Citation Nr: 21071687 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 13-16 281 DATE: December 1, 2021 ORDER An initial rating in excess of 40 percent for a back disorder is denied. An initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. An initial rating of 40 percent, but not higher, for left lower extremity radiculopathy is granted. Prior to August 26, 2019, an initial rating in excess of 10 percent for a right knee disorder is denied. From August 26, 2019, but not earlier, a 50 percent rating for a right knee disorder is granted. From August 26, 2019, a separate 10 percent rating for right knee instability is granted. FINDINGS OF FACT 1. The Veteran's back disorder has been manifested by severe painful motion with forward flexion approximating 30 degrees or less; ankylosis has not been shown; and intervertebral discs syndrome (IVDS) requiring bed rest of at least 6 weeks within any 12 months during the rating period has also not been shown. 2. The Veteran's right lower extremity radiculopathy approximates no worse than moderate incomplete paralysis. 3. The Veteran's left lower extremity radiculopathy most nearly approximates no worse than moderately severe incomplete paralysis. 4. Prior to August 26, 2019, the Veteran's right knee disorder was not manifested by limitation of flexion to 30 degrees or limitation of extension to 15 degrees, even with consideration of painful motion. 5. From August 26, 2019, the Veteran's right knee disability approximates limitation of extension to 45 degrees. 6. From August 26, 2019, the Veteran experienced slight right knee instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for a low back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5240. 2. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for an initial 40 percent rating, but not higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 4. Prior to August 26, 2019, the criteria for an initial rating in excess of 10 percent for a right knee disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DCs 5260, 5261. 5. From August 26, 2019, but not earlier, the criteria for a rating of 50 percent for a right knee disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5261. 6. From August 26, 2019, the criteria for a separate 10 percent rating for slight instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to August 1970. The case is on appeal from a March 2017 rating decision. In August 2019, the Veteran testified at a Board hearing. Most recently, in a December 2019 decision, the Board granted a total disability rating based on individual unemployability (TDIU) with Dependents' Educational Assistance (DEA), effective June 1, 2014. At that time, the Board remanded the remaining claims for additional development. While the case was in remand status, in an August 2021 rating decision, the RO increased the right knee rating to 50 percent effective April 27, 2021. The matter remains in appellate status as the maximum ratings have not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the August 2021 rating decision, the RO also granted service connection and separate 20 percent ratings for right and left lower extremity radiculopathy associated with the Veteran's service-connected back disorder. The United States Court of Appeals for Veterans Claims (Court) has recently held that the Board has jurisdiction to address ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) when those issues were part of the Veteran's claim for an increased back rating. Chavis v. McDonough, 34 Vet. App. 1 (2021). Here, the Veteran appealed the initial back rating assigned by the RO and following the December 2019 Board remand, the RO granted the lower extremity radiculopathy ratings in the August 2021 rating decision. Therefore, the Board has jurisdiction to address the newly awarded ratings for right and left lower extremity radiculopathy as well as any other neurological impairments. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his spouse, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes VA revised the rating criteria for evaluating musculoskeletal conditions, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020, as corrected). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to the rating criteria evaluating disorders of the spine have no impact on the Veteran's back rating. However, DC 5257, which contemplates knee impairment with recurrent subluxation or lateral instability, was amended by the new regulations and is addressed below. 1. An initial rating in excess of 40 percent for a back disorder. Specific Legal Criteria The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS)Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Facts Following the Veteran's August 2010 claim, his VA treatment records support that he experienced ongoing back pain, including in a record dated February 2011. The Veteran was afforded a March 2017 VA examination in which he was diagnosed with degenerative arthritis of the spine, multiple arthralgia, undetermined etiology, and thoracolumbar degenerative disc disease. The Veteran reported no flare-ups, but stated he experiences pain with bending, prolonged standing and walking. He indicated that he avoids lifting any weight as it can strain his back and that his wife sometimes has to "pop" his back into place. Range of motion testing revealed forward flexion reduced to 65 degrees and extension to 20 degrees with pain during testing which caused functional loss. There was evidence of pain with weight bearing and tenderness on palpation of the midback. After repetitive testing, the examiner indicated pain, weakness, fatigability or incoordination did not significantly