Citation Nr: 21011157 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-09 915 DATE: March 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine with strain prior to March 13, 2019 and in excess of 20 percent thereafter is denied. Entitlement to an initial rating in excess of 10 percent for left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for right knee disability is denied. Entitlement to a separate 10 percent rating for lateral instability in the left knee is granted. Entitlement to a separate 10 percent rating for lateral instability in the right knee is granted. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the lumbar spine with strain was not manifested by symptoms that resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees prior to March 13, 2019. 2. The preponderance of the evidence indicates that on or after March 13, 2019, the Veteran’s degenerative arthritis of the lumbar spine with strain is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. The Veteran’s left knee patellofemoral syndrome has resulted in subjective complaints of pain and objective evidence of painful motion with functional loss causing limitation of flexion to no less than 105 degrees and no limitation of extension, even in consideration of additional functional loss due to flare-ups of pain, fatigability, pain on movement, and/or weakness, or on repetitive motion. 4. The Veteran’s right knee patellofemoral syndrome has resulted in subjective complaints of pain and objective evidence of painful motion with functional loss causing limitation of flexion to no less than 95 degrees and no limitation of extension, even in consideration of additional functional loss due to flare-ups of pain, fatigability, pain on movement, and/or weakness, or on repetitive motion.. 5. Resolving doubt in the Veteran’s favor, his right knee disability has manifested with no more than slight instability. 6. Resolving doubt in the Veteran’s favor, his left knee disability has manifested with no more than slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine with strain prior to March 13, 2019 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237-5242. 2. The criteria for entitlement to an initial rating excess of 10 percent for a left knee disability have not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for entitlement to an initial rating excess of 10 percent for a right knee disability have not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 4. The criteria for a 10 percent rating, and no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5257. 5. The criteria for a 10 percent rating, and no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to May 2012. These matters come before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right and left knee patellofemoral syndrome, rated as noncompensable, and lumbar strain and assigned a 10 percent rating, effective June 1, 2012. In June 2018, the Board remanded the Veteran’s claim for additional development. The Board finds that there was substantial compliance with the June 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 2020 rating decision, the RO granted an increased 20 percent rating for degenerative arthritis of the lumbar spine with strain, effective March 13, 2019. In an August 2020 rating decision, the RO granted an increased 10 percent rating for the left and right knee patellofemoral syndrome, effective June 1, 2012. However, higher ratings are available. The Veteran is presumed to seek the maximum available benefit for a disability. As such, the claims are considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine with strain prior to March 13, 2019 and in excess of 20 percent thereafter The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine disability. The Veteran’s lumbar spine strain has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Veteran was afforded a VA examination in January 2012 at which time he was noted to have intermittent lumbar strain. The Veteran complained of a dull intermittent ache, aggravated by significant physical activity. He denied experiencing flare ups. He reported having no bowel or bladder problems in relation to the spine condition. Physical examination demonstrated normal range of motion, including extension to 0 degrees and flexion to 90 degrees, even after repetitive testing. There was no objective evidence of painful motion and no additional limitation of motion following repetitive motion. The examiner noted that there was no functional loss ot functional impairment to include that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was no evidence of radicular pain, localized tenderness, pain to palpation, muscle spasm, guarding, weakness, atrophy in the limbs, or ankylosis. Spinal contour was preserved, and musculature was normal. There was negative straight leg raising, and Lasègue’s sign was negative. Neurological examination revealed no sensory deficits and no lumbosacral motor weakness. Reflexes were normal and there were no signs of lumbar IVDS. X-rays of the lumbar spine did not reveal arthritis. At the March 2019 VA examination, the Veteran was noted to have degenerative arthritis of the spine in addition to lumbar strain and bilateral lower extremity radiculopathy. The Veteran complained of daily pain and increased pain in the lower back when bending over. Pain was described as sharp and made worse with movement. The Veteran was taking medications and heat therapy. The Veteran complained of flare-ups of significantly increased back pain at least once a month for the prior year. He reported that he is in bed an unable to work or be active for one to five days. The Veteran also reported functional loss or functional impairment of being unable to bend forward without pain, able to stand walk for 30 minutes before he has back pain and has to rest. He also reported that he has difficulty staying seating for more than 5 to 10 minutes and that he is no longer able to use a push mower, play community basketball, or work on his car. On physical examination, forward flexion was to 40 degrees, extension was to 20 degrees, right lateral flexion was to 25 degrees, left lateral flexion, left lateral rotation, and right lateral rotation were to 20 degrees. Pain was noted to cause functional loss in range of motion testing. There was no evidence of pain with weight bearing. There was tenderness on palpation of the mid to low back, but no pain or tightness/spasm of the paraspinal muscles and no loss of lordosis. There was no additional loss of function or range of motion after three repetitions. The examiner noted that functional ability was not significantly limited by pain, fatigue, weakness, lack of endurance or incoordination with repeated use over a period of time. