Citation Nr: 21013813 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-28 279 DATE: March 10, 2021 ORDER Service connection for left foot plantar fasciitis is granted. Service connection for a liver disorder, to include hepatitis, is denied. A rating in excess of 10 percent for right knee patella femoral pain syndrome with painful limitation of motion is denied. A rating in excess of 10 percent for residuals of a left knee strain with painful limitation of motion is denied. A separate rating of 10 percent, but no higher, for slight instability of the right knee is granted. A separate rating of 10 percent, but no higher, for slight instability of the left knee is granted. For the appeal period prior to May 22, 2013, a 30 percent rating, but no higher, for migraine headaches is granted. For the appeal period beginning May 22, 2013, a rating in excess of 30 percent for migraine headaches is denied. REMANDED Entitlement to service connection for a bilateral ankle disorder, to include as secondary to the service-connected bilateral foot disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s left foot disorder, diagnosed as plantar fasciitis, first manifested in service and was incurred in service. 2. The Veteran has not been diagnosed with a liver disability, to include hepatitis, during the appeal period. 3. For the entire rating period on appeal, the Veteran’s right and left knee disabilities have been manifested by no worse than 115 degrees flexion and normal extension, to include during flare-ups and repeated use over time. 4. For the entire rating period on appeal, the Veteran’s right and left knee disabilities have been manifested by symptoms indicative of “slight” instability. 5. Beginning February 7, 2021, the Veteran’s right and left knee disabilities were not manifested by patellar instability or an unrepaired or failed repair of a complete ligament tear causing persistent instability with the prescribed use of both an assistive device and bracing for ambulation. 6. Throughout the entire rating period on appeal, both prior to and after May 22, 2013, the Veteran’s headache disability was manifested by characteristic prostrating attacks occurring more than once a month; however, his headaches have not been productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left foot plantar fasciitis are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2020). 2. The criteria to establish service connection for a liver disorder, to include hepatitis, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2020). 3. The criteria for a rating in excess of 10 percent for painful limitation of motion of the right knee are not met. 38 C.F.R. §§ 1155, 5107, 7104 (2017); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2020). 4. The criteria for a rating in excess of 10 percent for painful limitation of motion of the left knee are not met. 38 C.F.R. §§ 1155, 5107, 7104 (2017); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2020). 5. For the entire rating period on appeal, the criteria for a 10 percent rating, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5257 (2020); 85 Fed. Reg. 76457 (Feb 7, 2021). 6. For the entire rating period on appeal, the criteria for a 10 percent rating, but no higher, for left knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5257 (2020); 85 Fed. Reg. 76457 (Feb 7, 2021). 7. For the appeal period prior to May 22, 2013, the criteria for a 30 percent disability rating, but no higher, for migraine headaches are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2020). 8. Beginning May 22, 2013, the criteria for a rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to April 1994. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned in a June 2018 video-conference Board hearing, the transcript of which is included in the record. The issues on appeal were previously remanded by the Board in September 2018 for further development. The September 2018 Board decision also dismissed the claim for entitlement to a total rating based upon individual unemployability. As such, this issue will not be addressed by the Board at this time. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Left Foot Disorder The Veteran seeks service connection for a left foot disorder. He has already been awarded service connection for right foot plantar fasciitis with pes planus. The Veteran’s claim for service connection for a bilateral ankle disability is addressed in the remand section below. As it pertains to the Veteran’s left foot, the evidence includes a March 2020 VA foot examination. At that time, the examiner indicated that the Veteran had been diagnosed with bilateral plantar fascitis and pes planus in 1989 and 1994 (i. e., during active duty), respectively. In a corresponding medical opinion, the examiner again indicated that the Veteran had been diagnosed with plantar fascitis in June 1989. This condition was noted to be chronic; as such, the examiner opined that it was related to service. The Board notes that a June 1989 service record assessed the Veteran has having plantar fasciitis, but did not specify if this pertained solely to one foot. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left foot plantar fasciitis first manifested in service and was incurred in service. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for left foot plantar fasciitis is warranted. Liver Disorder The Veteran generally maintains that he has a liver disorder, claimed as hepatitis. Upon review of the medical evidence of record, the Board finds that the Veteran has not been diagnosed with a liver disorder at any point during the appeal period. VA treatment records are absent for any diagnoses or treatment for a liver disorder, to include hepatitis. The Veteran was also afforded a VA examination in March 2020. At that time, the examiner noted that diagnostic testing (to include hepatic function panel) had been reviewed. It was further indicated that the Veteran did not have a diagnosed liver disorder and that his hepatitis C viral titers (conducted in February 2020) were within normal levels. The Board notes that private treatment records in August 2005 included a right upper quadrant abdominal ultrasound. The report indicated that the Veteran had a history of elevated LFTs, bilirubin levels, and fever. The ultrasound report indicated that the “liver demonstrates coarsened echotexture consistent with hepatocellular disease.” However, no specific diagnosis was provided. Moreover, these findings are outside of the current appeal period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim). The Board recognizes the Veteran’s contention that he has a liver disorder. However, the Veteran is not shown to possess the requisite medical training