board remands), the Veteran reported he experiences severe flare ups once per week. While the examiner was unable to determine the range of motion with repeated use over time or during flare ups without resorting to mere speculation, it is notable that she reviewed the evidence of record, to include his prior reports of flare ups, and requested him to describe or demonstrate the reduced range of motion he experiences during flare-ups. Without his own description, as the examiner noted, an estimate of additional loss of function during flare-ups is not possible). While the Veteran reported his range of motion varies based on the severity of the flare up or how strenuously the joint was used over time, he did not identify the degree or any distinct period when symptoms and related impairment with repeated use over time or during flare ups might warrant a further increase in the rating. Considering the foregoing, the Board conclude that a 10 percent rating from September 23, 2010 to February 7, 2021 and 20 percent from that date are warranted for the Veteran's right knee disability under Code 5257 and that a rating in excess of 10 percent under Code 5261 or a further compensable rating under other criteria are not warranted for the right knee disability at any time under consideration. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.