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive motion or flareups. The examiner noted that there was no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing except as noted. Muscle strength testing and sensory examination were normal; and there was no muscle atrophy. The Veteran did have decreased reflexes and radicular pain and other signs or symptoms of radiculopathy. There Veteran did not have IVDS of the thoracolumbar spine, and he did not use any assistive devices. X-ray of the lumbar spine showed mild degenerative changes of the lower lumbar spine (L5-S1) levels. The examiner noted that passive range of motion testing was not performed as it was not feasible to do such in a safe and reasonable manner; there was no evidence of pain when the lumbar spine was in non-weight bearing position at rest. The Veteran was afforded an additional VA examination in August 2020, where the diagnoses remained degenerative arthritis of the spine, lumbar strain, and bilateral lower extremity radiculopathy of the sciatic nerve. The Veteran reported that his back pain had been getting progressively worse since the past year. He reported that he was referred for outside physical therapy for his back in 2019 and referred to acupuncture and was told that he needed chiropractic care instead. He described his back pain as stabbing, achy, and intermittent, lasting for several days at a time. Pain was triggered by movement and noted upon wakening at time. The Veteran was taking medications and heat therapy. The Veteran denied having any flare-ups but reported functional loss or functional impairment of being unable to bend over or stand for prolonged periods. He reported being able to walk for 15 minutes before he has to rest. However, he noted being able to drive a van to transport people around and that he is able to sit and drive for 30 minutes before he has to stop and stretch. On physical examination, forward flexion was to 50 degrees, extension was to 20 degrees, left lateral rotation was to 25 degrees, and left lateral flexion, right lateral flexion, and right lateral rotation were to 20 degrees. Pain was noted to cause functional loss in range of motion testing on forward and lateral flexion. There was no evidence of pain with weight bearing. The Veteran displayed muscle spasm resulting in abnormal gait or abnormal spinal contour. There was no tenderness on palpation and no guarding. There was no additional loss of function or range of motion after three repetitions. The examiner noted that functional ability was limited by pain with repeated use over a period of time leading to a decrease by five degrees in each direction. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flareups as the Veteran denied having flare ups. Muscle strength testing and sensory examination were normal; and there was no muscle atrophy. The Veteran’s reflexes were normal, however, he had radicular pain and other signs or symptoms of radiculopathy and involving both sciatic nerves. The Veteran did not have IVDS of the thoracolumbar spine, and but occasionally used a cane because of his lumbar spine disabilities. The August 2020 VA examination report reflects that the March 2019 x-ray did not show arthritis and was negative regarding the sacroiliac joints, lumbosacral spine, and thoracic spine. The examiner noted that passive range of motion testing was not performed as it was not feasible to do such in a safe and reasonable manner and that non-weight bearing and opposing joint assessments were not applicable. The Board finds that, for the period prior to March 13, 2019, the preponderance of the evidence is against a rating in excess of 10 percent for service-connected lumbar spine disability. The 2012 VA examination report showed flexion limited to 90 degrees, even after repetitive testing. The Veteran denied flare-ups and the examiner noted there was no functional loss or functional impairment to include that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Thus, even considering the Veteran’s lay reports of symptoms, the degree of limitation does not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. VA treatment reports do not reflect findings of limitation of motion less than 60 degrees. Notably, August 2012 VA treatment reports show the Veteran had full range of motion. An October 2013 VA treatment record showed the Veteran demonstrated 20 percent limited in forward flexion, which would reflect forward flexion to 72 degrees. Range of motion was reported to be normal in all other planes. Although the Veteran reported intermittent flare-ups at that time, no additional range of motion finding show flexion to be limited to less than 60 degrees. The Board also notes that VA treatment records dated in December 2014 show the Veteran complained of left sided upper quadrant pain and was noted to have muscle spasm of the back muscles. However, gait remained normal and there was no reported change in spinal contour. Regarding neurological impairment and IVDS, the lay and medical evidence of record is against a finding that the Veteran has such prior to March 13, 2019. The January 2012 VA examiner noted that there was no evidence of radiating pain on movement, there was negative straight leg raising, and Lasègue’s sign was negative. Neurological examination revealed no sensory deficits from L1 to L5 and no sensory deficits to S1. There was no lumbosacral motor weakness, reflexes were normal, and there were no signs of lumbar IVDS with chronic and permanent nerve root involvement. For the period beginning March 13, 2019, review of the record does not provide a basis for granting a rating in excess of 20 percent for the lumbar