Citation Nr: 21074940 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-06 630 DATE: December 16, 2021 ORDER Entitlement to a rating in excess of 20 percent for status post tibial plateau stress fracture with shin splints, leg length alignment asymmetry, patellar tendonitis, and medio-lateral instability of the left knee is denied. Entitlement to a rating in excess of 10 percent for status post tibial plateau stress fracture with shin splints and arthralgia of the left knee is denied. Entitlement to a separate 10 percent, but no higher, rating from October 6, 2016 for painful limitation of extension of the left knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for status post tibial plateau stress fracture with shin splints, leg length alignment asymmetry, and patellar tendonitis of the right knee is denied. Entitlement to a separate 10 percent, but no higher, rating from October 6, 2016 for painful limitation of extension of the right knee is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected bilateral knee disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left knee disability has been manifested by moderate instability without evidence of an unrepaired or failed repair of a complete ligament tear or a diagnosis of a condition involving the patellofemoral complex. 2. Throughout the appeal period, the Veteran's left knee disability has been manifested by flexion at most limited to 80 degrees with pain, with no more than moderate knee disability, and with no evidence of surgery for shin splints. 3. Throughout the appeal period, the Veteran's right knee disability has been manifested by flexion at most limited to 90 degrees with pain, with no more than slight knee disability, and no evidence of surgery for shin splints. 4. Prior to October 6, 2016, the Veteran's bilateral knee disabilities were manifested by full extension without pain. 5. From October 6, 2016, the Veteran's bilateral knee disabilities have been manifested by full extension with pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee status post tibial plateau stress fracture with shin splints, leg length alignment asymmetry, patellar tendonitis, and medio-lateral instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5257, 5262. 2. The criteria for a rating in excess of 10 percent for left knee status post tibial plateau stress fracture with shin splints, leg length alignment asymmetry, patellar tendonitis, and medio-lateral instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. From October 6, 2016, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5261. 4. The criteria for a rating in excess of 10 percent for right knee status post tibial plateau stress fracture with shin splints, leg length alignment asymmetry, and patellar tendonitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5262. 5. From October 6, 2016, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 2004 to August 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2019 when the Board remanded it for further development. The Board notes that the January 2019 decision did not address the Veteran's left knee disability rating under hyphenated Diagnostic Code 5262-5257 for lateral instability; however, the Veteran's left knee disability rating under Diagnostic Code Diagnostic Code 5262-5257 is part and parcel of the Veteran's March 2016 appeal seeking increased ratings for his bilateral knee disabilities. Therefore, all applicable knee ratings throughout the entirety of the appeal period are currently before the Board. The issues are characterized as such on the title page. In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) continued the Veteran's ratings for his bilateral knee disabilities listed on the title page of this decision. Furthermore, the AOJ denied entitlement to TDIU in the December 2020 rating decision. The record indicates the Veteran filed a claim for TDIU in February 2020 based in part on his service-connected leg disabilities. Thus, the issue of entitlement to TDIU is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Increased Rating Bilateral Knee Disabilities The Veteran and his representative generally contend the Veteran is entitled to increased ratings for his bilateral knee disabilities. See Informal Hearing Presentation, dated August 26, 2020. The AOJ has assigned the Veteran's left knee disabilities a 20 percent rating throughout the appeal period under hyphenated Diagnostic Code 5262-5257 and a 10 percent rating throughout the appeal period under Diagnostic Code 5260. The AOJ has assigned the Veteran's right knee disability a 10 percent rating prior to March 16, 2016 under hyphenated Diagnostic Code 5260-5262 and a 10 percent rating from March 16, 2016 under Diagnostic Code 5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's left knee instability is rated, by analogy, under the criteria for tibia and fibula impairment (Diagnostic Code 5262) and lateral instability (Diagnostic Code 5257). The hyphenated diagnostic code for the Veteran's right knee disability prior to March 16, 2016 indicates that the disability is rated, by analogy, under the criteria for limitation of flexion (Diagnostic Code 5260) and tibia and fibula impairment (Diagnostic Code 5262). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5262, for tibia and fibula impairment, a 10 percent rating is warranted for malunion with a slight ankle disability, a 20 percent rating is warranted for malunion with a moderate ankle disability, and a 30 percent rating is warranted for malunion with a marked ankle disability. Evidence of nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). The rating criteria for subluxation and lateral instability under Diagnostic Code 5257 were revised during the course of the Veteran's appeal, effective February 7, 2021. 