Citation Nr: 21015029 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-28 890 DATE: March 16, 2021 ORDER Entitlement to an increased, 30 disability evaluation for allergic sinusitis, for the rating period prior to November 15, 2019, is granted. Entitlement to an increased disability evaluation for allergic sinusitis, rated as 50 percent disability for the rating period since November 15, 2019, is denied. Entitlement to an increased, 40 percent disability evaluation for thoracolumbar spine strain with degenerative disc disease, for the rating period prior to November 15, 2019, is granted. Entitlement to an increased disability evaluation for thoracolumbar spine strain with degenerative disc disease, rated as 40 percent disabling for the rating period since November 15, 2019, is denied. Entitlement to an increased, 20 percent disability evaluation for left knee patellar tendonitis, for the rating period prior to November 15, 2019, is granted. Entitlement to an increased disability evaluation for left knee patellar tendonitis, rated as 20 percent disabling for the rating period since November 15, 2019, is denied. Entitlement to an increased, 20 percent disability evaluation for right knee patellar tendonitis is granted. Entitlement to a separate 20 percent evaluation for left knee meniscal tear with frequent episodes of locking and effusion into the joint is granted. Entitlement to a separate 20 percent evaluation for right knee meniscal tear with frequent episodes of locking and effusion into the joint is granted. FINDINGS OF FACT 1. For the rating period prior to November 15, 2019, the Veteran’s allergic sinusitis was productive of more than six non-incapacitating episodes per year of sinusitis, characterized by headaches, pain, and purulent discharge. 2. For the rating period since November 15, 2019, the Veteran’s allergic sinusitis is manifested by near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, with purulent discharge and crusting. 3. For the entire rating period on appeal, the Veteran’s thoracolumbar spine strain with degenerative disc disease is manifested by pain, with muscle spasm and guarding productive of an abnormal gait. Forward flexion is limited to no more than 40 degrees, without ankylosis. 4. For the entire rating period on appeal, the Veteran’s left knee patellar tendonitis is manifested by painful limitation of flexion with flexion limited to 20 degrees during flare-ups; the Veteran is separately evaluated for instability. 5. For the entire rating period on appeal, the Veteran’s right knee patellar tendonitis is manifested by painful limitation of flexion with flexion limited to 35 degrees during flare-ups; the Veteran is separately evaluated for instability. 6. The Veteran has right and left knee meniscal tears productive of frequent episodes of locking and effusion of the knee joints. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent for allergic sinusitis, for the rating period prior to November 15, 2019, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2020). 2. The criteria for a disability rating in excess of 50 percent for allergic sinusitis for the rating period since November 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.97, Diagnostic Code 6513 (2020). 3. The criteria for an initial 40 percent disability evaluation, but no higher, for thoracolumbar spine strain with degenerative disc disease for the rating period prior to November 15, 2019, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2020). 4. The criteria for a disability evaluation in excess of 40 percent for thoracolumbar spine strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2020). 5. The criteria for an initial 20 percent disability rating for left knee patellar tendonitis, for the rating period prior to November 15, 2019, have been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 6. The criteria for a disability rating in excess of 20 percent for left knee patellar tendonitis have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 7. The criteria for an initial 20 percent disability rating for right knee patellar tendonitis have been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 8. The criteria for a separate 20 percent evaluation for left knee meniscal tear with frequent episodes of locking and effusion have been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 4.1, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2020). 9. The criteria for a separate 20 percent evaluation for right knee meniscal tear with frequent episodes of locking and effusion have been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 4.1, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1982 to February 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The August 2012 rating decision, in pertinent part, granted the Veteran’s claims of entitlement to service connection for thoracolumbar spine strain, with degenerative disc disease, left knee patellar tendonitis, right knee patellar tendonitis, and allergic sinusitis. A 20 percent disability evaluation was assigned for the Veteran’s thoracolumbar spine strain with degenerative disc disease, and noncompensable disability evaluations were assigned for his left knee patellar tendonitis, right knee patellar tendonitis, and allergic sinusitis; an effective date of March 1, 2012 