Citation Nr: 21069275 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 11-16 196 DATE: November 18, 2021 ORDER A higher initial rating in excess of 10 percent for the service-connected cervical spine disability from June 21, 2010 is denied. An increased rating in excess of 20 percent for the service-connected thoracolumbar spine disability from June 21, 2010 is denied. An increased rating in excess of 10 percent for the service-connected right knee degenerative joint disease (DJD) from June 21, 2010 is denied. A separate rating for right knee instability, of 10 percent from June 21, 2010 to February 7, 2021, and 20 percent from February 7, 2021, is granted. An increased rating of 20 percent for the service-connected left knee DJD from June 21, 2010 is granted. A separate rating for left knee instability, of 10 percent from June 21, 2010 to February 7, 2021, and 20 percent from February 7, 2021, is granted. FINDINGS OF FACT 1. From June 21, 2010, the service-connected cervical spine disability did not manifest in forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or favorable or unfavorable ankylosis of the cervical spine. 2. From June 21, 2010, the service-connected thoracolumbar spine disability did not manifest in forward flexion of the thoracolumbar spine 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. 3. From June 21, 2010, the service-connected right knee DJD disability manifested in painful arthritis with no incapacitating episodes, without flexion limited to 45 degrees or less, extension limited to 10 degrees or less, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. 4. From June 21, 2010 to February 7, 2021, the service-connected right knee disability manifested in slight instability. 5. From February 7, 2021, the service-connected right knee instability manifested in a ligament sprain causing persistent instability requiring the use of a prescribed assistive device. 6. From June 21, 2010, the service-connected left knee DJD manifested in locking, effusion, and painful arthritis with no incapacitating episodes, without flexion limited to 45 degrees or less, extension limited to 10 degrees or less, ankylosis, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. 7. From June 21, 2010 to February 7, 2021, the service-connected left knee disability manifested in slight instability. 8. From February 7, 2021, the service-connected left knee instability manifested in a ligament tear causing persistent instability requiring the use of a prescribed assistive device. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 10 percent for the service-connected cervical spine disability from June 21, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for an increased rating in excess of 20 percent for the service-connected thoracolumbar spine disability from June 21, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for an increased rating in excess of 10 percent for the service-connected right knee DJD from June 21, 2010 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate disability rating for right knee instability, of 10 percent from June 21, 2010 to February 7, 2021, and 20 percent from February 7, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for an increased rating of 20 percent for the service-connected left knee DJD from June 21, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate compensable rating of 10 percent for the service-connected left knee instability from June 21, 2010 to February 7, 2021 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate compensable rating of 20 percent for the service-connected left knee instability from February 7, 2021 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to August 1991, July 2004 to May 2005, and July 2007 to June 2010. This matter is on appeal from a June 2010 rating decision issued by the Regional Office (RO) in Baltimore, Maryland. The case first came before the Board in June 2014. The Board remanded all the issues in order to collect outstanding medical records and conduct VA examinations for the cervical spine, thoracolumbar spine, and both knees. Medical records were obtained, and VA examinations were conducted in April 2016. A supplemental statement of the case (SSOC) denied all the issues in May 2016. This case was before the Board again in April 2017. The Board remanded the issues in order to conduct VA examinations that were in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that examiners should test range of motion for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances). A VA examination was scheduled in June 2017, but the Veteran failed to appear for the examination. The Veteran did not assert a good cause argument in response to failure to appear for the examination. A SSOC denied all the issues in June 2017. These issues were brought before the Board again in August 2017. The Board remanded the issues again in order to conduct VA examinations that were in compliance with Correia. The Board did not address the failure to appear or make any findings of good cause. VA examinations were conducted in January 2018. A SSOC denied all the issues in January 2019. These issues were brought before the Board again in August 2019. The Board remanded the issues again in order to conduct VA examinations that were in compliance with Correia and Sharp. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (holding that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements). A VA examination was scheduled in December 2019, but the Veteran failed to appear. The Veteran did not assert a good cause argument in response to the failure to appear for the examination. A SSOC denied all the issues in July 2020. These issues were brought before the Board again in May 2021. The Board remanded the issues in order to obtain VA medical treatment records from the Durham VAMC. Medical treatment records were obtained in August 2021. A SSOC denied all the issues in August 2021. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14. prohibits compensating a veteran twice for the same symptoms or functional impairment). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Rating the Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for favorable ankylosis of the entire cervical spine or for forward flexion of the cervical spine 15 degrees or less. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are 0 to 45 degrees; and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Rating the Knees The appropriate diagnostic codes for rating compensable limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case DCs 5257 and 5262. Prior to February 7, 2021 revision, Diagnostic Code 5257 contemplated "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. From February 7, 2021, Diagnostic Code 5257 contemplates "other impairment" of the knee including (1) recurrent subluxation or instability and (2) patellar instability. For recurrent subluxation or instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran exhibits 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, 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. A 10 percent rating is warranted if the veteran exhibits 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. For patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating. A 20 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted if the veteran has 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. Prior to February 7, 2021, Diagnostic Code 5262 contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. From February 7, 2021, the revised Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula with loos emotion requiring brace. A 30 percent rating is assigned for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 0 percent rating is assigned for MTSS, or shin splints, requiring treatment less than 12 consecutive months, one or both lower extremities. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA's General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107. In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered. 1. Rating the Cervical Spine Disability from June 21, 2010 The Veteran is in receipt of a 10 percent disability rating for the cervical spine disability from June 21, 2010, coded under DC 5242. After a review of the evidence, both lay and medical, the Board finds that from June 21, 2010, the cervical spine disability did not manifest in forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or favorable or unfavorable ankylosis of the cervical spine. The Veteran submitted to a VA examination in April 2016. The Veteran reported pain, locking, and migraines. The VA examiner measured forward flexion at 40 degrees and a combined range of motion of the cervical spine at 240 degrees. The VA examiner also noted that the Veteran did not experience muscle spasm or guarding, and there was no ankylosis. The Veteran was experiencing localized tenderness, but it did not result in abnormal gait or abnormal spinal contour. After observed repetitive use testing, the VA examiner found that there was no additional loss of function or range of motion. The VA examiner indicated that the Veteran experienced pain after repetitive use testing over time and during flare ups. At a VA examination in January 2018, the Veteran reported stiffness and spasms. The VA examiner measured forward flexion at 45 degrees and a combined range of motion of the cervical spine at 315 degrees. The VA examiner also assessed that the Veteran did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The VA examiner also noted that the Veteran did not have ankylosis. After observed repetitive use testing, the VA examiner assessed that there was no additional loss of function or range of motion. The VA examiner did not conduct repetitive use testing and did not conduct testing during a flare up. Upon review of VA and private treatment records, there is no indication that the cervical spine had forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or favorable or unfavorable ankylosis of the cervical spine. Based on the foregoing, the criteria for a higher initial rating in excess of 10 percent for the service-connected cervical spine disability from June 21, 2010 have not been met. Even with the consideration of additional functional loss in the form of some pain in the cervical spine (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), and noting that the Veteran was able to perform observed repetitive use tests with no functional loss, a higher initial disability rating in excess of 10 percent for the cervical spine disability is not warranted for any part of the rating period from June 21, 2010. 2. Rating the Thoracolumbar Spine Disability from June 21, 2010 The Veteran is in receipt of a 20 percent disability rating for the thoracolumbar spine disability from June 21, 2010, coded under DC 5242. After a review of the evidence, both lay and medical, the Board finds that from June 21, 2010 the service-connected thoracolumbar spine disability did not manifest in forward flexion of the thoracolumbar spine 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. At a VA examination in April 2016, the Veteran reported spasms and locking. The VA examiner measured forward flexion at 50 degrees and a combined range of motion of the cervical spine at 125 degrees, with no ankylosis. After observed repetitive use testing and repetitive use over time testing and during flare ups, the VA examiner noted pain. At a VA examination in January 2018, the Veteran reported spasms, decreased range of motion, and stiffness. The VA examiner measured forward flexion at 65 degrees and a combined range of motion of the cervical spine at 170 degrees. The VA examiner also noted that the Veteran did not have ankylosis. The VA examiner did not perform observed repetitive use testing because it would cause an exacerbation of back pain. The VA examiner found that repetitive use over time testing and during flare ups, caused pain. Based on the foregoing, the criteria for an increased rating in excess of 20 percent for the service-connected thoracolumbar spine disability from June 21, 2010 have not been met. The Board finds that, even with the consideration of additional functional loss in the form of some pain in the thoracolumbar spine (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), and noting that functional loss testing did not manifest in fatigue, weakness, lack of endurance or incoordination, an increased disability rating in excess of 20 percent for the thoracolumbar spine disability is not warranted for any part of the rating period from June 21, 2010. 