Citation Nr: 21014223 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-46 696A DATE: March 11, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for status post left knee reconstruction with degenerative joint disease with limitation of flexion is denied. Entitlement to a separate noncompensable disability rating for status post left knee reconstruction with degenerative joint disease with limitation of extension is granted, effective September 1, 2008. REMANDED Whether entitlement to a separate, compensable disability rating for left knee instability under Diagnostic Code 5257 is warranted is remanded. FINDINGS OF FACT 1. The Veteran’s left knee flexion has not been limited to 30 degrees, including on repeated use over time and on flare-ups. 2. At worst, the Veteran’s left knee extension has been limited to 5 degrees, including on repeated use over time and on flare-ups. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for status post left knee reconstruction with degenerative joint disease with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260. 2. The criteria for entitlement to a separate noncompensable disability rating, but not higher, for status post left knee reconstruction with degenerative joint disease with limitation of extension has been met, effective September 1, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to August 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision that awarded service connection for status post left knee reconstruction with degenerative joint disease and assigned the same an initial 10 percent rating under Diagnostic Code (DC) 5010-5260, effective September 1, 2008. In July 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. A September 2016 rating decision assigned a temporary 100 percent disability rating, effective May 15, 2013, for the Veteran’s status post left knee reconstruction with degenerative joint disease for surgical treatment necessitating convalescence. The 10 percent disability rating under DC 5010-5261 resumed on July 1, 2013. In April 2017, the Board awarded a separate 20 percent rating for dislocated left knee semilunar cartilage under DC 5258. A June 2017 rating decision implemented this award, effective September 1, 2008. The Veteran’s claim for an increased rating was remanded by the Board on multiple occasions for further development, most recently in May 2019. Entitlement to an initial disability rating in excess of 10 percent for status post left knee reconstruction with degenerative joint disease with limitation of flexion is denied. Entitlement to a separate, noncompensable disability rating for status post left knee reconstruction with degenerative joint disease with limitation of extension is granted. The Veteran states that his left knee disability warrants an increased disability rating. For the reasons discussed below, the Board finds that an increased disability rating is not warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.  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 has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126.    A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).   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; 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 criteria.”). The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354.    In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders, to include the criteria for rating arthritis due to trauma under Diagnostic Code (DC) 5010. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The Veteran’s status post left knee reconstruction with degenerative joint disease has been rated under Diagnostic Code 5010-5260. 38 C.F.R. §4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The old version of DC 5010 provided that arthritis due to trauma was to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. The revised DC 5010 provides that post-traumatic arthritis is to be rated as “limitation of motion, dislocation, or other specified instability under the affected joint. Effectively, the 10 percent rating under DC 5003 for noncompensable limitation of motion has been removed for traumatic arthritis. The Veteran’s current 10 percent disability rating for his left knee degenerative joint disease was awarded pursuant to 38 C.F.R. § 4.59 and Burton, 25 Vet. App. at 3-5, which together hold that joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Therefore, the Veteran was assigned the minimum 10 percent disability rating for his left knee under Diagnostic Code 5010-5260. The Board adds that for painful motion assigned pursuant to 38 C.F.R. § 4.59 and Burton, a lay person is competent to provide “objective” evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415, 424-30 (2015). The Diagnostic Codes that rate on the basis of limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 relates to flexion of the knee. 38 C.F.R. § 4.71a. A noncompensable rating under Diagnostic Code 5260 requires flexion limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Diagnostic Code 5261 relates to extension of the knee. 38 C.F.R. § 4.71a. A noncompensable rating is warranted under Diagnostic Code 5261 when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and the highest available 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71, Plate II. VA’s Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding set forth