Citation Nr: 21014770 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-47 174 DATE: March 15, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected right knee instability is denied. Entitlement to a disability rating in excess of 10 percent prior to August 17, 2020, and in excess of 40 percent thereafter, for service-connected right knee osteoarthritis with meniscal tear and strain based on limitation of extension is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s right knee instability did not cause him to experience moderate recurrent subluxation or lateral instability. 2. Prior to August 17, 2020, the Veteran’s right knee osteoarthritis with meniscal tear and strain was not manifested by extension limited to 15 degrees. 3. From August 17, 2020, the Veteran’s right knee osteoarthritis with meniscal tear and strain was not manifested by extension limited to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation for right knee instability in excess of 10 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. 2. Prior to August 17, 2020, the criteria for entitlement to an increased evaluation for right knee osteoarthritis with meniscal tear and strain based on limitation of extension in excess of 10 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. 3. From August 17, 2020, the criteria for entitlement to an increased evaluation for right knee osteoarthritis with meniscal tear and strain based on limitation of extension in excess of 40 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1986 to June 1986. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for a right knee condition (strain, pain syndrome and arthritis). In a June 2019 rating decision effectuating a May 2019 Board grant, service connection for right knee instability was awarded with an evaluation of 10 percent effective January 7, 2017. While the Board granted the separate 10 percent rating for right knee instability, it denied the right knee osteoarthritis appeal. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s May 2019 decision and remanding the claims for additional development. The issues were returned to the Board for adjudication and in April 2020 were remanded to obtain a new VA medical opinion. The issues have now been returned to the Board for adjudication. Additionally, the Board recognizes that additional medical treatment records relevant to his claim have been added to the Veteran’s claims file since the last Supplemental Statement of the Case (SOC) issued by the RO in October 2020. However, the Veteran, through his representative, waived initial Agency of Original Jurisdiction (AOJ) review of this additional evidence in a January 2021 Appellate Brief. 38 C.F.R. § 20.1305. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Neither the Veteran nor the record raise the applicability of DCs other than those discussed herein. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board may consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board is permitted consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. As an initial matter, however, the amended version of DC 5257 is not relevant in this case because no evidence pertaining to the Veteran’s knee claims has been received after February 7, 2021. Therefore, the Board will apply the Diagnostic Code that was in place prior to February 7, 2021. Evidence Objective evidence shows that in January 2016, the Veteran had right knee pain and difficulty with standing, stair ambulation, squatting, and kneeling. His pain score was a one out of 10. Pain was described as sharp, burning, and throbbing. Active range of motion of the bilateral knees was 0 to 115. In February 2016, active range of motion of the bilateral knees was noted as 0 to 115. In March 2016, the Veteran displayed increased knee stability but continued with no change in pain level. He also noted that he had no real improvement since the last visit, but he felt he was getting stronger. He stated his knee was more irritated since beginning therapy. In April 2016, the Veteran reported that he felt fine and had been feeling the knee was getting stronger. He showed signs of improved knee stability. In another April 2016 medical treatment record the Veteran reported the pain was a zero out of 10 but had a constant achy feeling. In May 2016, the Veteran reported the pain in his right knee was a three out of 10. It was described as sharp pain. Active range of motion was noted as 0 to 115 degrees in both knees. In a June 2016 medical treatment record the Veteran reported that his knee had been doing better with the new brace and felt more stable. He stated he was in the woods recently without the brace and it caused a lot of pain because he was walking on unstable ground. The pain was described as achy. In another June 2016 medical treatment record, the Veteran noted that his right knee pain was intolerable. He rated his pain as a four out of 10. It was described as sharp and throbbing. In October 2016, while X-ray of the right knee yielded normal results, the Veteran was given a brace for his right knee. It was noted that the Veteran had full active range of motion in the bilateral knees noted as 0 to 115 degrees. A December 2016 medical treatment record