3. Rating the Right Knee DJD from June 21, 2010 The Veteran is in receipt of a 10 percent disability rating for the right knee disability from June 21, 2010 because "there evidence of tenderness, crepitus, and clunking of the patellar," coded under DC 5003. See June 2010 Rating Decision. After a review of the evidence, both lay and medical, the Board finds that the right knee DJD disability manifested in painful arthritis with no incapacitating episodes, without flexion limited to 45 degrees or less, extension limited to 10 degrees or less, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. At a VA examination in April 2016, the Veteran reported right knee popping, locking, giving way, and pain. The VA examination indicated that the Veteran had arthritis, but there is no evidence of incapacitating episodes. The VA examiner measured right knee flexion at 110 degrees and extension at 0 degrees. The right knee did not exhibit ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. After observed repetitive use testing, the VA examiner noted no functional loss. The VA examiner assessed that the right knee exhibited pain after repetitive use over time testing and during flare ups. At a VA examination in January 2018, the Veteran reported that the right knee is getting worse. The VA examination indicated that the Veteran had arthritis, but there is no evidence of incapacitating episodes. The VA examiner noted disturbance of locomotion and interference with sitting and standing. The VA examiner measured right knee flexion at 120 degrees and extension at 0 degrees. The right knee did not exhibit ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. After observed repetitive use testing, the VA examiner noted no functional loss. The VA examiner assessed there would be pain after repetitive use over time testing and during flare ups. The evidence in the private treatment records and VA treatment records from VAMCs does not substantiate entitlement to an increased rating in excess of 10 percent for the right knee DJD disability. Even with the consideration of additional functional loss in the form of some pain in the right knee (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), and noting that functional loss testing did not manifest in fatigue, weakness, lack of endurance, or incoordination, an increased disability rating in excess of 10 percent for the right knee DJD disability is not warranted for any part of the rating period from June 21, 2010. 4. Separate Rating for Right Knee Instability After a review of the evidence, both lay and medical, the Board finds that the right knee manifested in slight instability. During the April 2016 VA examination, the Veteran reported that the knee gave way. The April 2016 VA examiner noted that there was no history of lateral instability or recurrent subluxation and that all instability testing produced normal results. During the January 2018 VA examination, the Veteran reported that the right knee symptoms have worsened. The January 2018 VA examiner noted that there was no history of lateral instability or recurrent subluxation; all instability testing produced normal results. After a review of the evidence, both lay and medical, the Board finds that the right knee instability disability manifested in a ligament sprain causing persistent instability requiring the use of a prescribed assistive device. During the April 2016 VA examination, the Veteran reported that the knee gave way and used a brace and a cane constantly. During the January 2018 VA examination, the Veteran reported that he used a brace constantly and crutches regularly. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate compensable rating of 10 percent for the service-connected right knee instability under DC 5257 from June 21, 2010 to February 7, 2021 (old instability rating criteria) have been met. The criteria for a separate compensable rating of 20 percent for the service-connected right knee instability under DC 5257 from February 7, 2021 (new instability rating criteria) have been met. 5. Rating the Left Knee DJD from June 21, 2010 The Veteran is in receipt of a 10 percent disability rating for the left knee disability from June 21, 2010 because "there is evidence of painful and limited motion of a major joint," coded under DC 5010. See June 2010 Rating Decision. After a review of the evidence, both lay and medical, the Board finds that the left knee DJD disability manifested in locking, effusion, and painful arthritis with no incapacitating episodes, without flexion limited to 45 degrees or less, extension limited to 10 degrees or less, ankylosis, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. At a VA examination in April 2016, the Veteran reported left knee popping, locking, giving way, and pain. The VA examiner noted a left knee meniscal tear, frequent episodes of joint locking, joint pain, and joint effusion. The VA examination indicated that the Veteran had arthritis, but the evidence does not show incapacitating episodes. The VA examiner noted disturbance of locomotion and interference with sitting and standing. The VA examiner measured left knee flexion at 110 degrees and extension at 0 degrees. The left knee exhibited a meniscal tear, joint locking, and joint effusion. The left knee did not exhibit ankylosis, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. After observed repetitive use testing, the VA examiner noted no functional loss. The VA examiner assessed there would be pain after repetitive use over time testing and during flare ups. At a VA examination in January 2018, the Veteran reported that the left knee is getting worse, and that the knee would swell, pop, and lock. The VA examiner noted effusion, swelling, disturbance of locomotion, and interference with sitting and standing in the left knee. The VA examination indicated that the Veteran had arthritis, but does not show incapacitating episodes. The VA examiner measured left knee flexion at 105 degrees and extension at 0 degrees. The left knee did not exhibit ankylosis, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased rating of 20 percent for the service-connected left knee DJD disability under DC 5258 (maximum rating) from June 21, 2010 have been met. 6. Separate Rating for Left Knee Instability After a review of the evidence, both lay and medical, the Board finds that the left knee disability manifested in slight instability. During the April 2016 VA examination, the VA examiner noted that the Veteran had instability of station on the left side but noted no history of recurrent subluxation or lateral instability and all instability testing produced normal results. During the January 2018 VA examination, the Veteran reported that the left knee symptoms have worsened. The January 2018 VA examiner conducted stability testing and found that the Veteran exhibited some mild anterior instability. The left knee instability disability manifested in a ligament tear causing persistent instability requiring the use of a prescribed assistive device. During the April 2016 VA examination, the Veteran reported that the knee gave way and used a brace and a cane constantly. During the January 2018 VA examination, the Veteran reported that he used a brace constantly and crutches regularly. Resolving reasonable doubt in favor of the Veteran, the criteria for a higher initial rating of 10 percent for the service-connected left knee instability under DC 5257 from June 21, 2010 to February 7, 2021 have been met. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate compensable rating of 20 percent for the service-connected left knee instability under DC 5257 from February 7, 2021 have been met. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.