Citation Nr: 21069398 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-32 611 DATE: November 18, 2021 ORDER Entitlement to a 30 percent rating for a right knee disability based on limitation of motion for the period prior to October 21, 2019 is granted. Entitlement to a 30 percent rating for a right knee disability based on limitation of motion for the period since October 21, 2019 is granted. Entitlement to a 30 percent rating for a left knee disability based on limitation of motion for the period prior to October 21, 2019 is granted. Entitlement to a 30 percent rating for a left knee disability based on limitation of motion for the period since October 21, 2019 is granted. Entitlement to a disability rating in excess of 10 percent for right knee instability for the period prior to February 7, 2021 is denied. Entitlement to a 30 percent disability rating but no higher, for right knee instability for the period from February 7, 2021 to August 12, 2021 is granted. Entitlement to a disability rating in excess of 30 percent for right knee instability for the period since August 12, 2021 is denied. FINDINGS OF FACT 1. The Veteran's right and left knee disabilities are manifested by additional functional loss that resulted in weakness, limited motion, and additional pain. 2. For the period prior to February 7, 2021, the Veteran's right knee instability was manifested by slight recurrent lateral instability that did not require a prescribed assistive device or bracing for ambulation. 3. For the period from February 7, 2021 to August 11, 2021, the Veteran's right knee instability was manifested by severe recurrent lateral instability that required a prescribed assistive device or bracing for ambulation. 4. For the period since August 12, 2021, the Veteran's right knee instability has been manifested by severe instability and evaluated at 30 percent, the maximum schedular rating available. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for a right knee disability (limitation of motion) for the period prior to October 21, 2019 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for a 30 percent rating for a right knee disability (limitation of motion) for the period since October 21, 2019 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2020). 3. The criteria for a 30 percent rating for a left knee disability (limitation of motion) for the period prior to October 21, 2019 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2020). 4. The criteria for a 30 percent rating for a left knee disability (limitation of motion) for the period since October 21, 2019 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2020) 5. The criteria for a rating in excess of 10 percent for right knee instability for the period prior to February 7, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4. 1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 6. The criteria for a 30 percent rating for right knee instability for the period from February 7, 2021 to August 12, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4. 1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020), Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 7. The criteria for a rating in excess of 30 percent for right knee instability for the period since August 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4. 1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020), Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active service from November 1981 to November 1985 and from March 1986 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and May 2021 the Board remanded these issues for additional development. In an August 2021 rating decision, the RO granted an increased 20 percent rating for right knee instability, effective, August 12, 2021. In a September 2021 rating decision, the RO granted an increased 30 percent rating for right knee instability, effective, August 12, 2021. The Board notes that the Veteran did not express satisfaction with these increased ratings. Accordingly, the issue of entitlement to a rating in excess of 30 percent for right knee instability for the period from August 12, 2021 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his knee disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 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). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran's left knee disability is currently rated as 10 disabling for the period prior to October 21, 2019 under Diagnostic Code 5260 and 20 percent disabling under Diagnostic Code 5258 for the period since October 21, 2019. The Veteran's right knee disability is currently rated as 10 disabling for the period prior to October 21, 2019 under Diagnostic Code 5260 and 20 percent disabling under Diagnostic Codes 5258-5260 for the period since October 21, 2019. The Veteran's right knee instability disability is currently rated as 10 and 30 percent disabling under Diagnostic Codes 5257. Notably, the criteria for knee instability under Diagnostic Code 5257 have changed during the period covered by this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes, 5257, 5055). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a single rating of 20 percent rating is available where there is cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under the criteria in effect prior to February 7, 2021, under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under the revised criteria, Diagnostic Code 5262 now provides a 30 percent evaluation for 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 warranted for 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 warranted for 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; and a noncompensable rating is warranted for shin splints that have treatment less than 12 consecutive months, one or both lower extremities. Under the criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2020). The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257 and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. Under the revised criteria, Diagnostic Code 5257 for recurrent subluxation and instability now provides a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation or a sprain incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is warranted for 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 for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability under the revised Diagnostic Code 5257, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating is warranted for 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. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background The Veteran filed a claim for increased ratings that was received by VA in July 2012. The Veteran underwent a VA examination in August 2012. The Veteran had chondromalacia patella of the bilateral knees and a lateral meniscus injury of the left knee. The Veteran reported having flare-ups occasionally with bending. The flare ups lasted hours and involved increased pain. On examination, right knee flexion was from 0 to 130 degrees and extension was 0 degrees. Left knee flexion was from 0 to 120 degrees and extension was 0 degrees. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions. There was functional loss as the Veteran had pain on movement, and less movement than normal bilaterally and swelling and deformity of the left knee. There was pain and tenderness on palpation. Muscle strength and stability testing was normal. There was no history of recurrent subluxation. The Veteran previously had a left meniscus condition and currently had frequent episodes of joint pain. The Veteran constantly used a brace and regularly used a cane. The Veteran's knee disabilities impacted his ability to work as he had limited bending, climbing and kneeling. The Veteran underwent a VA examination for his right knee in July 2014. The Veteran had right knee instability and mild degenerative joint disease of the right knee. The Veteran reported having flare-ups when the pain could increase and last from a few hours to a few days. The Veteran reported that during flare-ups he could not stand and could not bend his knee. On examination, right knee flexion was from 0 to 115 degrees with objective evidence of pain beginning at 100 degrees. Extension was to 5 degrees. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions. There was functional loss as the Veteran had pain on movement, less movement than normal, weakened movement and excess fatigability. There was no pain to tenderness or palpation. Muscle strength and stability testing was normal. There was no history or evidence of recurrent subluxation. The Veteran constantly used a brace. The Veteran's right knee disability impacted his ability to work as he was limited in kneeling and squatting. The Veteran underwent a VA examination in May 2016. The Veteran had chondromalacia patella of the bilateral knees and instability of the right knee. The Veteran did not report having flare-ups but described having burning pain in his knees and having to wear knee braces all the time in order to avoid his knees from giving out. He had functional impairment as he could not ride a bike or hike and climbing and inclining was very difficult. He tried to avoid stairs. On examination, right knee flexion was from 5 to 115 degrees and extension was from 115 to 5 degrees. Left knee flexion was from 5 to 100 degrees and extension was from 100 to 5 degrees. The range of motion contributed to functional loss as the Veteran could not kneel. There was no evidence of pain with weight bearing but there was objective evidence of crepitus and tenderness to palpation. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions. Pain, weakness, fatigability or incoordination did not additionally limit range of motion after repetitive use over time or after flare-ups. The Veteran had instability of station, interference with standing and interference with sitting. Right knee muscle strength was normal but the left knee demonstrated active movement against some resistance (4/5). There was no muscle atrophy and no ankylosis. Joint stability testing was normal and there was no history or evidence of recurrent subluxation. The Veteran had meniscus tears of both the right and left knees which resulted in bilateral knee pain, popping and instability as well as frequent episodes of joint pain. The Veteran constantly used a brace and a cane. The Veteran's bilateral knee disability impacted his ability to work as he could not do extensive walking or standing, could not walk on uneven ground and could not climb stairs or ladders. The Veteran underwent a VA examination in October 2019. The Veteran had bilateral knee meniscal tears, knee joint osteoarthritis, knee instability and patellofemoral pain syndrome. The Veteran reported that he could not bike or hike, climbing and inclining was very difficult especially on unstable surfaces and he tried to stay away from stairs. He reported weekly flare-ups which were moderate on the right knee and moderate to severe on the left knee. These flare-ups lasted all day. He had functional loss as he was unable to use the stairs and used a cane for stability. On examination, right knee flexion was from 0 to 45 degrees and left knee flexion was from 0 to 50 degrees. The loss of range of motion caused functional loss as he was unable to bend his knee all the way due to chondromalacia. There was evidence of localized tenderness, pain with weight bearing and crepitus. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions. Pain, weakness, fatigability or incoordination additionally limited range of motion after repetitive use over time or after flare-ups as right knee flexion was from 0 to 30 degrees after flare-ups and left knee flexion was from 0 to 40 degrees after flare-ups. There was instability of station and interference with sitting and standing. Prolonged sitting and standing caused knee stiffness, pain and instability. There was a reduction in muscle strength as both the left and right knees demonstrated active movement against some resistance (4/5). There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation but there was a history of slight lateral instability of both the left and right knees. There was no history of joint effusion and joint stability testing was normal. The Veteran had meniscal tears of both knees with frequent episodes of locking and frequent episodes of joint pain. He regularly used a brace and constantly used a cane. The Veteran's bilateral knee disability impacted his ability to work as he was unable to perform high impact activities, was unable to bend, kneel or squat down, was unable to stand longer than 15-30 minutes, was unable to lift more than 30 pounds and required a use of a cane for ambulation and mobility. The Veteran underwent a VA examination in February 2021. The Veteran reported that he could not sit or stand for more than 5 minutes. He reported severe flare-ups of both knees as he was in pain "24/7" if he moved or twisted the wrong way which caused functional impairment. He reported instability as his knees popped out. He also noted effusion. On examination, right knee flexion was from 0 to 140 degrees and left knee flexion was from 5 to 100 degrees. The left knee had evidence of pain on active motion, non-weight bearing and passive motion. There was no objective evidence of crepitus but the left knee had localized tenderness on palpation. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions on the right knee. Left knee flexion was from 0 to 90 degrees after repetitive motion testing. Pain, weakness, fatigability or incoordination did not additionally limit range of motion after flare-ups. There was interference with standing, interference with sitting, disturbance of locomotion and swelling. There was no muscle atrophy and no ankylosis. There was recurrent subluxation and persistent instability of both knees but the Veteran did not require a prescription for ambulation such as a cane, walker, crutches or brace. There was no recurrent patellar instability. The Veteran had bilateral meniscus tears with frequent episodes of joint pain and frequent episodes of joint effusion. There was occasional swelling of the right knee and swelling and pain of the left knee. The Veteran regularly used a cane and walker. The Veteran's ability to work was impacted as he could not lay down for more than 10 minutes and could not stand or walk for more than 5 minutes. The examiner found that there was slight recurrent subluxation of the right knee and no findings of joint instability of the right or left knees. Per the May 2011 Board remand instructions, the Veteran underwent a VA examination in August 2021. The Veteran reported that he had pain and stiffness as well as instability of the right knee. He had severe flare-ups of both knees as he had daily flare-ups that lasted several hours which amplified pain and stiffness. During flare-ups, the Veteran must refrain from usual function of the joint during the duration of the flare-up. He reported functional impairment as he had difficulty walking, standing and running. He had a history of recurrent subluxation or instability of the knee as he used a brace and cane. He had a history of recurrent effusion of the knee. On examination, right knee flexion was from 0 to 105 degrees and left knee flexion was from 0 to 105 degrees. There was evidence of pain on active motion, weight bearing, non-weight bearing, passive motion and rest/non-movement which caused functional loss. There was objective evidence of crepitus and localized tenderness on palpation. The Veteran was able to do repetitive motion testing and there was no additional limitation of motion after three repetitions on. Pain, additionally limited range of motion with repeated use over time as flexion was from 0 to 100 degrees. Pain, fatigability, lack of endurance and incoordination additionally limited range of motion after flare-ups as flexion was from 0 to 100 degrees. There was no muscle atrophy and no ankylosis. There was recurrent subluxation or persistent instability of the right knee and the Veteran required a prescription for a cane and a brace. There was no recurrent patellar instability. The Veteran had bilateral meniscus tears with frequent episodes of joint pain. The Veteran regularly used a cane and walker. The Veteran's ability to work was impacted as he should avoid employment or vocations that required standing or weight bearing ambulation. In a September 2021 addendum opinion, the August 2021 VA examiner indicated that the functional impact of the Veteran's knee conditions in light of the March 2015 and February 2021 VA examination reports was that the Veteran had been prescribed knee braces. Limitation of Motion Period prior to October 21, 2019 As noted above, the left and right knee disabilities are currently rated as 10 disabling for the period prior to October 21, 2019 under Diagnostic Code 5260. Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that 30 percent disability ratings are warranted for the Veteran's service-connected right and left knee disabilities (limitation of motion). Regarding limitation of flexion, the Board notes that for a 30 percent evaluation under Diagnostic Code 5260, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, on VA examination in August 2012 right knee flexion was from 0 to 130 degrees and left knee flexion was from 0 to 120 degrees, in July 2014 right knee flexion was from 0 to 115 degrees, and in May 2016 right knee flexion was from 5 to 115 degrees and left knee flexion was from 5 to 100 degrees. However, on his August 2012 VA examination, the Veteran reported having flare-ups occasionally with bending that lasted hours and involved increased pain while on his May 2016 VA examination, the Veteran described having burning pain in his knees, having to wear knee braces all the time and functional impairment as he could not ride a bike or hike and climbing and inclining was very difficult. The Veteran also could not kneel, there was objective evidence of crepitus and tenderness to palpation and the examiner found that the Veteran's bilateral knee disability impacted his ability to work as he could not do extensive walking or standing, could not walk on uneven ground and could not climb stairs or ladders. Based on the reported symptomatology of the Veteran's reported functional impairment at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that higher percent ratings are warranted for the Veteran's right and left knee disabilities for limitation of motion for the period prior to October 21, 2019. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran's right and left knee disabilities warrant higher 30 percent disability ratings, the evidence does not demonstrate that rating are warranted for evaluations in excess of 30 percent. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant a rating in excess of 30 percent for the right and left knees, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran's extension of the right and left knees limited to at most 5 degrees without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right or left knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant disability ratings in excess of 30 percent under Diagnostic Code 5261. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for left and right knee disabilities. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. The Board also finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259. Notably, the VA examiners indicated that the Veteran had meniscus tears of both the right and left knees which resulted in bilateral knee pain, popping and instability as well as frequent episodes of joint pain However, as the Veteran is now being awarded 30 percent ratings in the right and left knees based, in part, on pain and limitation of motion, separate disability ratings under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation. Thus, for this reason, separate ratings under these codes would violate 4.14. Accordingly, the Board finds that 30 percent ratings, but no higher, for the right and left knee disabilities (limitation of motion) for the period prior to October 21, 2019 is warranted. Period since October 21, 2019 As noted above, the left knee disability is currently rated as 20 percent disabling under Diagnostic Code 5258 while the Veteran's right knee disability is currently rated as 20 percent disabling under Diagnostic Codes 5258-5260 for the period since October 21, 2019. Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that 30 percent disability ratings are warranted for the Veteran's service-connected right and left knee disabilities (limitation of motion) for the period since October 21, 2019. As noted above, the Veteran's right and left knees are currently rated as 20 percent disabling under Diagnostic Codes 5258 and 5258-5260. However, the maximum permissible rating under Diagnostic Code 5258 is the Veteran's current 20 percent disability rating. As a result, the Board finds that is more advantageous for the Veteran's pain symptoms to be rated under Diagnostic Code 5260 which contemplates functional loss due to pain for each knee due to limitation of motion. Regarding limitation of flexion, the Board notes that for a 30 percent evaluation under Diagnostic Code 5260, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, on VA examination in October 2019 right knee flexion was from 0 to 30 degrees after flare-ups and left knee flexion was from 0 to 40 degrees after flare-ups, in February 2021 right knee flexion was from 0 to 140 degrees and left knee flexion was from 0 to 90 degrees after repetitive motion testing and in August 2021, right and left knee flexion was from 0 to 100 degrees after repeated use over time. However, on his October 2019 VA examination, the Veteran reported that he could not bike or hike, climbing and inclining was very difficult and he reported weekly flare-ups which were moderate on the right knee and moderate to severe on the left knee. There was also interference with sitting and standing and prolonged sitting and standing caused knee stiffness, pain and instability. On his February 2021 examination, the Veteran reported that he could not sit or stand for more than 5 minutes as he reported severe flare-ups of both knees as he was in pain "24/7" if he moved or twisted the wrong way which caused functional impairment. There was also interference with standing, interference with sitting, disturbance of locomotion and swelling and the examiner noted that the Veteran's ability to work was impacted as he could not lay down for more than 10 minutes and could not stand or walk for more than 5 minutes Most recently, the VA examiner in August 2021 noted that the Veteran reported that he had severe flare-ups of both knees as he had daily flare-ups that lasted several hours which amplified pain and stiffness. He also reported functional impairment as he had difficulty walking, standing and running while the examiner noted that the Veteran's ability to work was impacted as he should avoid employment or vocations that required standing or weight bearing ambulation. Based on the reported symptomatology of the Veteran's reported functional impairment at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that higher 30 percent ratings are warranted for the Veteran's right and left knee disabilities for limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran's right and left knee disabilities warrant higher 30 percent disability ratings, the evidence does not demonstrate that ratings are warranted for evaluations in excess of 30 percent. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant a rating in excess of 30 percent for the right knee, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran's extension of the right and left knees are limited to at most 5 degrees without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right or left knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant disability ratings in excess of 30 percent under Diagnostic Code 5261. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for left and right knee disabilities. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. The Board also finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259. As noted above, the Veteran's right and left knee disabilities were previously rated as 20 percent disabling under Diagnostic Code 5258. However, as 30 percent evaluations under Diagnostic Code 5260 are more advantageous to the Veteran, it would violate the rule against pyramiding to compensate the Veteran's knee pain symptomatology again under Diagnostic Code 5258. The Board again notes that is more advantageous for the Veteran's pain symptoms to be rated under Diagnostic Codes 5260 and 5261, as the maximum permissible rating under Diagnostic Code 5258 is only 20 percent. Accordingly, the Board finds that 30 percent ratings, but no higher, for the right and left knee disabilities (limitation of motion) for the period since October 21, 2019 is warranted. Instability Period prior to February 7, 2021 For the period prior to February 7, 2021, the Veteran has a 10 percent disability rating under Diagnostic Code 5257. The Board finds that higher evaluations for "moderate" instability is not warranted based upon the evidence of record for the period prior to February 7, 2021. As noted above, to warrant a 20 percent disability rating under the previous criteria of Diagnostic Code 5257, moderate recurrent subluxation or lateral instability must be demonstrated. In this instance, however, the Board finds that a rating in excess of 20 percent is not warranted for right knee instability as there is no evidence of moderate recurrent subluxation or lateral instability of the right knee. Notably, the July 2014 and May 2016 VA examiners noted that stability testing was normal and there was no history or evidence of recurrent subluxation. The October 2019 VA examiner indicated that there was no history of recurrent subluxation but did not that there was a history of lateral instability of both the right knee. However, the examiner also specifically indicated that the Veteran had slight instability of the right knee while noting that there was no history of joint effusion and joint stability testing was normal. The Board finds that the Veteran was competent and credible in his reporting of his right knee instability. The Board, nevertheless, ultimately places more weight on the consistent results of his VA examinations, which revealed no objective evidence of moderate instability in his right knee. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). As the record only demonstrates at most slight instability for the right knee, an evaluation in excess of 10 percent under the old regulation of Diagnostic Code 5257 is not warranted. Thus, a greater than 10 percent is not warranted for the right knee under the old criteria of Diagnostic Code 5257. Thus, the Board finds that the medical evidence of record does not show a clinical diagnosis or probative evidence to support a moderate disorder. As a result, a rating in excess of 10 percent for right knee instability not warranted for the period prior to February 7, 2021. Period from February 7, 2021 to August 12, 2021 For the period from February 7, 2021 to August 12, 2021, the Veteran has a current 10 percent disability rating under Diagnostic Code 5257. As noted above, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board considers the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this instance, when applying both the old and new rating criteria for the period from February 7, 2021, the Board finds that the criteria that is more favorable to the Veteran is the new rating criteria which warrants the Veteran an increased 30 percent rating under Diagnostic Code 5257. Again, under the newer regulation for under Diagnostic Code 5257, for an increased 20 percent rating there must be an 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. For a 30 percent rating, there must be 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 or 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. Notably, the February 2021 VA examiner found that there while there was recurrent subluxation or persistent instability of both knees, the Veteran did not require a prescription for ambulation such as a cane, walker, crutches or brace. However, as specifically addressed by the August 2021 VA examiner in a September 2021 addendum opinion, the functional impact of the Veteran's knee conditions in light of the March 2015 and February 2021 VA examination reports was that the Veteran had been prescribed knee braces. As a result, when affording the Veteran the benefit of the doubt, the Board finds that an increased 30 percent disability rating is warranted for right knee instability for the period from February 7, 2021 to August 12, 2021 under the new rating criteria of Diagnostic Code 5257. As noted above, the August 2021 VA examiner in a September 2021 addendum opinion found that the functional impact of the Veteran's knee conditions in light of the March 2015 and February 2021 VA examination reports was that the Veteran had been prescribed knee braces. Additionally, the February 2021 VA examiner noted that the Veteran had persistent instability of both knees. As a result, the Board finds that the Veteran had persistent instability with a prescribed brace for ambulation which warrants an increased 30 percent rating. Period Since August 12, 2021 As noted above, for the period since August 12, 2021, the Veteran is in receipt of a 30 percent evaluation under diagnostic code 5257 based upon severe instability of the right knee. Notably, a 30 percent rating is the maximum rating allowable under both the old and revised Diagnostic Code 5257. Accordingly, a higher rating under that code is not warranted. Additionally, the Board notes that the Veteran's right knee was not ankylosed, nor was there evidence of malunion or nonunion of the tibia or fibula, or genu recurvatum, such that ratings under Diagnostic Codes 5256, 5262 or 5263 would be appropriate. The Board observes that a 30 percent rating is the maximum schedular rating for subluxation or instability. Thus, ratings in excess of 30 percent are not available under Diagnostic Code 5257. Accordingly, a higher rating for the right knee instability under Diagnostic Code 5257 must be denied as a matter of law. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). As such, for the period since August 12, 2021 a rating in excess of 30 percent for right knee instability under Diagnostic Code 5257 is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.