noted that the Veteran had bilateral knee pain. His X-rays were marginal to normal. In an August 2017 Notice of Disagreement (NOD), the Veteran noted that his right knee gave out frequently. He also reported that the pain in his right knee was becoming disabling to the point that he had to try to find another job. In a September 2017 Form 9, the Veteran reported, “there is documented instability that is not correctable by bracing and that interferes with activities of daily living. It is also interfering with the ability to do my job. My knee gives out daily and I have pain, swelling, weakness and excess fatigue.” Upon VA examination in February 2017, the Veteran reported that he had pain when walking for too long or standing/sitting for too long, and stiffness when waking up in the morning. The condition had been progressively worsening. The Veteran complained of pain and stiffness. Treatment consisted of corticosteroid injections and analgesics. The Veteran reported flare-ups of the knee described as after moderate physical activities and he had to stop what he was doing. He did not have any functional loss or impairment. Right knee flexion was recorded as 0 to 90 degrees and extension was 90 to 0 degrees. The abnormal range of motion did not contribute to functional loss. The Veteran exhibited pain on both flexion and extension. There was no localized tenderness or pain on palpation, evidence of weight bearing, or evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. In terms of range of motion, flexion was described as 0 to 90 degrees and extension was 90 to 0 degrees. The Veteran was not examined during a flare-up. Additional contributing factors of the disability included instability of station and interference with sitting and standing. There was no history of recurrent subluxation or lateral instability in the right knee, and joint stability testing was normal. An August 2017 MRI of the right knee showed normal menisci, a grade 1 sprain of the fibular and medial collateral ligaments, chronic injury and/or partial tear ACL/PCL, small joint effusion, infrapatellar bursitis, popliteus tendinosis, and small popliteal fossa/Baker’s cyst. An August 2017 treatment record noted that the Veteran was following up for chronic bilateral knee pain. He underwent four physical therapy sessions but after work would come in exhausted from the day and his knees were sore. He found that doing some activity made his knee flare up more. He had to shift more weight onto the left knee in order to protect the right knee. His pain score was a six out of 10. A November 2017 medical treatment record noted pain in the knees with a score of five out of 10. The pain was described as sharp, aching, burning, and throbbing. Imaging done in January 2018 of the right knee showed no fracture or significant degenerative change. In a January 2018 medical treatment record, the Veteran reported that his knees sometimes felt unstable. His pain score was a four out of 10. It was described as sharp, dull, pressure, aching, stabbing, burning, and throbbing. He displayed very limited flexion in both knees. A February 2018 medical treatment record noted knee pain was a seven out of 10. It was described as sharp, stabbing, burning, and throbbing. His knee also gave out. In another February 2018 medical treatment record, the Veteran had pain rated as a five out of 10 in his knees. A March 2018 medical treatment record noted pain in both knees with a score of seven out of 10. The pain was sharp with spasms and tingling. A May 2018 orthopedics consultation noted complaints of knee pain. He reported prior cortisone joint injections in the past with minimal to no relief. He reported bilateral knee pain and instability increased with ambulating stairs, kneeling, and squatting. He rated his pain level in his right knee as a six out of 10. He took medication and used cream for pain relief. He said he had popping, swelling, and instability. He had no catching or locking. He had pain and limitation with range of motion. He could walk four blocks. He had trouble with stairs in the anterior and lateral parts of his knee, which was intermittent. On physical examination, there was no instability. Flexion/extension of the right knee was noted as 3 to 120 with right knee pain throughout passive range of motion. He had a negative anterior and posterior drawer test and a negative varus and valgus stressor test. A June 2018 medical treatment record noted his pain was a seven out of 10, and a July 2018 medical treatment record noted pain in the knee. An August 2018 medical treatment record noted that his bad knee gave out and he had to grab the car to stop from falling. He noted his knee pain was a five out of 10 and was described as aching and stabbing. It was caused by movement and exercise and activity, and was relieved by rest. A September 2018 medical treatment record noted swollen knees with a pain score of seven out of 10. It was described as sharp, aching, stabbing, and throbbing. It was caused by movement, standing, exercise and activity and was relieved by medications, ice and rest. In another September 2018 medical treatment record, the Veteran continued to have bilateral knee pain. He had another issue where he