limit functional ability. The examiner reported the Veteran did not have radiculopathy and no ankylosis was indicated. IVDS was also not found. The examiner stated the Veteran requires the occasional use of a cane due to moderate to severe back pain. The Veteran submitted a January 2019 substantive appeal in which he indicated he is entitled to an increased rating for his service-connected back disability. Thereafter, the Veteran testified at the August 2019 Board hearing that his back disorder has worsened. He stated if he bends over, his back hurts and occasionally pops out of place. The Veteran indicated that the pain in his back approximates 8 or 9 out of 10. The claim came before the Board in December 2019 and was remanded for further development, including a VA examination to determine the severity of the disorder. The Veteran was afforded an April 2021 VA examination in which the examiner indicated he has severe pain in his lower back, shooting pain down the left leg and decreased range of motion. The Veteran reported flare-ups, including left side numbness and nausea every 2 to 3 months. He stated he has been hospitalized twice due to flare-ups. Functional loss was noted as an inability to lift, push or pull and difficulty turning. Range of motion testing revealed forward flexion reduced to 45 degrees and extension to 20 degrees with pain during testing which causes functional loss. Repetitive testing further reduced the Veteran's forward flexion to 40 degrees and his extension to 5 degrees. With flare-ups, the examiner stated the Veteran's forward flexion is reduced to 40 degrees and his extension to 5 degrees. The examiner indicated there was no pain with weight-bearing and nonweight-bearing, but there was pain on active and passive motion. She reported the Veteran has guarding resulting in abnormal gait or abnormal spinal contour. Additionally, the examiner opined the Veteran has bilateral lower extremity radiculopathy, which will be addressed below. She found no ankylosis of the spine. The examiner indicated he has IVDS but with no signs and symptoms requiring bed rest prescribed by a physician within the past 12 months. She stated the Veteran has ankylosing spondylitis; however, it is not of the entire spine. She noted due to the Veteran's back disorder, as well as his lower extremity radiculopathy, he experiences pain with prolonged sitting or standing which limits his ability to perform tasks or push and pull. Analysis After a careful review of the evidence, the Board determines an increased rating for the back disability is not warranted. The Board finds despite reduced range of motion, the record does not show, and the Veteran does not contend, that he experienced unfavorable ankylosis, or even functional ankylosis, of the entire thoracolumbar spine at any point. In addition, an increased rating in excess of 40 percent based on IVDS is not warranted, as the Veteran has not had incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. The Board notes that the evidence during the appeal period, including two VA examination reports, supports severe back pain which caused the Veteran trouble with walking, sitting, standing, pushing and pulling. The Veteran also reported that his back "pops" out and the VA examination reports showed the Veteran's flexion approximated limitation to 30 degrees or less, when factoring in his pain and other symptoms. However, there is no basis to assign a disability rating higher than 40 percent for the service-connected back disability. The March 2017 and April 2021 VA examiners reported no ankylosis was found and such was not found in the VA treatment records. The Board finds without a showing of ankylosis or functional ankylosis, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted. See 38 C.F.R. § 4.71a, DC 5240, see also Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). In sum, the evidence supports that an increased initial rating in excess of 40 percent for the Veteran's back disorder is not warranted. The preponderance of the evidence is against the claim and an initial rating in excess of 40 percent for the low back disorder is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An initial rating in excess of 20 percent for right lower extremity radiculopathy. 3. An initial rating in excess of 20 percent for left lower extremity radiculopathy. Specific Legal Criteria Radiculopathy of the lower extremity is evaluated under DC 8520, which pertains to the sciatic nerve. The DC provides for a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Analysis As noted above, in the August 2021 rating decision, the RO granted service connection and separate 20 percent ratings for right and left lower extremity radiculopathy associated with the Veteran's back disorder. The Board finds it has jurisdiction to address the ratings for right and left lower extremity radiculopathy, without requiring a separate NOD. See Chavis, 34 Vet. App. at 1. The Veteran asserts that the severe pain in his back radiates to his lower extremities. In the December 2019 remand, the Board required a VA examination to determine the severity of the Veteran's back disorder, and also whether any radiculopathy and/or neuropathy is present and related to the back disability. The Veteran was afforded an April 2021 VA examination in which the examiner diagnosed him with bilateral lower extremity radiculopathy. The examiner indicated the Veteran has moderate constant pain in his bilateral lower extremities. She stated he has mild paresthesias and/or dysesthesias in the bilateral lower extremities. She further noted severe left lower extremity numbness. Reflex testing showed the right knee was