in 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Moreover, VAOPGCPREC 23-97 held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). For a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). The Veteran has been afforded several examinations to evaluate the nature and severity of his left knee disability. A March 2008 Compensation and Pension Examination General Medical Examination states that the Veteran has pain, stiffness, and limited motion of his knees. His gait is normal. There is no joint swelling, effusion, tenderness, or laxity. He does not have joint prosthesis, ankylosis, or inflammatory arthritis. The Veteran had left knee flexion to 135 degrees with pain at 125 to 135 degrees and extension to 0 degrees with pain at 135 to 125. He did not have any additional loss of range of motion after three cycles. His McMurray test was negative, and his ligaments were intact. Diagnostic study results showed prior ACL reconstruction and medial compartment narrowing bilaterally with retained hardware. An April 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire provides that the Veteran has a daily, dull achy pain in his left knee with periodic flare-ups after extensive use, including walking extended distances and ascending and descending steps and ladders. During a flare-up, the Veteran has significant difficulty walking and ascending and descending stairs and ladders. The April 2013 examination report provides that the Veteran had left knee flexion to 110 degrees with objective evidence of painful motion at 110 degrees and extension to 0 degrees or any degree of hyperextension with painful motion at that degree. The Veteran did not have additional loss of range of motion after three repetitions. The Veteran had less movement than normal, pain on movement, and disturbance of locomotion after repetitive use. The April 2013 examination report states that the Veteran has tenderness or pain to palpation for joint line or soft tissues. He has normal strength. He did not have anterior, posterior, or medial-lateral knee instability, patellar subluxation or dislocation, or any meniscal conditions or surgical procedures for a meniscal condition. The Veteran has crepitus and grinding with range of motion. He uses a brace constantly. Diagnostic studies showed degenerative or traumatic arthritis. He does not have patellar subluxation. The Veteran has decreased mobility, problems with lifting and carrying, and difficulty squatting, kneeling, and ascending and descending stairs due to his knees. A March 2015 Knee and Lower Leg Conditions Disability Benefits Questionnaire demonstrates that the Veteran has constant, gradually worsening knee pain with standing for more than one hour, ascending and descending stairs, kneeling, and squatting. He rates his knee pain as a 6 out of 10 and uses medication and ice for relief. He did not report knee flare-ups. The March 2015 examination report provides that the Veteran has left knee flexion to 140 degrees and extension to 0 degrees. He had pain on flexion and there was no evidence of pain with weight-bearing or crepitus. There was objective evidence of localized tenderness or pain on palpation of the knee. The Veteran did not have additional loss of range of motion after three repetitions. Pain, weakness, fatigability, and incoordination do not significantly limit the Veteran’s functional ability with repeated use over time. The March 2015 examination report states that the Veteran has normal strength. He does not have ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. His joint stability testing was normal. He does not have and has never had a meniscus condition. The Veteran does not use an assistive device as a normal mode of locomotion. A June 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire indicates that the Veteran had surgery on his left knee in 2013, has undergone physical therapy, received joint injections, and treated with a topical rub. He reports that his knee has worsened since his surgery as it gives way one to two times per day, locks intermittently while descending stairs, and he has constant pain rated as a 6 or 7 out of 10. He reports flare-ups as increased pain with movement and at night. The June 2016 examination report provides that the Veteran has left knee flexion to 120 degrees. The Veteran’s range of motion itself does not contribute to functional loss and he has pain on flexion. There was no evidence of pain with weight-bearing, crepitus, or objective evidence of localized tenderness or pain on palpation of the knee. The Veteran did not have additional loss of range of motion after three repetitions. Pain, weakness, fatigability, and incoordination do not significantly limit the Veteran’s functional ability with repeated use over time. The June 2016 examination report states that the Veteran has normal strength. He does not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. His joint stability testing was normal. He has a left side meniscal tear with frequent episodes of locking and joint pain. The Veteran uses a brace regularly as a normal mode of locomotion. Diagnostic studies showed degenerative or traumatic arthritis. A May 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire provides that the Veteran has knee pain and giving way with morning stiffness. He takes medication for pain and has received steroid