slipped getting into the car. His pain score was a seven out of 10. In a December 2018 medical treatment record, the Veteran reported bilateral knee pain. He had trouble with stairs, sleeping and getting in and out of vehicles. His right knee extension in seated was -10 and flexion in seated was 90 best observed. It was noted that the Veteran’s pain was progressively getting worse in his knees. A January 2019 medical treatment record noted right knee flexion in seated was 90 best observed. In another January 2019 medical treatment record, the Veteran noted that he had bilateral knee pain. He also used a TENS unit. His pain got worse as the days went on. He stated that he could not squat or kneel without considerable pain. His right knee pain was rated as a seven out of 10. Right knee extension in seated was -10. In March 2019, the Veteran’s knee was swollen, and his pain was rated as a six out of 10. The pain was sharp and stabbing. He had had the pain constantly for more than three months, which was caused by movement, sitting, lying down, and exercise/activity. Nothing really relieved the pain. Another March 2019 medical treatment record noted that the Veteran complained of chronic bilateral knee pain. His pain was a six out of 10. An October 2019 scan of the right knee showed stable, normal right knee radiographs, and a medical treatment record that month noted that the Veteran had a right knee contusion after falling in his driveway and striking his knee on the concrete. He rated his pain as an eight out of 10. He had guarded range of motion of the knee. Another October 2019 medical treatment record noted that the Veteran had bilateral knee pain with a score of seven out of 10, described as aching, burning, and throbbing. A December 2019 scan showed small right knee effusion, and treatment record dated that month noted the Veteran had a limping gait and noted weight bearing. All joint stability tests were performed and were normal. Extension was noted as full and flexion was limited from 0 to 115 degrees. He had pain on both extension and flexion. In a December 2019 bilateral knee MRI follow-up, the Veteran had a pain level of seven out of 10. In a May 2020 follow up visit for the knees, the Veteran had pain and crepitus. Another May 2020 visit noted achy pain in both knees. The assessment noted bilateral knee degenerative joint disease. The Board notes here that, in its January 2020 JMPR, the Court determined that the February 2017 VA examination was inadequate because the examiner declined to opine as to the Veteran’s functional loss during flare-ups of his right knee. The examiner stated that he was unable to give an opinion “without mere speculation” because he was not examined during a flare-up. Following this, the Board remanded the issues for a new examination in April 2020, which was afforded in August 2020. In the August 2020 VA examination, the Veteran reported flare-ups of the right knee described as pain, swelling, and being unstable. These occurred with activity twice per week. The pain was rated as an eight out of 10. Functional loss or impairment was described as decreased range of motion and trouble standing. Range of motion testing for the right knee showed flexion as 20 to 110 degrees and extension 110 to 20 degrees. He was unable to extend fully, had a brace and cane, and it was difficult for him to bend down. Pain was noted on exam on rest and non-movement. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as the circumference of the right knee being painful and swollen. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to the fear of pain. Pain and weakness significantly limited functional ability with repeated use over a period of time which was described in terms of range of motion as flexion 40 to 100 degrees and extension 100 to 40 degrees. Pain significantly limited functional ability with flare-ups, which was described in terms of range of motion as flexion 25 to 110 degrees and extension 110 to 25 degrees. There was no history of recurrent subluxation but there was a history of moderate lateral instability. There was a history of recurrent effusion. Joint stability testing was performed. Anterior, posterior, and medial instability were all normal. Lateral instability was marked as 1+. The Veteran used a brace and cane constantly and crutches occasionally. The Veteran was unable to work due to standing and walking requirements because of osteoarthritis of the left knee and service connected injury to the right knee. There was objective evidence of pain on passive range of motion testing. There was no objective evidence of pain when the joint was used in non-weight bearing. In the September 2020 VA examination, the Veteran reported that since his last meniscus repair in 2000 he had continued pain and episodes of falling. He now took Gabapentin, Norco, and Motrin for the pain. He used bilateral knee braces and a cane for pain control. The Veteran reported flare-ups that occurred daily. The right knee flare-ups were mild to moderate and lasted all day. They were precipitated by standing and walking and were alleviated by rest and pain management. Functional loss was described as “I cannot stand or walk for long periods, or work as a salesman because I have a hard time getting in and out of my vehicle due to pain.” Range of motion of the right knee was 90 degrees of flexion and 5 degrees of extension. The abnormality of range of motion contributed to a functional loss described as impairment with squatting, stooping and walking. Pain was noted on exam on rest and non-movement. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over a period of time. This was described in terms of range of motion as flexion 10 to 80 degrees and extension 80 to 10 degrees. Additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with standing. There was no history of recurrent subluxation or lateral instability in the right knee. Joint stability testing was performed with anterior, posterior, medial and lateral instability all recorded as normal. The Veteran used a brace and cane. The Veteran’s condition caused avoidance of work environments that required standing or walking over 30 minutes without rest, repeated squatting, stooping, climbing, exposure to uneven ground, rough terrain, or unprotected heights and was advised to avoid aggravation of pain and was at an increased risk for falls. There was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the right knee. The Veteran had pain with active range of motion to 80 degrees flexion and 10 degrees extension with weight bearing and non-weight bearing. He had pain with passive range of motion to 90 degrees flexion and 5 degrees extension with weight bearing and non-weight bearing. In a September 2020 medical treatment record, the Veteran complained of pain in his knees and rated it as a six out of 10. He was awaiting more injections. An October 2020 consultation noted lightheadedness and instability when he bent over. He had bent down a few weeks prior and became lightheaded and had some trouble with his knees which lead to him falling. He reported approximately six falls in the past two years. He noted two falls in the past two months. He noted that he could not squat down and had to bend over due to his knee problems. In an October 2020 statement, the Veteran wrote that the statement that he denied experiencing functional loss of functional impairment with repeated use over time in that he only had reported flareups as consisting of only painful motion was incorrect. He provided, I have maintained for years that my knee gives out frequently and I have fallen many times because of it. I did mention that using a brace helps reduce the amount of times that I fall but does not eliminate completely my knee giving out. I will concur I do have pain when my knee loses function it is not a one or the other situation. I also experience my knee simply giving out and having increased pain after because it happened so quickly. I am unable to continue with my current job because of my knee giving out and affecting my ability to perform my job as well as daily activities. A January 2021 medical treatment record noted that the Veteran stated the knee injections were not working and neither was his physical therapy. He was unable to lose weight because he was unable to move when the pain was bad. 1. Entitlement to an increased evaluation for right knee instability in excess of 10 percent disabling. The Veteran generally asserts that the assigned 10 percent rating under DC 5257 does not adequately reflect the severity of his right knee instability. The period on appeal begins on January 7, 2017, the date of receipt of the claim for an increased evaluation for the service-connected right knee condition. The Veteran’s right knee instability is rated under 38 C.F.R. § 4.71a, DC 5257, for other impairment of the knee. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. “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 March 12, 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. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee instability. The Board has carefully considered the Veteran’s reports about his knee being in constant pain and giving out and the limitations that it causes him. However, overall, the lay and medical evidence indicates that the right knee instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate recurrent subluxation or lateral instability to warrant the next higher, 20 percent rating. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals in this case during the multiple VA examinations during the appeal. In two of his VA examinations, including most recently in September 2020, stability testing was noted as normal. In his August 2020 VA examination, varus pressure (lateral instability) was noted as 1 plus, with the scale ranging from normal to 3 plus. As the lateral instability was not a 2 plus, this test shows a slight rather than moderate disability. As the record does not show any evidence of moderate recurrent subluxation or lateral instability, consideration of assignment of a higher evaluation based either on recurrent subluxation or lateral instability is not warranted. On the contrary, all three VA examiners found that there was no history of recurrent subluxation in the right knee. Additionally, the February 2017 and September 2020 VA examiners found that there was no history of lateral instability. The August 2020 VA examiner found that there was a history of moderate lateral instability. In this case, the medical evidence shows some instability but not moderate instability. While the Veteran reported a history of moderate lateral instability during his August 2020 VA examination, the Veteran has not shown more than 1 plus instability upon physical examination. Accordingly, as the record does not show a moderate level of lateral instability or subluxation of the right knee, the criteria for a rating in excess of 10 percent under DC 5257 are not met at any time during the course of the appeal. In summary, an increased rating greater than 10 percent is not warranted for instability of the right knee during the period on appeal. 