Citation Nr: 21071143 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 13-28 919 DATE: November 29, 2021 ORDER 1. Entitlement to an evaluation in excess of 10 percent, prior to April 25, 2018, and in excess of 40 percent thereafter, for limitation of extension of the service-connected right knee strain, status post right knee arthroscopic surgery and synovitis (right knee disability), is denied. 2. Entitlement to a separate 20 percent rating for limitation of flexion of the service-connected right knee disability, effective December 8, 2020, is granted. FINDINGS OF FACT 1. Prior to April 25, 2018, flexion was no less than 115 degrees and there was no limitation of extension 2. Since April 25, 2018, extension has been not been limited to 45 degrees. 3. Since December 8, 2020, but no earlier, flexion has been limited to 30 degrees. 2. The most probative evidence of record does not reflect the presence of right knee ligament damage, lateral instability, or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for limitation of extension of the right knee disability prior to April 25, 2018, or in excess of 40 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for a separate 20 percent disability rating for limitation of flexion of the right knee disability, since December 8, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, DC 5260. 3. The criteria for a separate disability rating for lateral instability or recurrent subluxation for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to October 1988. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in June 2013 and before the undersigned Veterans Law Judge in a January 2017 video conference hearing. Transcripts of both hearings have been associated with the file. In an October 2019 Board decision, the issue of entitlement to an increased evaluation for the Veteran's right knee disability was denied. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). The Court vacated the Board's decision and adopted a January 2021 Joint Motion for Partial Remand (JMPR), limiting reconsideration of the Veteran's claim to the specific denial of entitlement to an increased evaluation for his right knee disability. Moreover, the Veteran's specific concern noted by the JMR was entitlement to a separate disability award for instability/subluxation of the right knee. In June 2021, the Board remanded this matter for further development in accordance with the January 2021 JMPR. Specifically, the Board asked an examiner to gather the necessary information to render an opinion regarding the Veteran's symptoms, including lateral instability or recurrent subluxation. The examiner's attention was specifically drawn to the Veteran's lay statements regarding instability of the knee. In August and September 2021, a VA examiner rendered an opinion on the issue of lateral instability and recurrent subluxation that considers the Veteran's lay statements and the medical evidence of record. As such, the Board finds that there has been substantial compliance with the previous remand instructions and that the claim may be adjudicated at this time. Entitlement to an evaluation in excess of 10 percent, prior to April 25, 2018, and in excess of 40 percent thereafter, for the right knee disability is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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 evaluation 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 disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). At the time of his application for increase on March 22, 2011, the Veteran was assigned a 10 percent disability rating which was increased to the currently assigned 40 evaluation effective April 25, 2018. The knee may be rated under various diagnostic codes. The criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5260 and 5261 remained the same. The diagnostic criteria applicable to recurrent subluxation or lateral instability, prior to February 7, 2020, is found at 38 C.F.R. § 4.71a, DC 5257 (2020). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the 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. It should also be noted that 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. The criteria for DC 5257 have been amended to address recurrent subluxation and patellar instability, effective February 7, 2020, as explained below. Under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, DC 5257 awards a 10 percent rating 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. 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 a brace, cane, or walker. 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. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5258 and 5259 remained the same. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 and have been amended, effective February 7, 2020. Under that code, prior to February 7, 2020, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Since February 7, 2020, malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula continues to warrant a 40 percent evaluation with loose motion, requiring a brace. Medial tibial stress syndrome (MTSS) and shin splints are also rated under DC 5262, effective February 7, 2020. A noncompensable rating is warranted for treatment for less than 12 consecutive months for one or both lower extremities. A 10 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to either shoe orthotics or other conservative treatment for one or both lower extremities. A 20 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for both lower extremities. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, the diagnostic criteria related to ankylosis of the knee, DC 5256, and genu recurvatum, DC 5263, remained the same. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2020). As the Veteran has not had a knee replacement, or demonstrated ankylosis or genu recurvatum in either knee, these codes are inapplicable. An April 2011 private treatment record reflects that the Veteran reported "occasional pain and stiffness" without any locking or catching in his right knee. MRI of the right knee revealed intact menisci, no displaced cartilage or osseous injuries and trace knee joint effusion. Upon VA examination in May 2011, the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, locking, tenderness and pain. He further described daily flare-ups lasting for one day with severe pain precipitated by physical activity, and limitation of motion. Physical examination revealed flexion to 140 degrees with pain but without additional loss of motion on repetition. Stability and meniscal testing were within normal limits. The examiner noted that there was no evidence of instability, subluxation, effusion, weakness, guarding, crepitus, or ankylosis of the right knee. During the June 2013 DRO hearing, the Veteran reported symptoms of instability without a brace, but wanted to start using a brace because the knee "lost a lot of its motion." In June 2013, the Veteran submitted a Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). The examiner identified stiff and painful motion. Flexion was to 115 degrees flexion and extension to 25 degrees. Painful motion began at 10 degrees for both ranges of motion. Muscle strength was decreased and there was pain on movement, less movement, disturbance of locomotion and interference on standing identified as present. Pain on palpation and crepitus also were identified. The examiner noted slight joint instability, but was unable to complete testing on the right knee. The Veteran did not use an assistive device for locomotion. A July 2013 VA examination report noted complaints of constant pain while walking. The Veteran reported flare-ups resulting in his knee locking or weakening with sensitivity to pressure. Physical evaluation revealed flexion to 135 degrees and extension without limitation. Repetitive motion testing revealed pain and less movement than normal, but no additional loss of range of motion. There was no pain on palpation of the right knee. Muscle strength and joint stability testing were normal without evidence of ankylosis. The examiner noted that there was no history of recurrent subluxation or dislocation. There was no evidence of tibial or fibular impairment or any meniscal conditions. The examiner also observed no additional limitation of functional ability of the knee joint during flare-ups or repeated use over time. At the January 2017 Board hearing, the Veteran testified that he experienced right knee symptoms including pain, fatigue, swelling, instability, flare-ups, and limited range of motion. The record includes multiple statements from the Veteran and family members which correspond with the testimony provided before the Board in January 2017. The April 2018 VA examiner did not review records but conducted an in-person interview. The Veteran reported a similar history as noted above, including constant low-level pain increased with stairs and instability. Flare-ups were reported with symptoms of his knee giving out. Physical evaluation revealed range of motion from 30 to 110 degrees, with objective evidence of pain. There was no evidence of pain on palpation, but there was crepitus and pain with weight-bearing. Repetitive motion testing was not conducted due to pain. The examiner estimated that there would be no additional limitation of motion following repetitive use over time or during a flare-up. Both pain and lack of endurance limited functional ability with use over time. Muscle strength was slightly decreased, with no evidence of muscle atrophy. The examiner noted that there was no history of recurrent subluxation, lateral instability, recurrent effusion, or tibial or fibular impairment. Joint instability was noted, but not tested due to pain. An antalgic gait was also noted without use of assistive device or evidence of ankylosis. No objective evidence of pain on nonweight-bearing was noted, but there was a reported difficulty with stairs. In April 2019, the Veteran was afforded another in-person examination. The Veteran reported burning pain with swelling and locking up. Daily severe flare-ups lasting between 5-10 minutes were reported, which resulted in an inability to stand, walk, or bend due to pain. Physical evaluation revealed range of motion from 25 to 105 degrees with pain and guarding and tenderness. There was objective evidence of pain with passive and active motion, as well as weight-bearing and nonweight-bearing. No repetitive testing was accomplished due to "fear of pain." Less movement, swelling and disturbance of standing and locomotion due to pain were identified. Muscle strength slightly decreased, with no muscle atrophy or ankylosis. Trace edema was noted on the exam and joint instability testing was normal. The examiner noted that there was no history of recurrent subluxation, lateral instability, or tibial or fibular impairment. Regular use of braces and crutch was reported. The examiner concluded that, following a complete review of the record and examination of the Veteran, there was "no basis to offer additional losses of function or motion with repetitive use or a flare-up." In December 2020, the Veteran underwent another VA examination for his right knee, at which time he reported pain and limited mobility. He further described flare-ups, which resulted in increased pain, swelling, and limited range of motion. The Veteran also described functional impairment that included difficulty sitting or standing for prolonged periods of time, as well as difficulty using stairs and walking for long distances. Flexion was to 30 degrees, with objective evidence of pain, while extension was to 0 degrees. There was moderate pain on palpation of the knee, pain with weight-bearing and crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. Although the Veteran was not examined following repetitive use over time or during a flare-up, the examiner estimated that flexion would be limited to 25 degrees, with no additional limitation of extension. The examiner noted that swelling and decreased range of motion limited the Veteran's mobility and ability to sit and stand for prolonged periods. Muscle strength testing was slightly decreased, with no evidence of muscle atrophy or ankylosis. The examiner noted that there was no history of recurrent subluxation, lateral instability, or tibial or fibular impairment. The Veteran reported moderate effusion in the right knee several times per month. The examination report document normal joint stability following testing. The examiner noted a meniscal tear that resulted in frequent episodes of locking and pain. The Veteran constantly used a brace for ambulation. In an August 2021 addendum opinion, a VA examiner concluded that the Veteran did not experience subluxation or patellar instability throughout the appeal period. The examiner noted that there was no evidence of a sprain, incomplete ligament tear, or complete ligament tear. Although the record reflected a knee strain, no right knee sprain was documented. Private and VA treatment records during the period on appeal reflect similar symptomatology as identified in the VA examinations of record, including pain and stiffness. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's right knee under DC 5260 prior to December 8, 2020. The medical evidence of record reflects that the Veteran demonstrated flexion to no worse than 105 degrees throughout this period. However, since December 8, 2020, the Veteran has demonstrated flexion to 30 degrees. Under DC 5260, flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Flexion has not shown to be limited to 15 degrees during the appeal period, to include during considered of a flare-up. As such, the Veteran is entitled to a separate 20 percent rating under DC 5260 since December 8, 2020, but no earlier. Regarding limitation of extension under DC 5261, the probative evidence of record does not reflect that the Veteran's extension was limited prior to April 25, 2018. Although the private DBQ reflected limitation of extension to 25 degrees, the remaining evidence of record does not indicate any limitation throughout this period. As such, it appears to be an isolated finding and is not reflective of right knee extension as a whole for this period. Thus, a higher rating under DC 5261 is not warranted prior to April 25, 2018. Since that time, the Veteran's extension has not been shown to be limited to 45 degrees. As such, the maximum 50 percent rating is not warranted. The Board recognizes that, periodically throughout the appeal period, the Veteran stated that his right knee was unstable and would give way. In this regard, the Court has held that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, while the Veteran is competent to describe feelings of instability and giving way, he is not competent as a lay person to diagnose lateral instability or recurrent subluxation, or relate such feelings to a specific diagnosis, as this requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The May 2011, July 2013, April 2018, April 2019, December 2020, and August 2021 VA examiners, who have the training to administer and interpret ligament and patellar testing, found that there was no laxity or subluxation in the right knee. Consequently, the Board affords greater probative weight to the VA examiners' conclusions than the Veteran's reports. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board notes that joint stability testing was unable to be performed in April 2018, and that slight instability was noted on the June 2013 DBQ. However, the April 2018 examiner went on to conclude that there was no history of recurrent subluxation or lateral instability, based upon an in-person interview with the Veteran. In an addendum opinion in August 2021, a VA examiner stated the objective evidence of record, to include the numerous VA examinations and stability tests performed therein, did not show any lateral instability, patellar instability, recurrent subluxation, or ligament damage, despite the Veteran's occasional reports of instability. Further, there is no findings of ligament damage, or prescription of a brace since February 2021, such that the updated regulations would apply. As the most probative evidence of record does not find any lateral instability or recurrent subluxation of the right knee and there is no evidence of ligament damage, a separate rating under DC 5257 is not warranted. The Board further notes that an additional rating under DC 5258 or DC 5259 is not warranted as limitation of motion is already evaluated under another code. As such, a separate rating under DC 5258 or 5259 would constitute impermissible pyramiding. The medical evidence is negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under DCs 5256 and 5263. The record is also silent for any complaints, treatments, or diagnoses of an impairment of the tibia or fibula. Thus, a separate rating under DC 5262 is not warranted. In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment regarding the Veteran's ability to walk for long distances, sit and stand for prolonged periods of time, and bend. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing as to warrant increased ratings for either period on appeal. Indeed, the VA examiners of record have consistently concluded that repetitive use over time would not result in additional loss of range of motion as to warrant a higher rating for the right knee. As such, the pertinent evidence of record has not revealed that flexion or extension were further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating. Therefore, the Board finds that any rating higher than the current ratings assigned for limitation of flexion and extension is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. The Veteran has generally reported flare-ups of the right knee which resulted in varying symptomatology, to include pain, limitation of motion, locking, weakness, and instability. The examiners of record obtained adequate descriptions of such circumstances, to include frequency, duration, and precipitating factors. Although testing during flare-ups was not feasible upon each examination, the VA examiners considered these lay reports in rendering their conclusions regarding the Veteran's range of motion under such circumstances. Indeed, the July 2013, April 2018, and April 2019 examiners indicated that no additional loss of range of motion would result during a flare-up. In December 2020, the examiner concluded that a flare-up would further limit flexion to 25 degrees and would not limit extension. The Board has also considered the Veteran's statements regarding increased pain following certain physical activities. Based on the VA examination reports and lay statements, the evidence does not reflect symptomatology due to flare-ups to the degree that would warrant a higher rating for either period on appeal. In summary, the Board finds the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to April 25, 2018, and in excess of 40 percent thereafter, under DC 5261 for limitation of extension. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. However, a separate 20 percent rating for limitation of flexion of the service-connected right knee disability, effective December 8, 2020, is warranted. (Continued on the next page) The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.