to render a competent diagnosis for his claimed liver disorder because such diagnosis requires specific medical knowledge and training. See Rucker v. Brown, 10 Vet. App. 67 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018), wherein the United States Court of Appeals for the Federal Circuit (Court) held that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity. The Board notes that the Veteran has not provided any lay or medical evidence describing his symptoms as it specifically related to a purported liver disorder, functional impairment, or reflecting a clinical diagnosis pertaining to a liver disorder. In other words, and even assuming that the Veteran does experience some symptoms associated with a liver disorder, the evidence of record does not show that the Veteran’s symptoms amount to a functional impairment of earning capacity. The Veteran has not met his burden of establishing the existence of a current disability as it pertains to his claimed liver disorder. “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, service connection for this claimed disorder is denied. Disability Ratings Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned . 38 C.F.R. § 4.7. The 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 has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine Headaches The Veteran is in receipt of a noncompensable disability rating for migraine headaches under Diagnostic Code 8100 for the appeal period prior to May 22, 2013. He is in receipt of a 30 percent rating beginning May 22, 2013. Under Diagnostic Code 8100, headaches with less frequent attacks are rated noncompensable, headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling. Headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a , Diagnostic Code 8100. Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical dictionary, 32nd Edition (2012), p. 1531, “prostration” is defined as “extreme exhaustion or powerlessness.” Upon review of the evidence of record, the Board finds that a 30 percent rating is warranted for the appeal period prior to May 22, 2013. The Board further finds that a rating in excess of 30 percent (for the entire rating period on appeal) is not more nearly approximated. The Board notes that the Veteran was assigned a noncompensable evaluation for his headache disability for the appeal period prior to May 22, 2013 because he had failed to report to a scheduled VA examination. Notably, however, the Veteran has indicated that he was incarcerated at the time and was unable to attend the evaluation. The earliest VA examination of record addressing the Veteran’s migraines is dated May 22, 2013. At that time, the Veteran reported that he had constant headaches affecting both temples, and his pain radiated to the back of the head. The Veteran indicated that, although his headaches were constant, he was generally able to function with the headaches. Symptoms were noted to include pulsating head pain and pain on both sides of the head. The Veteran was not found to have very frequent prostrating headaches. During a November 2017 VA examination report, the Veteran noted that his headaches were mild to severe in intensity and were associated with photophobia, phonophobia, irritability, and nausea. He indicated that he had daily headaches and frequent, prostrating headaches 4 times a week. The Veteran was noted to use medication to treat his condition. The examiner found that the Veteran had characteristic prostrating attacks of migraine pain, but not very prostrating and prolonged attacks productive of severe economic inadaptability. During the June 2018 Board hearing, the Veteran testified that he had headaches “every day.” He further noted that he had blacked out his room as excessive light made his headaches worse. The Veteran also noted that he had “super headaches” about 4 times a week and took “a handful” of Advil to alleviate his symptoms. He also reported missing some work due to his headaches. The Veteran was afforded another VA examination in March 2020. At that time, the examiner indicated that the Veteran had very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Specifically, the examiner noted that, due to his migraines, the Veteran was limited when working jobs that required the use of a computer and would need accommodation for extended breaks. The Board finds that the Veteran’s migraine headache disability warrants a 30 percent rating, but no higher, for the entire rating period on appeal. The Veteran has reported having constant, daily headaches ranging from mild to severe. Further, the Veteran’s symptoms (including pain, photophobia, phonophobia, irritability, and nausea) more nearly approximate characteristic prostrating attacks as contemplated by the 30 percent rating criteria. That notwithstanding, the Board finds that the Veteran’s migraine headache disability is not productive of severe economic inadaptability as required for the next higher 50 percent rating. The Board acknowledges that the March 2020 VA examiner indicated that the Veteran very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability; however, it was noted that the Veteran’s headaches would limit him when working jobs that required the use of a computer. In this regard, the evidence shows that the Veteran is working a construction job at night. See March 2020 VA psychiatric examination. In other words, there is no indication that the Veteran’s headaches have caused severe economic inadaptability. During the March 2020 VA psychiatric examination report, the Veteran stated that he worked nights so “I don’t’ have to deal with people.” The evidence does not show that special accommodations have been made to the Veteran’s job or tasks as a result of his migraine headache disability. In sum, and although the Veteran has reported missing some work due to his headache disability, the evidence does not suggest that severe economic inadaptability (solely due to his migraine headaches disability) is present. As such, the Board fins that a rating of 30 percent for migraine headaches is warranted for the appeal period prior to May 22, 2013. The Board further finds that a rating in excess of 30 percent for the entire rating period on appeal is denied. Right and Left Knee Disabilities The Veteran is currently in receipt of a 10 percent ratings for the right and left knee disabilities due to painful limitation of motion. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran’s appeal, both the former and revised criteria will be considered in evaluating the Veteran’s service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, 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 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 and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Upon review of the evidence of record, the Board finds that ratings in excess of 10 percent for painful limitation of motion for both the right and left knee are not warranted. A review of the medical evidence of record shows that the Veteran’s bilateral knee flexion has been limited to no worse than 115 degrees with normal extension. See March 2020 VA examination (flexion limited to 115 following repeated use over time and during flare-ups, extension was to 0 degrees bilaterally); see October 2017 VA examination (right knee flexion limited to 140 degrees and left knee flexion limited to 120 degrees, extension was to 0 degrees bilaterally); see May 2013 VA examination (flexion limited to 140 degrees and extension was to 0 degrees bilaterally); see May 2017 VA examination (flexion limited to 75 degrees and extension was to 0 degrees). As noted above, the March 2020 VA examiner specifically considered the Veteran’s limitation of motion following repeated use over time and during flare-ups. Again, the examiner indicated that the Veteran’s right and left knee were limited to 115 degrees in flexion and 0 degrees in extension, to include after repetitive use testing and during flare-ups. The Board concludes that the Veteran’s right and left knee disabilities do not meet or more nearly approximate the criteria for a rating in excess of 10 percent for the entire rating period on appeal due to painful limitation of motion. The Veteran has never demonstrated the functional equivalent of flexion limited to 30 degrees in order to warrant a higher disability rating under DC 5260. Throughout the appeal period, he maintained flexion to, at worst, to 115 degrees bilaterally, to include during a flare-up and after repetitive use testing. As such, ratings in excess of 10 percent under Diagnostic Code 5260 are not warranted. Moreover, the VA examination reports listed above showed normal range of motion testing in extension throughout the rating period. As noted above, even with consideration of repeated use over time or during a flare-up, the Veteran was able to fully extend the knee at the time of the 2020 evaluation. A separate rating for limitation of extension is not warranted as the Veteran does not have compensable limitation of extension in the right or left knee. The Board recognizes the Veteran’s reports of continued bilateral knee pain as explained in the VA examination reports discussed above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking or standing). However, even considering additional limitation of motion or function of the knees due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the knee disabilities more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in the right or left knee. Moreover, there is no evidence of any knee ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fibula in the right or left knee to support higher or separate ratings under DCs 5256, 5258, or 5262. Next, the Board finds that, affording the Veteran the benefit of the doubt, his right and left knee instability warrants separate 10 percent ratings, but no higher, for the entire rating period on appeal. Although stability testing during the VA knee examinations noted above found no objective instability in either knee, the Veteran has reported that his knees give out. See October 2017 VA knee examination report (where the Veteran indicated that his knees occasionally “give way.”). The Veteran has also been noted to use braces to assist with his knee disabilities. See March 2020 VA knee examination (examiner indicated that the Veteran regularly used knee braces for the right and left knee). Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported bilaterally knee instability, the Board finds that separate 10 percent ratings are warranted for slight lateral instability of the right and left knee. Next, the Board finds that the Veteran’s left knee instability is not more accurately described as moderate under the earlier diagnostic code effective prior to February 7, 2021. The medical records do not specifically describe instability of the knee joints and the VA examination reports during the current appeal period found that the right left knee joint was normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under the current diagnostic code. Effective February 7, 2021, Diagnostic Code 527 provides for a 20 percent rating for a knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, 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 20 percent rating may also be assigned for patellar instability when there is 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 In this case, the Board finds that ratings in excess of 10 percent for instability of the right and left knee disabilities are not warranted under the amended rating criteria effective February 7, 2021. In this regard, the Veteran has not been shown to have “persistent instability” as contemplated under the 20 percent rating criteria. As noted by the Veteran, he has described that his knees give way only occasionally. See October 2017 VA examination. Moreover, the Veteran had not been found to have recurrent instability after surgical repair of a diagnosed patellofemoral condition. As such, ratings in excess of 10 percent under both the earlier and revised DC 5257 are not warranted for the appeal period beginning February 7, 2021. REASONS FOR REMAND Bilateral Ankle Disorder The Veteran has been diagnosed with right ankle arthritis and left ankle recurrent lateral collateral ligament sprain. Pursuant to the decision herein, the Veteran is now service connected for both his right and left foot disabilities. The evidence suggests that the Veteran’s ankle symptoms may be associated with his plantar fasciitis. See e. g., September 2020 VA medical opinion (noting that right ankle pain in service (1989) was secondary to plantar fasciitis). As such, the Board finds that a new examination and medical opinion is warranted to address whether the Veteran’s right and left ankle disorders are either caused or aggravated by his now service-connected bilateral foot disabilities. The matters are REMANDED for the following actions: 1. Schedule a VA ankle examination. The examiner must review all pertinent documents in the record. The examiner is asked to: (a.) Provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s right and left ankle disabilities are either caused or aggravated by a service-connected disability, to include plantar fasciitis. (b.) *The examiner is reminded that a recent precedent case clarified that secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c.) All opinions should be accompanied by a clear rationale. 2. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.