injections. He does not report flare-ups. In terms of functional impairment, the Veteran cannot squat, run, or play golf. The May 2017 examination report provides that the Veteran has left knee flexion to 95 degrees and extension to 0 degrees. The Veteran’s range of motion itself does not contribute to functional loss and he has pain on extension. There was evidence of pain with weight-bearing. There was no objective evidence of crepitus. He has lateral joint line tenderness or pain that is mild and directly due to osteoarthritis. The Veteran did not have additional loss of range of motion after three repetitions. Pain and weakness significantly limit the Veteran’s functional ability with repeated use over time. The May 2017 examination report states that the Veteran has less movement than normal, weakened movement, instability of station, and disturbance of locomotion. The Veteran had normal strength on flexion and active movement against some resistance on extension. He does not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. His joint stability testing was normal. He does not have and has never had recurrent patellar dislocation. The May 2017 examination report demonstrates that he has a left side meniscal tear with no current symptoms. The Veteran uses a brace occasionally as a normal mode of locomotion. Diagnostic studies showed degenerative or traumatic arthritis. The Veteran does not have objective evidence of pain on non-weight-bearing and his passive range of motion is the same as his active range of motion. A June 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire states that the Veteran has flare-ups of his knee that present as buckling, giving way, swelling, and pain. He treats with medication. In terms of functional impairment, he cannot run, bike, or play golf, and he has pain during standing, sitting, walking, and weakness limits his range of motion. The June 2017 examination report provides that the Veteran has left knee flexion to 140 degrees and extension to 0 degrees. The Veteran has pain on flexion and extension, but pain does not result in or cause functional loss. There was evidence of pain with weight-bearing. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint. The Veteran did not have additional loss of range of motion after three repetitions. Pain, weakness, fatigability, and incoordination do not significantly limit the Veteran’s functional ability with repeated use over time. The June 2017 examination report states that the Veteran has active movement against some resistance on flexion and extension. He does not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran had normal joint stability testing. The Veteran does not use an assistive device as a normal mode of locomotion. There was objective evidence of pain on passive range of motion testing and no evidence of pain on non-weight-bearing testing. A January 2018 Knee and Lower Leg Conditions Disability Benefits Questionnaire demonstrates that the Veteran reports pain and difficulty accomplishing daily tasks and his employment. He states that he has instability as giving way. He describes flare-ups as his knee giving way three to four times per day and pain that increases throughout the day. Regarding functional impairment, the Veteran is unable to work due to pain and buckling of his knee, he cannot walk long distances, and is unable to walk uphill or ascend stairs because of pain. He tries to use elevators and escalators when possible. The January 2018 examination report provides that the Veteran has left knee flexion to 125 degrees and extension to 0 degrees. His range of motion does not contribute to a functional loss. The Veteran has pain on flexion and extension, but pain does not result in or cause functional loss. There was evidence of pain with weight-bearing. There was objective evidence of crepitus tenderness of his medial and lateral knee. The Veteran did not have additional loss of range of motion after three repetitions. The January 2018 examination report states that the Veteran has normal strength on flexion and extension. He does not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran had normal joint stability testing. The Veteran does not use an assistive device as a normal mode of locomotion. There was objective evidence of pain on passive range of motion testing and objective evidence of pain on non-weight-bearing testing. Lastly, the Veteran was afforded a November 2019 Knee and Lower Leg Conditions Disability Benefits Questionnaire that states that he has stiffness and pain. He has flare-ups of occasional episodes of increased swelling and pain. Concerning functional impairment, the Veteran has difficulty standing and ascending and descending stairs and hills. The November 2019 examination report provides that the Veteran has left knee flexion to 120 degrees and extension to 0 degrees. His range of motion contributes to a functional loss as he slows his walking pace and it interferes with squatting and ascending stairs. The Veteran has pain on flexion and extension. There was no evidence of pain with weight-bearing, localized tenderness or pain on palpation of the joint, or objective evidence of crepitus. The Veteran did not have additional loss of range of motion after three repetitions. The Veteran has pain that significantly limits functional ability with repeated use over time and