was assigned for each grant of service connection. In an April 2018 rating decision, the Veteran was granted an increased, 10 percent disability rating, per knee, for his service-connected right knee patellar tendonitis and left knee patellar tendonitis, effective March 1, 2012. At that time, the Veteran’s 20 percent disability evaluation for his service-connected thoracolumbar spine strain was restored, effective January 6, 2015. In an April 2020 rating decision, the Veteran was granted an increased, 20 percent disability evaluation for his service-connected left knee patellar tendonitis, an increased, 50 percent disability evaluation for his service-connected allergic sinusitis, and an increased, 40 percent disability evaluation for his thoracolumbar spine strain with degenerative disc disease. An effective date of November 15, 2019 was assigned. As the Veteran has not been granted the maximum benefit allowed for his service-connected disabilities on appeal, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased disability evaluation for allergic sinusitis, initially rated as noncompensable. 2. Entitlement to an increased disability evaluation for allergic sinusitis, rated as 50 percent disabling for the rating period since November 15, 2019. The Veteran’s sinusitis is rated as noncompensable for the rating period prior to November 15, 2019 and 50 percent disabling for the rating period thereafter pursuant to 38 C.F.R. § 4.97, DC 6513, applicable to chronic maxillary sinusitis. Under the General Rating Formula for Sinusitis, a noncompensable disability evaluation is assigned for sinusitis that is detectable by x-ray only. A 10 percent rating is warranted for 1 or 2 incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires 3 or more incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or more than 6 non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Based on the above and remaining evidence of record, the Board finds that the Veteran’s allergic sinusitis warrants a 30 percent rating for the rating period prior to November 15, 2019, but that a disability evaluation in excess of 50 percent is not warranted for the rating period since November 15, 2019. With regard to the rating period prior to November 15, 2019, the medical evidence of record reflects that the Veteran consistently reported having sinusitis episodes. At the Veteran’s pre-discharge, November 2011 VA examination, the Veteran reported that he experiences constant sinus symptoms, with headaches and sinus pain. Post-service VA treatment records reflect that the Veteran reported that he experienced intermittent drainage and congestion, treated with over-the-counter medication. At the November 2011 VA examination, the Veteran reported having 2 incapacitating episodes per week; however, his available service treatment and VA treatment records do not reflect that the Veteran’s episodes of sinusitis that required bed rest and treatment by a physician. The Board acknowledges that purulent discharge and crusting were not found at the November 2011 VA examination, or confirmed by his VA treatment records, but the Board nonetheless resolves reasonable doubt in favor of the Veteran and finds that the Veteran’s allergic sinusitis more nearly approximated the criteria for a 30 percent rating for the rating period prior to November 15, 2019. A disability rating greater than 30 percent is not warranted for the rating period prior to November 15, 2019 as there is no history of radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries that would allow a higher evaluation pursuant to the criteria for evaluation of sinusitis. Regarding the rating period since November 15, 2019, the Board observes that a 50 percent evaluation represents the maximum schedular rating available under those diagnostic codes. Therefore, an evaluation in excess of 50 percent cannot be granted. The Board also notes that to assign a rating for sinusitis under Diagnostic Code 6513 and a separate rating for headaches under Diagnostic Code 8100 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Both disabilities, sinusitis and headaches, are rated based upon the symptoms of headaches, and only one rating is appropriate for that symptom or manifestation. The Board acknowledges the Veteran’s symptoms of allergic sinusitis. However, the rating criteria do not permit an evaluation in excess of 50 percent for this disability. To the extent that the Veteran has not indicated that he is satisfied with the 50 percent disability evaluation, the Board will consider whether the Veteran is entitled to an extraschedular rating. Extraschedular consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111(2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran’s disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant’s disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran’s allergic sinusitis are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records, and which provided the basis for the disability rating that was assigned. The Veteran primarily complained of sinus pain and headaches, and near constant sinusitis which are clearly contemplated in the currently assigned disability evaluation. In any event, the evidence does not reflect that there has been frequent hospitalization or that the Veteran’s symptoms have otherwise rendered impractical the application of the regular schedular standards. Additionally, there is no indication that the Veteran’s allergic sinusitis, standing alone, had an impact on his employment beyond that which is contemplated by the rating criteria. Therefore, referral for consideration of an extraschedular rating for the Veteran’s allergic sinusitis is not warranted. 