2. Entitlement to an increased evaluation for right knee osteoarthritis with meniscal tear and strain based on limitation of extension under DC 5010-5261 in excess of 10 percent prior to August 17, 2020. The Veteran generally asserts that the assigned 10 percent rating under DCs 5010-5261 does not adequately reflect the severity of his right knee osteoarthritis. The period on appeal begins on January 7, 2017, the date the Veteran filed his claim for an increased rating for his right knee osteoarthritis. The Board may consider treatment records dated within the one-year “lookback” period before the claim was filed in January 2017 in order to assess the disability picture at the time the claim was filed. Traumatic arthritis, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate DC 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 DCs, 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, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Limitation of flexion of the leg is evaluated as follows: a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (0 percent). 38 C.F.R. § 4.71a, DC 5261. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” See 38 C.F.R. § 4.40. During this stage, the Veteran is currently rated as 10 percent disabling under 5010-5261 for right knee osteoarthritis with meniscal tear and strain based on limitation of extension. The evidence shows that prior to August 17, 2020, the Veteran’s limitation of extension met the criteria for a 10 percent rating, as his extension was only limited to 10 degrees or less. The Veteran is competent to report his perceived level of pain and functional impairment and his complaints are acknowledged. On review, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Considering the duration and severity of the vast majority of reported flare-ups prior to August 17, 2020, along with the examination findings during the February 2017 examination, the disability picture does not more nearly approximate extension limited to 15 degrees, even with pain and on flare-ups, and a rating greater than 10 percent is not warranted during this period. The Veteran underwent one VA examination during the period prior to August 17, 2020. During the February 2017 VA examination, right knee flexion was recorded as 0 to 90 degrees and extension was 90 to 0 degrees. Range of motion remained the same after performing repetitive-use testing. Range of motion testing during this stage has consistently shown active right knee extension as 10 degrees or less. There is no indication that his extension is limited to 15 degrees or more during flare-ups. Additionally, range of motion testing consistently shows flexion 90 degrees or more during this period. The Veteran’s range of motion must be limited to 15 degrees extension to warrant a rating higher than 10 percent; there is no evidence that this criterion is met for a higher rating under DC 5261 for this stage. Private treatment records reflect the following: January, February, May, and October 2016 treatment records recorded full active range of motion in the bilateral knees noted as 0 to 115 degrees. A May 2018 treatment record noted flexion/extension of the right knee was 3 to 120. In a December 2018 medical treatment record, right knee extension in seated was recorded as -10 and flexion in seated was 90 best observed. A January 2019 medical treatment record noted right knee flexion in seated was 90 best observed. In another January 2019 medical treatment record, right knee extension in seated was -10. In December 2019, extension was noted as full and flexion was limited from 0 to 115 degrees. As noted by the JMPR, the February 2017 VA examination was inadequate as it did not capture any information regarding functional loss during flare-ups. Additionally, the Veteran has not provided any lay description of the frequency of his flare-ups during this stage. Therefore, the Board will assume that the flare-ups the Veteran experienced during this period were similar to the flare-ups found in the August 2020 VA examination. In the August 2020 VA examination, during flare-ups, extension was 110 to 25 degrees, and flexion was not limited to a compensable level. The flare-ups occurred twice a week and lasted for the rest of the day. Thus, the Veteran’s flare-ups were happening about 30 percent of any given week, which is not representative of the predominant disability picture. The other 70 percent of the time, which is predominant disability picture in this case, shows that the Veteran meets the criteria