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). Under the amended rating criteria for patellar instability under Diagnostic Code 5257, 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. 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 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. 38 C.F.R. § 4.71a, Amended Diagnostic Code 5257). Under the amended rating criteria for recurrent subluxation or lateral instability under Diagnostic Code 5257, 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. A 20 percent rating is warranted for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, 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 30 percent rating is warranted 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. Id. Furthermore, the Board notes that the rating criteria for tibia/fibula impairment under Diagnostic Code 5262 were revised during the course of the Veteran's appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Nonunion of the tibia and fibula, with loose motion and requiring a brace, warrants a 40 percent rating. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. 38 C.F.R. § 4.71a, Amended Diagnostic Code 5262. Diagnostic Code 5262 also provides ratings for medial tibial stress syndrome (MTSS) as of February 7, 2021, also known as "shin splints." Shin splints with treatment less than 12 consecutive months, on or both lower extremities, warrants a noncompensable rating. 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, warrants a 10 percent rating. 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, warrants a 20 percent rating. 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, warrants a maximum 30 percent rating. Id. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Additionally, VA's Office of General Counsel has determined that the amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. Consideration of other diagnostic codes for rating a knee disability (5256, 5258, 5259, 5263) is inappropriate in this case as the Veteran's bilateral knee disabilities do not include the pathology required in the criteria for those diagnostic codes (ankylosis, semilunar cartilage impairment, or genu recurvatum). 38 C.F.R. § 4.71a. Here, the Board will discuss the factual evidence as it relates to the Veteran's bilateral knee disabilities prior to addressing the assigned ratings. The Veteran attended a VA examination in June 2016 for an evaluation of his knees. The Veteran had flexion to 110 degrees with pain bilaterally and full extension without pain bilaterally. The examiner noted that range of motion itself contributed to functional loss bilaterally. The Veteran had pain with weight bearing bilaterally. The Veteran had localized tenderness or pain to palpation to the lateral region of the patella bilaterally. With repetitive use and repeated use, the examiner noted that pain, fatigue, and weakness caused functional loss bilaterally. The examiner noted that range of motion with repetitive use and repeated use would be unchanged bilaterally. The Board acknowledges that the examiner noted that pain, fatigue, and weakness caused functional loss during flare-ups and described the range of motion as flexion to zero degrees and full extension bilaterally. However, here, the Board notes this evidence is inconsistent with all the medical and lay evidence in the record as there is no indication in the record that the Veteran is unable to flex either knee during flare-ups. Additional factors contributing to disability bilaterally were disturbance of motion and interference with sitting standing. The Veteran had 4/5 strength throughout the knee bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation, lateral instability, or effusion bilaterally. See August 2016 addendum VA examination report. The examiner noted that the Veteran did not have a meniscal condition in either knee. The examiner noted the Veteran had a history of a stress fracture in the left leg, which caused chronic tibial discomfort. The Veteran was not noted to use any assistive devices. In terms of the functional impact of the Veteran's knee disabilities, the examiner noted that his bilateral knee disabilities imposed functional impact in the form of he is unable to run, walking is limited to 20 minutes, pain with weightlifting, weightlifting is limited to 20 pounds, sitting causes stiffness, and standing too long causes pain. The Veteran reported flare-ups in the form of achy pain at a 6 out of 10 and that Advil helps with flare-ups. The Veteran attended an additional VA examination October 6, 2016 for an evaluation of his knees. The Veteran had flexion to 130 degrees with pain bilaterally and full extension with pain bilaterally. The examiner noted that range of motion itself contributed to functional loss bilaterally in the form of decreased range of motion affects ambulation and use of the lower extremities. The Veteran had pain with weight bearing bilaterally. The Veteran had localized tenderness or pain to palpation to the medial and lateral bilaterally of moderate severity. The Veteran was able to perform repetitive use without additional functional loss or range of motion bilaterally. The examiner stated that he was unable to state whether flare-ups caused additional functional loss bilaterally because there was insufficient evidence to provide a reliable prediction withing a reasonable degree of medical