during flare-ups. When described in terms of range of motion he has flexion to 120 degrees and extension to 0 degrees with repeated use over time. During flare-ups, the Veteran has flexion to 100 degrees and extension to 5 degrees. The November 2019 examination report states that the Veteran has active movement against some resistance on flexion and extension. He does not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran had normal joint stability testing. He does not have and has never had recurrent patellar dislocation. The Veteran does not use an assistive device as a normal mode of locomotion. There is degenerative or traumatic arthritis documented as November 2019 X-rays showed mild patellofemoral degenerative joint disease, and post-surgical changes of the distal femur. There was no objective evidence of pain on non-weight-bearing testing and his passive range of motion testing was the same as active range of motion testing. A November 2019 medical opinion provides that during the entire appellate period, the Veteran’s flexion was limited to 100 degrees and extension to 5 degrees on flare-ups. The examiner based the above medical opinion on a physical examination of the Veteran, his reports, and previous examinations. The Veteran’s VA treatment records demonstrate consistent reports of chronic left knee pain, stiffness, crepitus, swelling, laxity, and buckling, instability, grinding, and popping, with significant functional limitations as difficulty sitting, rising from a chair, ascending and descending stairs, kneeling, and squatting. The Veteran’s VA treatment records demonstrate that he underwent physical therapy, had multiple knee surgeries ,and received steroid injections. In particular, a November 2009 VA treatment record states that the Veteran has active range of motion of flexion to 130 degrees and extension to 0 degrees. A September 2010 VA treatment record indicates that the Veteran has flexion to 130 degrees and extension to 0 degrees, which was unchanged from January 2010. An April 2013 VA treatment record states that the Veteran has flexion to 130 degrees. The Veteran’s symptoms are aggravated by kneeling, ascending and descending stairs, squatting and walking and he has decreased mobility, difficulty bending, sleeping, limping, instability, nighttime awakening pain, popping, locking, stiffness, tenderness, and weakness per an October 2016 VA treatment record. The Veteran had left knee flexion to 110 degrees and his extension was within normal limits in March 2018. In July 2018, the Veteran’s left knee active range of motion was within normal limits. The Veteran’s private treatment records show that he complained of knee pain and laxity. An April 2013 private treatment record provides that he has knee pain with weight-bearing. He wears a brace when his pain level increases. His pain is primarily associated with prolonged sitting, rising from a chair, ascending stairs, kneeling, and squatting. He also feels that he has buckling, instability, grinding, and popping. He engaged in physical therapy in 2016 and his range of motion was measured as flexion to 122 degrees and extension to 0 degrees on two occasions. During the July 2012 hearing, the Veteran advised that his knees give way and he has fallen. He has knee swelling and constant pain that increases with walking, ascending and descending stairs, and his symptoms are alleviated by medication and ice as treatment. He cannot run and he reported limited motion in his knees. The Board notes the Veteran is competent to report experiencing knee symptomatology, as the onset, frequency, and duration of such symptoms as pain, weakness, stiffness, swelling, and locking are certainly capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting the above symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). At worst, the Veteran’s left knee flexion has been measured at 95 degrees which does not meet the criteria for even a noncompensable disability rating based on limitation of flexion, DC 5260. See May 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire. Further, the November 2019 retrospective medical opinion provides that on flare-ups, the Veteran has flexion to 100 degrees during the entire appellate period. While the November 2019 examiner provided a medical opinion that states his range of motion during flare-ups is greater than his lowest measured flexion, the Veteran did not report flare-ups during the May 2017 examination. At no time has the Veteran demonstrated left knee flexion limited to 30 degrees so as to warrant the assignment of a 20 percent rating under DC 5260. In light of the above medical and lay evidence, even with consideration of the factors of pain, weakness, stiffness, swelling, locking and functional loss as described above, the Board finds that the Veteran’s pain and limitation of left knee flexion at no point warrants a disability rating higher than the currently assigned 10 percent disability rating for the knee under Diagnostic Code 5260. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. Additionally, the November 2019 examination report indicates that the Veteran has extension limited to 5 degrees on flare-ups, which corresponds to a noncompensable disability rating based on limitation of extension under DC 5261. There is no evidence that the Veteran’s extension has been limited to 10 degrees so as to warrant the assignment of a 10 percent rating. Further, a compensable disability rating for limitation of extension of the left knee is not warranted on the basis of functional loss due to pain, weakness, stiffness, swelling, locking and other functional loss as described above. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. To assign a separate 10 percent rating for painful extension of the knee would amount to pyramiding, as the Veteran’s knee pain is contemplated by the 10 percent rating under DC 5260 which has been assigned pursuant to 38 C.F.R. § 4.59, as well as by the separate 20 percent rating under DC 5258 for frequent episodes of locking, pain and effusion into the joint. See 38 C.F.R. § 4.14. Therefore, a separate noncompensable disability rating, but not higher, is assigned for the Veteran’s status post left knee reconstruction with degenerative joint disease under Diagnostic Code 5261, effective September 1, 2008. The preponderance of the evidence weighs against a disability rating higher than 10 percent for the Veteran’s status post left knee reconstruction with degenerative joint disease based on limitation of flexion. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating higher than 10 percent for the Veteran’s status post left knee reconstruction with degenerative joint disease under Diagnostic Code 5260 is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55-57. Further, the evidence supports the assignment of a separate, noncompensable disability rating, but not higher, for limitation of extension of the left knee under DC 5261. REASONS FOR REMAND Whether entitlement to a separate, compensable disability rating for left knee instability under Diagnostic Code 5257 is warranted is remanded. Under Diagnostic Code 5257, which pertains to other knee impairment based upon recurrent subluxation and/or lateral instability, a 10 percent disability rating is warranted for slight disability, a 20 percent disability rating is warranted for moderate disability, and a maximum 30 percent disability rating is warranted for severe disability. 38 C.F.R. § 4.71a, DC 5257. The Board notes that VA amended the criteria for rating the knee under Diagnostic Code 5257 effective from February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the new rating criteria, a 30 percent rating is assigned for recurrent subluxation or lateral instability, 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. A 20 percent rating is assigned for one of the following: (a) 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 (b) 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 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. For patellar instability, 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. A 20 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 one of the following: a brace, cane, or walker. A 10 percent rating is assigned 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. Here, an MRI of the Veteran’s left knee in November 2012 showed that the anterior cruciate ligament (ACL) graft remained intact, but the posterior cruciate ligament (PCL), while intact, had some slight buckling. On VA examination in April 2013 the Veteran reported that he used a brace constantly. A private treatment record dated in April 2013 shows that he reported that he wore a brace when his pain level increased. He felt that he had buckling and instability of the knee. The June 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire indicates that he reported that his left knee gives way one to two times per day and that he used a brace regularly as a normal mode of locomotion. On VA examination in May 2017, the Veteran reported giving way and that he used a brace occasionally as a normal mode of locomotion. The January 2018 Knee and Lower Leg Conditions Disability Benefits Questionnaire demonstrates that he reported left knee instability and giving way, with his knee giving way three to four times per day. As the evidence of record shows that the Veteran underwent repair of his left knee ACL and uses a brace, an additional VA examination is required to obtain sufficient information to rate the Veteran’s knee in accordance with the new rating criteria. Accordingly, the case is REMANDED for the following action: 1. Add to the claims file any outstanding VA treatment records dated since June 2020. 2. Arrange for a VA examination of the Veteran's left knee. In the examination report, the examiner must address the following: Whether the left knee is manifested by recurrent subluxation or lateral instability with: (i) 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; or (ii) 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. (Continued on the next page)   Whether the left knee is manifested by patellar instability with (i) 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; or (ii) 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 providing this information, the examiner should consider the November 2012 MRI of the Veteran’s left knee showing that the anterior cruciate ligament (ACL) graft remained intact, but the posterior cruciate ligament (PCL), while intact, had some slight buckling; as well as the Veteran’s reports of left knee instability and buckling and the use of a brace. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate 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.