for his currently assigned 10 percent rating. While twice a week the Veteran’s extension may be limited to 25 degrees, looking at the evidence in favor of the Veteran, the predominant disability picture still shows that the current 10 percent disability rating is appropriate. Even though the 25 degree extension measurement is sufficient to assign a 30 percent disability rating if the Veteran is predominantly limited, in this case the Veteran is only limited to this degree of extension 30 percent of the time, meaning that this is not the predominant disability picture. In summary, an increased rating greater than 10 percent is not warranted for the right knee osteoarthritis with meniscal tear and strain based on limitation of extension. In making this determination the Veteran’s competent complaints of pain and functional impairment are acknowledged. The record does not contain adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Mitchell, DeLuca, and 38 C.F.R. §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). 3. Entitlement to an increased evaluation for right knee osteoarthritis with meniscal tear and strain based on limitation of extension under DC 5010-5261 in excess of 40 percent from August 17, 2020. The Veteran generally asserts that the assigned 40 percent rating under Diagnostic Codes 5010-5261 does not adequately reflect the severity of his right knee osteoarthritis with meniscal tear and strain from August 17, 2020. The period on appeal begins on August 17, 2020, the effective date for the award of an increased 40 percent rating for the Veteran’s right knee osteoarthritis. The evidence shows that from August 17, 2020, the Veteran’s limitation of extension met the criteria for a 40 percent rating, as his extension was limited to no more than 30 degrees. The Veteran is competent to report his perceived level of pain and functional impairment and his complaints are acknowledged. On review, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Considering the duration and severity of the vast majority of reported flare-ups from August 17, 2020, along with the examination findings during the August 2020 and September 2020 examinations, the disability picture does not more nearly approximate extension limited to 45 degrees, even with pain and on flare-ups, and a rating greater than 40 percent is not warranted during this period. The Veteran underwent two VA examinations during the period from August 17, 2020, which the Board finds are adequate and substantially compliant with the April 2020 BVA remand as they are compliant with the requirements articulated in Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the August 2020 VA examination, right knee flexion was recorded as 20 to 110 degrees and extension was 110 to 20 degrees. Range of motion following repetitive-use testing was recorded as 40 to 100 degrees for flexion and 100 to 40 degrees for extension. It was noted that pain significantly limited functional ability with flare-ups, which was described in terms of range of motion as flexion 25 to 110 degrees and extension 110 to 25 degrees. During the September 2020 VA examination, right knee flexion was recorded as 5 to 90 degrees and extension was 90 to 5 degrees. Range of motion following repetitive-use testing was recorded as 10 to 80 degrees for flexion and 80 to 10 degrees for extension. The Veteran had pain with active and passive range of motion to no worse than 80 degrees flexion and 10 degrees extension in weight bearing and non-weight bearing. Range of motion testing during this stage has consistently shown active right knee extension as 40 degrees or less. There is no indication that his extension is limited to 45 degrees or more during flare-ups. Range of motion testing consistently shows extension 40 degrees or less and flexion 80 degrees or more during this period. The Veteran’s range of motion must be limited to 45 degrees extension to warrant a rating higher than 40 percent; there is no evidence that this criterion is met for a higher rating under DC 5261 for this stage. In summary, an increased rating greater than 40 percent is not warranted for the right knee osteoarthritis with meniscal tear and strain based on limitation of extension from August 17, 2020. In making this determination the Veteran’s competent complaints of pain and functional impairment are acknowledged. The record does not contain adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Mitchell, DeLuca, and 38 C.F.R. §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). Neither the Veteran nor the record raise the applicability of Diagnostic Codes other than those under which he is already rated at any point during the periods on appeal. As flexion has not been limited to at least 45 degrees, a compensable rating based on limitation of flexion is not warranted. 38 C.F.R. § 4.71a, DC 5260. Further, the evidence does not reflect dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, or removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms, to warrant any rating for a meniscal condition. 38 C.F.R. § 4.71a, DCs 5258, 5259. The Board is sympathetic to the Veteran’s lay statements that his right knee disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.