certainty as to potential loss of range of motion due to flare-ups. Additional factors contributing to disability bilaterally were activities involving weight bearing causes knee pain and decreased range of motion affects ambulation and use of the lower extremities. The Veteran had normal strength throughout the knee bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation, lateral instability, or effusion bilaterally. The examiner noted that the Veteran did not have a meniscal condition in either knee. The examiner noted the Veteran had shin splints bilaterally that did not affect range of motion of either knee or ankle. Furthermore, the examiner noted the Veteran had bilateral shin pain with ambulation. The examiner noted there was no measurable leg length discrepancy. The Veteran reported using a cane on an occasional basis during a flare of any body part. In terms of the functional impact of the Veteran's knee disabilities, the examiner noted that his bilateral knee disabilities imposed functional impact in the form of activities involving weight bearing and knee range of motion cause bilateral knee pain. Furthermore, ambulation causes bilateral knee pain. The Veteran reported flare-ups consisting of intermittent episodes of increased bilateral knee pain. The Veteran attended two additional VA examinations in 2020 that comply with the remand directives in the January 2019 Board remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At a January 2020 VA examination, the Veteran had flexion to 120 degrees with pain bilaterally and full extension without pain bilaterally. The examiner noted that range of motion itself contributed to functional loss bilaterally in the form of decreased range of motion affects ambulation and use of the lower extremities. Passive range of motion testing caused no pain bilaterally. The Veteran had pain with weight bearing bilaterally and no pain with non-weight bearing. The Veteran had localized tenderness or pain to palpation to the medial and lateral bilaterally of moderate severity. The Veteran was able to perform repetitive use without additional functional loss or range of motion bilaterally. The examiner stated that pain significantly limited functional ability with repetitive use and during flare-ups. However, the examiner stated that after a review of the record and an examination and interview of the Veteran, he was unable to offer additional losses of function or motion. No additional factors contributed to disability bilaterally. The Veteran had normal strength throughout the knee bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation, lateral instability, or effusion bilaterally. The examiner noted that the Veteran did not have a meniscal condition in either knee. The examiner noted the Veteran had shin splints bilaterally that did not affect range of motion of either knee or ankle. Furthermore, the examiner noted the Veteran had bilateral shin pain with weight bearing activities. The Veteran was not noted to use any assistive devices. In terms of the functional impact of the Veteran's knee disabilities, the examiner noted that his bilateral knee disabilities imposed functional impact in the form of activities involving weight bearing and knee range of motion cause bilateral knee pain. Furthermore, ambulation causes bilateral knee pain. The Veteran reported constant pain in his knees and shins with weight bearing activities. He stated the pain waxes and wanes depending on the activity. Furthermore, he reported he cannot run due to the pain. In addition, he reported flare-ups with weight bearing activities, which last during the activity and then subsides to his baseline pain of 3 out of 10. He stated the flare-ups limit his ability to perform any weight bearing activity for more than one to two hours. At a November 2020 VA examination, the Veteran had left knee flexion to 115 degrees with pain and full extension without pain. On the right, the Veteran had flexion to 125 degrees with pain and full extension without pain. The examiner noted that range of motion itself did not contribute to functional loss. Passive range of motion testing caused pain bilaterally. The Veteran had pain with weight bearing bilaterally and no pain with non-weight bearing. The Veteran had localized tenderness or pain to palpation above and below the patella, lateral, and medial aspects of patella and behind the knee bilaterally. The Veteran was able to perform repetitive use without additional functional loss or range of motion bilaterally. The examiner stated that pain significantly limited functional ability with repetitive use and during flare-ups. The examiner estimated that with repetitive use, the Veteran's left knee flexion would be to 115 degrees and right knee flexion would be to 125 degrees. During flare-ups, the left knee flexion would be to 80 degrees and his right knee flexion would be to 90 degrees. The examiner estimated the Veteran would have full extension with repetitive use and during flare-ups. Additional factors contributing to disability were swelling bilaterally. The Veteran had normal strength throughout the knee bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation bilaterally, no right knee lateral instability, and no effusion bilaterally. The examiner noted the Veteran had moderate lateral instability on the left. The examiner noted that the Veteran did not have a meniscal condition in either knee. The examiner noted the Veteran had shin splints bilaterally that affected range of motion of his knees bilaterally but not his ankles. Furthermore, the examiner noted