hypoactive and the right ankle reflex was absent. The examiner noted the presence of moderate incomplete paralysis in the bilateral lower extremities. The Board determines the Veteran's left lower extremity radiculopathy more closely approximates moderately severe incomplete paralysis and an increased initial rating to 40 percent is warranted. See 38 C.F.R. § 4.7. However, his right lower extremity radiculopathy was manifested by no worse than moderate symptoms and a rating in excess of 20 percent is not supported. With regard to the Veteran's left lower extremity radiculopathy, as discussed above, the April 2021 examiner indicated the Veteran has moderate constant pain and mild paresthesias, along with severe left lower extremity numbness. Based on these examination findings, the Board finds the Veteran's left lower extremity radiculopathy approximates moderately severe symptoms. The Board acknowledges that the examiner opined the Veteran has moderate incomplete paralysis in the bilateral lower extremities. However, when resolving reasonable doubt in the Veteran's favor, the Board finds his left lower extremity radiculopathy approximates moderately severe incomplete paralysis and an increased initial rating to 40 percent. See 38 C.F.R. § 4.3. While an increased rating to 40 percent is appropriate, a further increase in excess of 40 percent is not supported, as the evidence does not show severe impairment or marked muscular atrophy. With regard to the Veteran's right lower extremity radiculopathy, his symptoms suggest no worse than moderate severity. The April 2021 examiner indicated the Veteran has moderate constant pain and mild paresthesias. She noted reflex testing which showed the right knee was hypoactive and the right ankle reflex was absent. Despite these symptoms, the evidence supports the presence of no worse than moderate right lower extremity radiculopathy and an initial rating in excess of 20 percent is not warranted for right lower extremity radiculopathy. In sum, after resolving reasonable doubt in the Veteran's favor, the evidence of record shows his left lower extremity radiculopathy has manifested moderately severe incomplete paralysis and an increased initial rating to 40 percent is warranted. The Veteran's right lower extremity radiculopathy, however, has manifested moderate incomplete paralysis and an initial rating in excess of 20 percent is not supported. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 4. An initial rating in excess of 10 percent for a right knee disorder prior to April 27, 2021; and in excess of 50 percent thereafter. Specific Legal Criteria Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees. A 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Limitation of motion may also be rated under DC 5261 for limitation of extension of the knee. Limitation of extension of a leg to 5 degrees warrants a zero percent rating. A 10 percent rating requires that extension be limited to 10 degrees. A 20 percent rating requires that extension be limited to 15 degrees. A 30 percent rating requires that extension be limited to 20 degrees. A 40 percent rating requires that extension be limited to 30 degrees. A 50 percent rating requires that extension be limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Facts The Veteran's right knee claim was initially granted in the March 2017 rating decision and a 10 percent rating was assigned under DC 5260. Thereafter, in the August 2021 rating decision, the RO increased the Veteran's right knee rating to 50 percent effective April 27, 2021, under DC 5261. Thus, the Board will review the evidence during the appeal period for increases, including the effective date for the 50 percent rating. The Veteran's VA treatment records reflect ongoing complaints of right knee pain, including in a February 2011 VA treatment record. He was afforded a March 2017 VA examination in which he reported right knee pain, especially with prolonged walking. No flare-ups were reported. Range of motion testing showed flexion to 130 degrees and extension to zero degrees. Pain with weight bearing was indicated, as well as tenderness on palpation of the medial joint line. No ankylosis was found. Additionally, joint stability testing was performed, and no right knee instability was found. During the August 2019 Board hearing, the Veteran indicated that his right knee disability had worsened. He stated that he obtained a brace because his knee pops out and pops back in. He stated he wraps the brace around his right knee to hold it in place and prevent it from constantly popping out. He reported he requires the brace at all times. The Veteran indicated if he turns wrong on his knee, it will pop out of place and he has to work it back into place which is extremely painful. Further, the Veteran's spouse stated when his right knee pops out, it sounds like a broken stick. Following the December 2019 Board remand, the Veteran underwent an April 2021 VA examination in which he reported flare-ups, to include increased pain when he is standing for prolonged periods, as well as locking or giving out of the right knee. He stated these flare-ups occur 2 to 3 times per week and can last for one day. He reported his right knee hurts all day long and he experiences continued popping. However, the examiner indicated the Veteran does not have a history of instability or recurrent subluxation. Range of motion testing revealed flexion limited to 135 degrees with extension to 75 degrees. The examiner stated the Veteran cannot fully flex or extend his right knee which severely impairs his gate and limits his ability to walk, requiring the use of a cane. After repetition, there was no