spine disability. The Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 20 percent for this disorder after March 13, 2019. The objective findings do not reveal that the limitation of flexion was ever limited to less than 30 degrees warranting a 40 percent rating. Even with consideration of other factors such as flare-ups and functional loss or impairment, including pain, the Board cannot find that the Veteran’s limitation equates to less than 30 degrees to warrant a higher rating. Moreover, there were no symptoms of ankylosis, or incapacitating episodes noted. The Board notes that the Veteran has been granted service connection for right and left lower extremity radiculopathy associated with lumbar spine disability, effective March 13, 2019. The competent evidence of record is against a finding that the Veteran has any additional neurological abnormality or any neurological abnormality that is associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbar spine strain prior to March 13, 2019 and in excess of 20 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent for left knee disability 3. Entitlement to an initial rating in excess of 10 percent for right knee disability 4. Entitlement to a separate 20 percent rating for a dislocated semilunar cartilage in the service-connected left knee is granted. 5. Entitlement to a separate 20 percent rating for a dislocated semilunar cartilage in the service-connected right knee is granted. The Veteran was assigned 10 percent ratings under DC 5260 for his right and left knee patellofemoral syndrome, effective June 1, 2012. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. Lastly, regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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. Note (2). In the June 2012 VA examination report, it was noted that the Veteran had patella femoral syndrome in both knees. At that time the Veteran complained of having bilateral knee pain when he runs. The Veteran’s range of motion was noted to be 140 degrees flexion and zero degrees extension with no objective evidence of painful motion. The Veteran performed repetitive use testing with at least three repetitions without additional functional loss or range of motion. The examiner noted that there was no functional loss and/or functional impairment of the knee and lower leg and no tenderness or pain to palpation of either knee. Additionally, there was no history of recurrent subluxation or recurrent effusion and no instability. There was also objective evidence of crepitus. The examination did not indicate malunion of the tibia and fibula. The Veteran had not had any meniscal conditions or surgical procedures. Pursuant to the Board remand, the Veteran underwent a VA examination in March 2019. At that time, he was noted to have knee instability and patellofemoral syndrome. The Veteran reported having pain centered around the patella accompanied by a sense of instability. He als had occasional swelling in both knees and some popping sounds in the right knee with position changes. He denied any falls or giving way. The Veteran also denied experiencing flare ups but reported having difficult kneeling and pain going up stairs. He also noted that he is able to walk and stand for 30 minutes before he has pain and that pain is greater in the right knee. Upon examination, the Veteran’s right knee range of motion was noted to be 95 degrees flexion and zero degrees extension with painful motion pain noted on flexion causing functional loss. The Veteran’s left knee range of motion was noted to be 105 degrees flexion and zero degrees extension with pain noted on flexion causing functional loss. There was localized tenderness or pain on palpation of the entire patella and distal patellar tendon in the right knee and mild pain around the entire patella of the left knee. There was pain with weight bearing, in non-weight bearing, and on passive range of motion testing. The Veteran performed repetitive use testing with at least three repetitions without additional functional loss or range of motion. There was no history of recurrent subluxation and no objective evidence of crepitus. The examination did not indicate malunion of the tibia and fibula. The examiner also observed the Veteran had recurrent effusion but no meniscal conditions. Joint instability was noted in both knees and the Veteran was noted to have slight lateral instability. The examiner also noted that the function impact include the Veteran is unable to kneel and has pain going up stairs and walking more than 30 minutes. The examiner also noted that the pain going up stairs is impacted by the bilateral knee instability causing pain and the Veteran to sense that the knees are unstable. The Veteran was afforded another VA examination in August 2020. The Veteran complained of sharp and achy knee pain present the majority of the time and swelling up to twice a week. The Veteran also reported that his knees give way three or four times a month. The record reflects that the Veteran’s knee symptoms are managed by medications and heat. The Veteran denied having flare ups, but he reported that, regarding the right knee, he is unable to stand for prolonged periods, but able to walk for 15 minutes and sit/drive for 30 minutes before he has to stop and stretch. No functional loss or impairment was reported regarding the left knee. Upon examination, the Veteran’s right knee range of motion was noted to be 110 degrees flexion and zero degrees extension with no objective evidence of painful motion pain noted on flexion. The Veteran’s left knee range of motion was noted to be 135 degrees flexion and zero degrees extension with objective evidence of painful motion noted on flexion which was noted to not result in/cause functional loss. There was localized tenderness or pain on palpation of the anterior knee around the distal half of the patella in both knees. Passive range of motion was reportedly the same as active range of motion findings. The Veteran performed repetitive use testing with at least three repetitions without additional functional loss or range of motion. The examiner noted that pain caused functional loss with repetitive motion, limiting flexion to 105 degrees