38 C.F.R. § 3.321(b)(1). 3. Entitlement to an increased disability evaluation for thoracolumbar spine strain, initially rated as 20 percent disabling. 4. Entitlement to an increased disability evaluation for thoracolumbar spine strain, rated as 40 percent disabling for the rating period since November 15, 2019. The Veteran is currently assigned an initial 20 percent disability rating for the rating period prior to November 15, 2019, and a 40 percent disability rating thereafter, for his service-connected thoracolumbar spine strain with degenerative disc disease pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. See 38 C.F.R. § 4.20. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a 40 percent disability evaluation for the entire rating period on appeal. In this regard, the Board notes that the November 2011 VA examination report reflects that the Veteran had flexion to 45 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees on the right and 20 degrees on the left. At the next, January 2015 VA examination, he had flexion to 65 degrees, 15 degrees extension, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees bilaterally. At the November 2019 VA examination, the Veteran had flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees on the right and 25 degrees on the left, with pain. In all instances, he had pain on motion, with decreased range of motion upon repetitive use testing. At the November 2011 VA examination, he had tenderness to palpation and muscle spasm, without abnormal gait or spinal contour; however, these manifestations were not shown at the January 2015 VA examination. In October 2019, he had tenderness to palpation and muscle spasm, with abnormal gait. He had functional loss due to pain at all of his VA examinations, including functional loss due to weakness, incoordination, lack of endurance, and fatigability. In accordance with the above, the Veteran is entitled to a 40 percent disability evaluation, but no higher, for his service-connected thoracolumbar spine strain with degenerative disc disease for the entire rating period on appeal. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. The evidence does not demonstrate the presence of ankylosis. The Board has considered the lay evidence of pain. However, that evidence when accepted as correct does not establish that there is ankylosis as required for a higher rating. As noted at the November 2019 VA examination, throughout the rating period on appeal, the Veteran’s functional loss is estimated as flexion to no worse than 25 degrees on repetitive use testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran does not require the use of assistive devices for locomotion. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current ratings are based on the objectively demonstrated reduced motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Further, the Veteran is at the maximum evaluation for limited motion. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the case here. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The evidence also shows that the Veteran’s thoracolumbar spine strain with degenerative disc disease has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran’s VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran is separately evaluated for his lower extremity neurological deficits. As such, it is not for consideration here. As such, the Board finds that the Veteran’s service-connected thoracolumbar spine strain with degenerative disc disease is entitled to a 40 percent disability rating, but no higher, for the entire rating period on appeal. 5. Entitlement to an increased disability evaluation for left knee patellar tendonitis, initially rated as 10 percent disabling. 6. Entitlement to an increased disability evaluation for left knee patellar tendonitis, rated as 20 percent disabling for the rating period since November 15, 2019. 7. Entitlement to an increased disability evaluation for right knee patellar tendonitis, initially rated as 10 percent disabling. The Veteran is currently assigned a 10 percent rating for his left knee patellar tendonitis, for the rating period prior to November 15, 2019 and a 20 percent disability evaluation for the rating period thereafter; he is assigned a 10 percent disability rating for his right knee patellar tendonitis for the entire rating period on appeal. The Veteran’s disability ratings were assigned pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260. See 38 C.F.R. § 4.20. Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA’s General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Under Diagnostic Code 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. The Board acknowledges that the Veteran has been assigned separate, 10 percent disability evaluations, per knee, for instability. As such, consideration of Diagnostic Code 5257 is not for consideration here. The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran’s service-connected left knee patellar tendonitis and right knee patellar tendonitis most closely approximates the criteria for a 20 percent disability rating, per knee, for the entire rating period on appeal. With regard to limitation of motion, the Veteran has not demonstrated that either knee has compensable limitation of extension during the appeal period. Nevertheless, the Veteran has demonstrated limitation of flexion sufficient to support a 20 percent disability rating for each knee. The Board acknowledges that the November 2011 VA examination report did not provide specifics as to the Veteran’s range of motion of the knees, but observes that the Veteran, at his November 2019 VA examination, had flexion to 60 degrees on the right and 35 degrees on the left. Upon repetitive use, flexion of the right knee was 55 degrees and flexion of the left knee was to 35 degrees. Flareups were estimated to be flexion to 35 degrees on the right and 20 degrees on the left; extension was unchanged. Additionally, the Veteran reported that he experienced pain, weakness, and fatigability based on the duration of repeated use over time at each of his VA examinations; he also had tenderness to palpation, pain on motion, and stiffness of the knees at both VA examinations. VA treatment records also reflect a history of knee complaints of pain. A higher, 30 percent rating would require flexion of 15 degrees and extension of 20 degrees. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. Therefore, the 20 percent rating, per knee, for service-connected left knee patellar tendonitis and right knee patellar tendonitis compensates him for the extent of his painful motion during the entire rating period. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.). Further, there is no evidence of ankylosis or removal of the semilunar cartilage at any time during the rating period on appeal. Thus, a higher rating for the right and/or left knee based on Diagnostic Codes 5256 and 5259 is not warranted. The Board notes that the Veteran experiences “locking” and joint effusion due to meniscal tears in knee. As such, the Board finds that the Veteran is entitled to separate, 20 percent disability ratings for each knee pursuant to Diagnostic Code 5258. Although the Veteran is being compensated for his pain due to limitation of flexion of the left and right knees under Diagnostic Code 5260, the Veteran’s locking and effusion are separate symptoms which allow for additional compensation without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Finally, with regard to functional loss, the Veteran’s current evaluation contemplates pathology productive of painful motion. The evaluation is consistent with the functional equivalent of limitation of flexion to 20 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 15 degrees (Diagnostic Code 5260) or extension to 20 degrees (Diagnostic Code 5261). The Board accepts the lay evidence that the Veteran experiences pain. Similarly, the Board accepts the evidence that he has limitation of function due to pain and weakness upon flare-ups. However, such evidence does not establish that flexion is functionally limited to 15 degrees or less. Rather, the Veteran retains functional flexion to at least 20 degrees in the right and left knees. The limitation due to pain is contemplated in the current evaluation that recognizes his painful motion. See Burton, supra. Although the Veteran has pain, there is no indication that he has additional functional impairment, above and beyond the 20 percent level, per knee, for service-connected left knee patellar tendonitis and right knee patellar tendonitis, which would support a higher rating. In this regard, the Board acknowledges that the VA examination reports reflect complaints of pain and fatigue; however, there was no objective evidence of deformity or reduced muscle strength. See DeLuca, citing 38 C.F.R. § § 4.40, 4.45, and 4.59. Here, neither the medical nor lay evidence suggests that his limitation of motion approximated 15 degrees of flexion or 20 degrees of extension for the right and/or left knee. Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the right knee or left knee during the appeal period. The Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran’s symptomatology and reports of functional loss. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges that the Veteran’s left knee patellar tendonitis and right knee patellar tendonitis first demonstrated manifestations sufficient to meet the rating criteria for a 20 percent disability rating, per knee, at the November 2019 VA examination. However, the Board also acknowledges that the Veteran was not provided a VA examination between November 2011 and November 2019, and none of the Veteran’s VA medical records reflect actual measurements from range of motion testing. As the Board is unable to ascertain an exact date as to when the Veteran became entitled to an increased, 20 percent disability rating, the Board will assume that the Veteran’s left knee patellar tendonitis and right knee patellar tendonitis met the criteria for the entire rating period on appeal. For these reasons, the Board finds that the evidence supports a finding of a 20 percent evaluation, but no higher, for each knee, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.