the Veteran had achy pain down anterior and posterior calf, and the muscles feel hard. The examiner also noted the Veteran had a stress fracture in the left leg that did not affect range of motion of the ankle. The examiner indicated the Veteran had worsening pain around the patella with popping and cracking with pain on the left. In addition, the examiner noted the Veteran's right leg was one centimeter shorter than the left leg, and the leg length discrepancy impacts gait and overall weight bearing. Furthermore, the leg length discrepancy can contribute to knee tendonitis and shin splints. The Veteran was not noted to use any assistive devices. The examiner noted the Veteran's bilateral knee disabilities imposed no functional impact. The Veteran reported worsening pain around the patella with popping and cracking with pain. He reported taking Advil for pain once every day. He reported functional limitations of being unable to run, pain down shin splints limits running, walking more than 20 to 30 minutes aggravates the pain, and he is unable to squat without significant pain. He reported having flare-ups two to three times a week, especially in cold weather and when getting out of bed. The Veteran stated the flare-ups are of mild severity, they last about a week, and are precipitated by walking and prolonged standing. In addition, he reported the flare-ups are alleviated by cold, heat, and ibuprofen. Regarding the Veteran's 20 percent rating for his left knee disability under Diagnostic Code 5262-5257, the medical evidence of record illustrates that there has been no point during the appeal period where the Veteran has had severe recurrent subluxation or lateral instability, the requirement for a higher 30 percent rating under the former rating criteria of Diagnostic Code 5257. The June 2016, October 2016, and January 2020 VA examinations reflect no recurrent subluxation or lateral instability and at worse 4/5 strength. The November 2020 VA examination report reflects moderate lateral instability. Furthermore, the joint stability testing at the November 2020 VA examination was all normal. The Board notes the Veteran is competent to report symptoms of instability, as the manifestations are readily observable to even a lay person. See English v. Wilkie, 30 Vet. App. 347 (2018). However, the Veteran has not reported instability at any point during the appeal period. As there is no evidence of severe lateral instability or recurrent subluxation throughout the appeal period, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257 former rating criteria. Regarding whether a higher rating is warranted under Diagnostic Code 5262 at any point during the appeal period, there is no evidence of marked knee disability, the requirement for a higher 30 percent rating under the former rating criteria of Diagnostic Code 5262. The Board notes the Veteran reported chronic tibial discomfort at the June 2016 VA examination and worsening pain around the patella with popping and cracking with pain at the November 2020 VA examination. However, as is noted above, the Veteran has had at worse 4/5 strength in the left knee and at most moderate lateral instability. Thus, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5262 former rating criteria. As is noted above, VA amended the rating criteria for Diagnostic Code 5257, effective February 7, 2021. However, even when considering the amended rating criteria, a rating in excess of 20 percent for the Veteran's left knee instability under Diagnostic Code 5257 is not warranted under the amended rating criteria from February 7, 2021. Regarding the Veteran's 20 percent rating for his left knee lateral instability, the amended rating criteria require either an unrepaired or failed repair of a complete ligament tear or a diagnosis of a condition involving the patellofemoral complex. The medical evidence does not reflect, and the Veteran has not contended, that, he has had a complete ligament tear or a condition involving the patellofemoral complex, including during the applicable period since February 7, 2021, the date the amended rating criteria took effect. Thus, a higher rating under the amended rating criteria is not warranted for the Veteran's left knee. Regarding a potential higher rating under the amended rating criteria for Diagnostic Code 5262, effective February 7, 2021, there is no evidence the Veteran's shin splints have been unresponsive to surgery, part of the requirement for a higher 30 percent rating under the amended Diagnostic Code 5262. Regarding the Veteran's 10 percent rating for his left knee disability under Diagnostic Code 5260, there is no competent and credible evidence that the Veteran has had flexion in his left knee that has been less than 45 degrees, even when considering additional factors of pain, fatigue, weakness, lack of endurance, and swelling. The medical evidence addressed above illustrates that the Veteran's left knee flexion was at most limited to 80 degrees. See November 2020 VA examination report. As such, the Board concludes that even when considering additional contributing factors of pain, fatigue, weakness, lack of endurance, and swelling, the evidence does not more nearly approximate flexion limited to less than 45 degrees. Therefore, a preponderance of the evidence is against a rating in excess of 10 percent based on limitation of flexion at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Regarding the Veteran's 10 percent rating for his right knee disability under Diagnostic Code 5260-5262 prior to March 16, 2016 and under Diagnostic Code 5260 from