additional loss of function or range of motion. With flare-ups, the examiner indicated the Veteran's flexion was limited to 135 degrees with extension limited to 80 degrees. The examiner additionally noted there is no recurrent patellar instability and no ankylosis was found. Analysis The Board determines an increased rating to 50 percent for the right knee disability is warranted from August 26, 2019, the date of the Board hearing. In this regard, the Veteran testified at the hearing that his right knee symptoms were worsening. Thereafter, following the Board remand in December 2019, he was afforded an April 2021 VA examination which confirmed worsening symptoms and led the RO to award an increased rating to 50 percent. Thus, the Board finds the increased right knee rating to 50 percent is supported from an earlier date, August 26, 2019. With regard to the initial right knee rating of 10 percent prior to August 26, 2019, the Board finds an increased rating is not warranted. For the initial rating period, prior to August 26, 2019, the Veteran's right knee disorder exhibited pain but did not approximate flexion limited to 30 degrees or extension limited to 15 degrees. The VA treatment records reflect ongoing complaints of right knee pain. Further, the March 2017 VA examination included range of motion testing which showed flexion limited to 130 degrees and extension to zero degrees. Therefore, while the Veteran experienced pain prior to August 26, 2019, the Board determines an initial rating in excess of 10 percent is not warranted for the right knee disorder based on limitation of motion. From the August 2019 Board hearing, the Board finds the Veteran's right knee disorder approximated extension limited 45 degrees and thus, an increased rating to 50 percent is warranted from August 26, 2019. At the August 2019 Board hearing, the Veteran indicated that his right knee disability had worsened. He stated his right knee pops out frequently and he must pop it back in, causing severe pain. He reported he requires a brace at all times to prevent continuous giving out. Following the December 2019 Board remand, the Veteran underwent the April 2021 VA examination in which more severe right knee symptoms and limitations were noted. Therefore, while the RO increased the Veteran's rating to 50 percent effective April 27, 2021, the Board notes the earliest date that an increased level of disability can be ascertained is August 26, 2019, when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Swain, 27 Vet. App. at 219. In sum, the Veteran's right knee disorder does not warrant an initial rating in excess of 10 percent prior to August 26, 2019. However, from August 26, 2019, but not earlier, an increased rating for the right knee disorder to 50 percent is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board notes the 50 percent rating is the maximum knee rating based on limitation of motion, and absent ankylosis. 5. A separate 10 percent rating for right knee instability. Specific Legal Criteria Prior to February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC 5257. For claims filed on or after February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling 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 or bracing for ambulation. A 20 percent rating is warranted for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or brace for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and a brace for ambulation. 38 C.F.R. § 4.71a, DC 5257. Analysis During the March 2017 VA knee examination, the Veteran reported right knee pain, especially with prolonged walking. Pain with weight bearing was indicated, as well as tenderness on palpation of the medial joint line. As noted, joint stability testing was performed by the examiner and no right knee instability was found. During the August 2019 Board hearing, the Veteran indicated that his right knee disability had worsened, including continuing popping in and out. He stated he requires a brace to hold his right knee in place and prevent it from constantly popping out. The Veteran indicated if he turns wrong on his knee, it will pop out of place and he has to work it back into place which is extremely painful. The Veteran's spouse stated when his right knee pops out, it sounds like he broke a stick. The Board notes during the April 2021 VA examination, the Veteran reported locking and giving out of his right knee. He further reported continuing popping; however, the examiner opined the Veteran does not have a history of instability or recurrent subluxation. The examiner also indicated there is no recurrent patellar instability. (Continued on the next page) The Board finds from August 26, 2019, a separate 10 percent rating is warranted for slight right knee instability, when reasonable doubt is resolved in the Veteran's favor. The Veteran testified in August 2019 that he experiences continued popping and giving out of his right knee which causes significant pain. Further, he reported to the April 2021 examiner that his knee locks and gives out. The Board acknowledges the April 2021 VA examiner's opinion which indicated the Veteran does not have a history of instability or recurrent subluxation and there is no recurrent patellar instability. However, when weighing the medical records with the lay statements, the Board finds that slight right knee instability is more closely approximated than no instability, from August 26, 2019. See 38 C.F.R. § 4.7; English v. Wilkie, 30 Vet. App. 347 (2018). In sum, from August 26, 2019, the Board concludes that a separate rating of 10 percent for instability of the right knee is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.