in the right knee and 130 degrees in the left knee. There was no history of recurrent subluxation and no crepitus. The examination did not indicate malunion of the tibia and fibula. Joint instability was observed in both knees and the Veteran was noted to have slight lateral instability. The examiner observed that the Veteran had shin splints which were now resolved. The examiner also noted that the function impact included that the Veteran s unable to stand for prolonged periods but able to walk for 15 minutes and drive van to transport people to appointments. The RO issued 10 percent evaluations for “limitation of extension” in each knee pursuant to painful motion of the knees under the provisions of 38 C.F.R. § 4.59. A review of the medical and lay evidence reveals complaints of pain on motion in the knee during this period. Under the circumstances, 38 C.F.R. § 4.59 dictates that at least the minimum compensable evaluation for the joint is warranted. The Board will leave this evaluation undisturbed and address whether an evaluation in excess of 10 percent or separate evaluations are warranted for this period. Under DC 5260, the Veteran’s knee disabilities would be noncompensable because flexion is generally limited to no less than 95 degrees in either knee. Under DC 5260, evaluations of 10 percent are only warranted for flexion limited to 31-45 degrees, thus as flexion limitation has not been 45 degrees or less, 10 percent evaluation under DC 5260 has not been warranted for the appeal period. Treatment records do not show greater limitation of motion than the examination findings. Even with consideration of other factors such as flare-ups and functional loss or impairment, including less movement that normal, weakened movement, pain, and disturbance of locomotion, the Board cannot find that the Veteran’s left knee limitation of flexion equates to 30 degrees or less for the assignment of a higher rating. Similarly, a separate rating is not warranted for the left knee under Diagnostic Code 5261 based on limitation of extension. The evidence does not indicate that the Veteran’s extension has been limited to 10 degrees or more, that he had pain with extension, or that he had other symptoms that would equate to the minimum limitation of extension for a compensable rating. Notably, the 2019 VA examiner estimated range of motion during flare-up and after repetitive use over time would be at worst 105 degrees of flexion in the right knee and 130 degrees of flexion in the left knee and 0 degrees of extension in both knees. Although the 2020 VA examiner did not provide an estimate, range of motion was unchanged after repetitive use testing. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. However, separate ratings under DC 5257 are warranted in this case. Although the right and left knee disabilities have not manifested as subluxation, joint instability was observed in both the March 2019 and August 2020 VA examinations. Notably, the specific medical tests that are designed to reveal instability of the joints revealed slight instability in both knees. The Veteran also complained of his knees giving way in August 2020. While the examiner noted that the diagnosis of bilateral knee instability was separate and unrelated to the service connected patellofemoral syndrome; it was also stated that patellofemoral syndrome is commonly linked to knee instability. Although the 2020 VA examiner noted that knee instability is caused by damage to any supportive structures of the knee, such as tears of the meniscus, ligaments, or osteoarthritis, the March 2019 x-rays were negative and the 2019 and 2020 VA examination reports indicate that tears in the ligaments and meniscus and arthritis were not diagnosed. Therefore, the evidence is in equipoise as to whether the Veteran’s knee instability is related to his patellofemoral syndrome. Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, separate 10 percent ratings are warranted as the evidence reflects slight lateral instability or recurrent subluxation. Notably, the March 2019 and August 2020 VA examination reports indicate minimal (0-5mm) medial-lateral instability in both knees. As such, 10 percent ratings are warranted for slight lateral instability of each knee. However, higher ratings are not warranted as the evidence does not reflect instability described as moderate or worse. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because, although the Veteran demonstrated persistent instability, the evidence is against any findings of sprain, incomplete ligament tear, or complete ligament tear. A compensable rating is not warranted for patellar instability either. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon). Specifically, the March 2019 and August 2020 VA examination reports reflect that the March 2019 x-rays were normal without mention of changes in patellofemoral articulation and did not show any malalignment of the patella bilaterally. Nonetheless, considering both the old and new rating criteria, the Board finds that separate ratings of 10 percent are warranted for instability in each knee. The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis involving either knee. As such, those diagnostic codes are not for application. Further, in this case the evidence does not reflect and the Veteran does not allege that he has any meniscal injury or removal; therefore, separate ratings are not warranted under Diagnostic Codes 5258, or 5259. The competent and probative evidence shows the Veteran has bilateral patellofemoral syndrome with instability in each knee and the evidence is against a finding of knee flexion limited to less than 95 degrees or any limitation in extension. Thus, rating in excess of 10 percent under DC 5260 is not warranted for either knee; however, separate ratings of 10 percent is warranted under DC 5257 for each knee.   Based on the foregoing, ratings greater than 10 percent is not warranted under Diagnostic Code 5260 for either knee, and to this extent, the appeal is denied. Separate 10 percent ratings are warranted for slight lateral instability of each knee under Diagnostic Code 5257, and to this extent, the appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.