March 16, 2016, there is no competent and credible evidence that the Veteran has had flexion in his right knee that has been less than 45 degrees, even when considering additional factors of pain, fatigue, weakness, lack of endurance, and swelling. The medical evidence addressed above illustrates that the Veteran's right knee flexion was at most limited to 90 degrees. See November 2020 VA examination report. As such, the Board concludes that even when considering additional contributing factors of pain, fatigue, weakness, lack of endurance, and swelling, the evidence does not more nearly approximate flexion limited to less than 45 degrees. Therefore, a preponderance of the evidence is against a rating in excess of 10 percent based on limitation of flexion at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Regarding whether a higher rating is warranted under Diagnostic Code 5262 at any point during the appeal period, there is no evidence of moderate knee disability, the requirement for a higher 20 percent rating under the former rating criteria of Diagnostic Code 5262. The Board notes the Veteran reported shin pain with ambulating activities at the October 2016 and January 2020 VA examinations and achy pain down the anterior and posterior calf at the November 2020 VA examination. Notably, there is no evidence of lateral instability or recurrent subluxation of the right knee. In addition, aside from the June 2016 VA examination showing 4/5 strength in the right knee, all other VA examination in the appeal period show normal strength. Thus, a rating in excess of 10 percent is not warranted as the evidence does not show moderate right knee disability, even when considering flare-ups. 38 C.F.R. § 4.71a, Diagnostic Code 5262 former rating criteria. Regarding a potential higher rating under the amended rating criteria for Diagnostic Code 5262, effective February 7, 2021, there is no evidence the Veteran's shin splints have been unresponsive to surgery, part of the requirement for a higher 20 percent rating under the amended Diagnostic Code 5262. The Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of extension of his left and right knees under Diagnostic Code 5261. The Board concludes the evidence more nearly approximates a finding that the Veteran is entitled to a 10 percent, but no higher, rating for an actually painful left and right knee joint on extension from October 6, 2016 under Diagnostic Code 5261 given the evidence of an actually painful left and right knee joint on extension. The October 2016 VA examination report reflects that the Veteran had full extension with pain in the left and right knees. The Board acknowledges that the January 2020 and November 2020 VA examination reports reflect that the Veteran had full extension without pain. However, the November 2020 examiner noted the Veteran had objective evidence of pain on passive range of motion testing of the left and right knees. The Board notes that the examination report does not indicate whether the pain was with flexion, extension, or both. In addition, the Veteran has consistently reported since the October 2016 that activities involving range of motion causes bilateral knee pain. The Court has held that 38 C.F.R. § 4.59 does not require "objective" evidence of painful motion and can be satisfied with lay and other non-medical evidence. Petitti, 27 Vet. App. at 429. The Board finds the Veteran's reports of painful motion to be competent and credible as he is competent as a layperson to report what he personally observes. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, his statements regarding painful motion have been consistent since the October 6, 2016 VA examination. Therefore, based on the competent and credible evidence showing pain with extension bilaterally, the Board concludes a 10 percent, but no higher, rating for an actually painful left and right knee joint on extension beginning October 6, 2016 is warranted. A rating in excess of 10 percent is not warranted at any point because the Veteran has had no point where his extension in either knee has been limited to more than 10 degrees, even when considering additional factors of pain, fatigue, and weakness. Therefore, the evidence warrants a separate 10 percent, but no higher, rating for each knee based on painful extension pursuant to 38 C.F.R. § 4.59 beginning October 6, 2016. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A compensable rating prior to October 6, 2016 under Diagnostic Code 5261 is not warranted for either knee as the June 2016 VA examination report reflects no pain with extension. Furthermore, the Veteran's reports of achy pain of both knees during flare-ups prior to October 6, 2016 do not specifically illustrate the Veteran had an actually painful left and right knee joint on extension or with activities involving knee extension. In evaluating the Veteran's increased rating claims for his left and right knees, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board recognizes the Veteran's statements that his bilateral knee conditions cause pain and swelling. Furthermore, he reported his bilateral knee disabilities cause difficulties with weightlifting, weight bearing activities, sitting, and prolonged standing. Furthermore, he indicated he is unable to run. However, even when considering the reported functional loss, the Veteran's disability picture for his left knee did not more nearly approximate flexion limited to 30 degrees throughout the appeal period, extension limited to 15 degrees from October 6, 2016, severe lateral instability throughout the appeal period, or marked knee disability throughout the appeal period. Regarding his right knee, even when considering the reported functional loss, the Veteran's disability picture did not more nearly approximate flexion limited to 30 degrees throughout the appeal period, or extension limited to 15 degrees from October 6, 2016. The Board has considered whether the Veteran is entitled to a separate rating for his right knee under Diagnostic Code 5257 for recurrent subluxation or lateral instability. However, the Veteran has not alleged that he has subluxation or instability in his right knee at any point during the appeal period. Furthermore, the medical evidence of record throughout the appeal period shows no subluxation or instability. Thus, a separate rating under Diagnostic Code 5257 is not warranted for the right knee at any point during the appeal period. Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. The Board initially notes that both of the Veteran's knees have been awarded service connection and that there is therefore no opposite undamaged joint to test. In this case, the June 2016 and October 2016 VA examinations were conducted prior to Correia and Sharp and provide only partial information as described above. The June 2016 and October 2016 VA examinations measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. The Board also notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). With regards to flare-ups, the Veteran endorsed experiencing such flare-ups at his June 2016 and October 2016 VA examinations. Sharp v. Shulkin, supra. His reports of additional functional loss associated with the flare-ups as described above. To the extent that the Veteran and contends that his left and right knees are more severe than currently evaluated during any period on appeal, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his knee disabilities are of sufficient severity to warrant higher evaluations under VA's rating schedule because such an opinion requires medical expertise (training in evaluating musculoskeletal impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board has considered whether a staged rating or a further staged rating under Hart, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds the criteria for a rating in excess of 20 percent for the Veteran's left knee disability under Diagnostic Code 5262-5260 have not been met. The Board finds that the criteria for a rating in excess of 10 percent for the Veteran's left knee disability under Diagnostic Code 5260 have not been met. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee under Diagnostic Code 5261 beginning October 6, 2016. The Veteran is not entitled to any further separate ratings for the left knee. Regarding the right knee, the Board finds the criteria for a rating in excess of 10 percent for the Veteran's right knee disability under Diagnostic Code 5260-5262 prior to March 16, 2016 and under Diagnostic Code 5260 from March 16, 2016 have not been met. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee under Diagnostic Code 5261 beginning October 6, 2020. The Veteran is not entitled to any further separate ratings for the right knee. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board finds that the claim must be remanded for additional development as there has not been substantial compliance with the mandates of the January 2019 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In January 2019, the Board remanded the claim for a VA examination and opinion where the Board specifically requested the VA examiner to provide an opinion as to whether the Veteran's acquired psychiatric disorder is directly related to his service and as to whether his bilateral knee disabilities have caused or aggravated any diagnosed acquired psychiatric disorder. A VA examiner provided an opinion as to direct service connection in January 2020; however, the examiner provided no opinion as to secondary service connection. As the January 2020 opinion does not substantially comply with the January 2019 remand order, the claim must be remanded for an opinion as to whether the Veteran's bilateral knee disabilities have caused or aggravated any diagnosed acquired psychiatric disorder. See Stegall, 11 Vet. App. at 271. 2. Entitlement to TDIU is remanded. Because a decision on the remanded claim for service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records from March 2021 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's acquired psychiatric disorder claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder (diagnosed as adjustment disorder with mixed anxiety and depressed mood and unspecified schizophrenia spectrum and other psychotic disorder) is related or attributable to his military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder (diagnosed as adjustment disorder with mixed anxiety and depressed mood and unspecified schizophrenia spectrum and other psychotic disorder) is caused by his service-connected bilateral knee disabilities? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder (diagnosed as adjustment disorder with mixed anxiety and depressed mood and unspecified schizophrenia spectrum and other psychotic disorder) is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected bilateral knee disabilities? If the Veteran's acquired psychiatric disorder has been aggravated by his service-connected bilateral knee disabilities, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development above, undertake any development necessary to adjudicate the claim for TDIU. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.