Citation Nr: 21015345 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-16 806 DATE: March 17, 2021 ORDER Entitlement to higher staged ratings for a right hip status post total replacement, currently evaluated as 30 percent from April 1, 2014, to April 18, 2017, and as 50 percent from April 19, 2017, is denied. Entitlement to a rating in excess of 10 percent for necrosis of the right hip with degenerative changes prior to February 13, 2013, is denied. Entitlement to a rating in excess of 20 percent for residuals of a fractured C-2 odontoid with cervical spine degenerative disc disease is denied. Entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture with degenerative changes is denied. Entitlement to a rating in excess of 10 percent for residuals of a left knee posterior cruciate ligament rupture with degenerative disease is denied. Entitlement to a rating in excess of 10 percent for left knee instability for the period from March 23, 2011, to February 6, 2021, is denied. Entitlement to a 20 percent rating, and no higher, for left knee instability from February 7, 2021, is granted. FINDINGS OF FACT 1. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s right hip status post total replacement manifested functional impairment to the extent that higher staged ratings may be assigned. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s necrosis of the right hip with degenerative changes manifested functional impairment to the extent that higher staged ratings may be assigned prior to February 13, 2013. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s residuals of a fractured C-2 odontoid with cervical spine degenerative disc disease manifested functional impairment to the extent that higher staged ratings may be assigned. 4. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s residuals of a left ankle fracture with degenerative changes manifested functional impairment to the extent that higher staged ratings may be assigned. 5. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s left knee posterior cruciate ligament rupture with degenerative disease manifested functional impairment to the extent that higher staged ratings may be assigned. 6. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s left knee instability manifested functional impairment to the extent that a higher rating may be assigned from March 23, 2011, to February 6, 2021. 7. From February 7, 2021, the Veteran’s left knee instability manifested functional impairment meeting the amended regulatory criteria for a 20 percent rating based on persistent instability requiring a knee brace prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for entitlement to higher staged ratings for a right hip status post total replacement, currently evaluated as 30 percent from April 1, 2014, to April 18, 2017, and as 50 percent from April 19, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5054. 2. The criteria for entitlement to a rating in excess of 10 percent for necrosis of the right hip with degenerative changes prior to February 13, 2013, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5252-5010. 3. The criteria for entitlement to a rating in excess of 20 percent for residuals of a fractured C-2 odontoid with cervical spine degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5242-5235. 4. The criteria for entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture with degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5010-5271. 5. The criteria for entitlement to a rating in excess of 10 percent for residuals of a left knee posterior cruciate ligament rupture with degenerative disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5010. 6. The criteria for entitlement to a rating in excess of 10 percent for left knee instability from March 23, 2011, to February 6, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5257 (2020). 7. The criteria for entitlement to a rating of 20 percent, and no higher, for left knee instability from February 7, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5257 (as amended February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1982 to May 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in September 2016. A transcript of the hearing is associated with the claims file. These matters have an extensive procedural history dating back to 2011. Most recently, the Board remanded these matters for further development in 2019. The agency of original jurisdiction (AOJ) was asked to procure VA examinations compliant with the holding in Sharp v. Shulkin, 29 Vet. App, 26 (2017). The Veteran underwent VA examinations in January 2020. He did not report current flare-ups of the hip, ankle, or cervical spine. Regarding the left knee, the examiner found that the Veteran’s symptomatic reports are not considered a flare-up under relevant medical standards. Therefore, the Board finds that the examination reports substantially comply with the remand directives, and, thus, the matters are ready for a decision on the merits. Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disorders under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Increased Ratings – Right Hip The Board finds that the most probative evidence does not reach the level of equipoise as to whether higher staged ratings may be assigned for the Veteran’s right hip disorder. Therefore, the claim may not be granted. Initially, the Board observes that the Veteran received a 10 percent rating for avascular necrosis of the right hip from August 30, 1999, until February 13, 2013. On that date, he underwent a total right hip replacement and was assigned a temporary 100 percent rating for convalescence from February 13, 2013. Thereafter, a 30 percent rating was assigned from April 1, 2014, and continued through April 18, 2017. From April 19, 2017, a 50 percent rating was assigned under DC 5054. See Rating Decision – Codesheet, August 2019. Therefore, the questions for the Board are whether higher staged ratings are appropriate for the period prior to February 13, 2013, and the period from April 1, 2014. Prior to February 13, 2013, the Veteran’s right hip disorder was evaluated under 5252-5010. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The disorder was rated under DC 5252, which rates limitation of flexion of the thigh to 10 degrees at 40 percent, limited flexion to 20 degrees at 30 percent; limited flexion to 30 degrees at 20 percent; and flexion limited to 45 degrees at 10 percent. 38 C.F.R. § 4.71a, DC 5252. After the Veteran’s surgery and convalescent period, his right hip disorder was rated under DC 5054. This code provides for a one year temporary total rating for convalescence, after which a 30 percent minimum may be assigned. If the disorder manifests moderately severe residuals of weakness, pain or limitation of motion, a 50 percent rating is assigned; if the disorder manifests markedly severe residual weakness, pain or limitation of motion following implementation of prosthesis, a 70 percent rating is assigned; if following implantation of prosthesis, the disorder manifests with painful motion or weakness such as to require the use of crutches, a 90 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5054. Turning to the evidence of record, the Veteran underwent a VA examination for his hip in April 2011. He complained of pain, instability, giving way, stiffness, and lack of endurance becoming worse over time. Range of motion of the right hip showed flexion 0 to 120 degrees, extension 0 to 30 degrees, adduction 0 to 30 degrees, abduction 0 to 45 degrees, external rotation 0 to 60 degrees, and internal rotation 0 to 40 degrees. The Veteran performed repetitive use testing without additional functional loss. There was objective evidence of painful motion in the right hip. The examiner noted that the Veteran’s gait was normal, and that he had hip pain with weightbearing, but the Veteran stated that he could “work through it.” There was no evidence of ankylosis of the hip joint. The Board has reviewed VA medical records. However, such records do not show evidence of functional impairment to the extent that a higher than 10 percent rating may be assigned prior to February 13, 2013. After reviewing the evidence, the Board finds that a higher evaluation than 10 percent may not be assigned for the right hip disorder prior to February 13, 2013. The April 2011 VA examiner documented functional impairment consistent with painful, but not separately compensable, range of motion of the right hip. Such a level of impairment is consistent with a 10 percent rating. See 38 C.F.R. §§ 4.59, 4.71a, DC 5254, Burton, 25 Vet. App. at 5. Thus, the record does not reflect functional impairment to the extent that a higher rating may be assigned. 38 C.F.R. § 4.7. For the period after the Veteran’s right hip replacement surgery beginning April 1, 2014, the record shows that the Veteran underwent a VA examination in May 2016. He described his daily pain level as a 6/10 in severity, rising to an 8/10 severity with prolonged sitting and activities. Range of motion of the right hip was normal, with no objective evidence of pain with weightbearing or localized tenderness. The Veteran performed repetitive use testing without additional functional loss. Muscle strength testing was normal and there was no ankylosis or malunion of the femur, flail hip joint, or a leg length discrepancy. In April 2017, the Veteran appeared for another VA examination. He complained of daily pain at an 8/10 in severity exacerbated by prolonged sitting and standing. Range of motion testing showed flexion 0 to 110 degrees, extension 0 to 10 degrees, adduction 0 to 15 degrees, abduction 0 to 30 degrees, external rotation 0 to 40 degrees, and internal rotation 0 to 20 degrees. Adduction was not limited to the extent that the Veteran could not cross his legs. Pain not causing functional loss was noted on examination, along with pain on weightbearing and to palpitation and tenderness of the lateral aspect of the hip. The Veteran performed repetitive use testing without additional functional loss. Muscle strength testing showed active movement against some resistance. There was no ankylosis or malunion of the femur, flail hip joint, or a leg length discrepancy. The Veteran endorsed occasional usage of crutches or a cane. The Veteran underwent a VA examination in February 2018. He reported having “a lot” of right hip pain. Range of motion testing showed flexion 0 to 60 degrees, extension 0 to 10 degrees, adduction 0 to 20 degrees, abduction 0 to 20 degrees, external rotation 0 to 15 degrees, and internal rotation 0 to 20 degrees. There was no ankylosis, but the examiner found “moderately severe” residuals of weakness, pain, or limitation of motion. In January 2020, the Veteran appeared for a VA examination and complained of daily pain in his right lateral hip and thigh, increasing to a severity of 9/10 three times a day lasting for about an hour. Range of motion testing showed flexion 0 to 95 degrees, extension 0 to 10 degrees, adduction 0 to 15 degrees, abduction 0 to 25 degrees, external rotation 0 to 15 degrees, and internal rotation 0 to 15 degrees. There was no evidence of pain with weightbearing, but the examiner found objective evidence of mild tenderness of the right greater trochanter. The Veteran performed repetitive use testing without additional functional loss. Muscle strength testing was normal and there was no ankylosis. There was no malunion of the femur, flail hip joint, or a leg length discrepancy. The examiner found that there were “moderately severe” residuals of weakness, pain, or limitation of motion. The Board has reviewed VA medical records. For example, a primary care note in May 2015 found full range of motion in the lower extremities. The Veteran did not report any residual weakness, pain, or limited motion of the hip during a physical therapy consultation in January 2016. In December 2016, an emergency department note documented full range of motion in all extremities and a later consultation with the electrodiagnostic medicine clinic showed extremities with “good bulk, normal tone, no atrophy appreciated.” The Veteran did not report symptoms of pain, weakness, or limited motion of the hip to his physical therapist in May, June, July, or August 2019. In August 2019, the Veteran told the therapist that his pain level was a 0/10, that he was doing a workout program at the gym and a home exercise program, and did not report any limited motion in the hip. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether higher staged ratings may be assigned for the Veteran’s right hip disorder for the period from April 1, 2014. The VA examination in May 2016 showed normal range of motion without objective evidence of pain and normal muscle strength. Moreover, VA treatment records, as noted previously, do not suggest reports or treatment of symptoms more closely approximating “moderately severe” residuals during the period from April 1, 2014, to April 18, 2017. 38 C.F.R. § 4.71a, DC 5054. From April 19, 2017, a 50 percent rating was assigned based on an increase in severity resulting in “moderately severe” residuals of pain, weakness, and limited motion. The VA examiners in 2017, 2018, and 2020, documented a level of functional impairment consistent with the above rating. Moreover, although the Veteran has made subjective reports of intense daily right hip pain rising with activity, the Board notes that the Veteran denied having any pain and reported doing gym workouts and a home exercise program to his VA physical therapist in August 2019. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995). As such, the Board finds that the most probative evidence of record does not suggest functional impairment more closely approximating “markedly severe” residuals to the extent that a higher rating is appropriate. In sum, the most probative evidence does not reach the level of equipoise, and the claim may not be granted. Increased Ratings – Cervical Spine The Board finds that the most probative evidence of record does not reach the level of equipoise as to the claim of entitlement to higher staged ratings for a cervical spine disorder. Therefore, the claim may not be granted. The Veteran’s residuals of a fractured C-2 odontoid with cervical spine degenerative disc disease is rated under the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71a. The General Rating Formula provides that a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The record does not reflect incapacitating episodes of Intervertebral Disc Syndrome (IVDS) to the extent that a rating could be considered under such criteria. Id. at 5243. The Veteran has received a 20 percent rating for the entirety of the appeal period. See Rating Decision – Codesheet, August 2019. Turning to the evidence of record, the Veteran underwent a VA examination in April 2011. He reported moderate constant pain and stiffness in his neck for which he takes Tylenol as needed. Physical examination showed normal gait, posture, spinal curvature, head position, and symmetry in appearance of rhythm of spinal motion. Range of motion testing showed forward flexion to 35 degrees, decreasing to 30 degrees after 5 repetitions. There was no ankylosis of the cervical spine. The Veteran underwent another VA examination in May 2016. Range of motion of the cervical spine was normal and no pain was noted on examination. Muscle strength testing was normal and there was no evidence of ankylosis of the spine. In April 2017, the Veteran attended a VA examination. Range of motion showed forward flexion within normal limits. Pain not causing functional loss was noted on examination. The Veteran performed repetitive use testing without additional functional loss. There was no ankylosis of the cervical spine. The Veteran reported for a VA examination in February 2018. He endorsed symptoms of neck pain for which he takes motrin, and flare-ups and spasms occurring nightly. Range of motion testing showed forward flexion 0 to 35 degrees. The Veteran performed repetitive use testing without additional functional loss. There was no evidence of ankylosis of the spine. The Veteran underwent an additional VA examination in January 2020. He endorsed chronic neck pain daily at a 7/10 severity, spasms of the neck with a 9/10 severity, and pain down both arms. Range of motion testing showed forward flexion 0 to 35 degrees. Pain not causing functional loss was noted on examination, with objective evidence of mild paracervical tenderness at the C5-C6 area. The Veteran was able to perform repetitive use testing without additional functional loss, and the examiner found that the Veteran would not be additionally limited after repeated use over time. Muscle strength, reflex, and sensory testing were all normal. There was no IVDS or ankylosis of the spine. The Board has reviewed the Veteran’s VA medical records. However, such records do not show evidence of functional impairment equivalent to ankylosis of the spine or forward flexion limited to 15 degrees or less to the extent that higher staged ratings may be assigned for the cervical spine disorder. 38 C.F.R. § 4.2. After careful review of the evidence, the Board finds that the most probative evidence does not reach the level of equipoise in the claim for a rating in excess of 20 percent for the Veteran’s cervical spine disorder. In reaching this determination, the Board has reviewed the medical evidence, which does not document ankylosis of the cervical spine or forward flexion limited to 15 degrees or less to the extent that a higher rating may be assigned under the general rating formula. 38 C.F.R. § 4.71a, DC 5242-5235. Accordingly, a higher rating is not applicable. The Board has considered the Veteran’s reports of functional impairment with flare-ups and after repeated use over time. However, he did not report flare-ups as a present concern during the January 2020 VA examination. Additionally, the examiner considered the Veteran’s symptomatic reports, but determined that he would not suffer significant additional limitations after repeated use over time. See Mitchell, 25 Vet. App. at 43. Moreover, the Board is aware that the April 2011 examiner determined that the Veteran would suffer an additional lost range of motion of 5 degrees after 5 repetitions. If this estimate is applied to the other examinations of record, the Veteran’s forward flexion would not reach 15 degrees after repeated use over time. The Board has considered the Veteran’s lay reports of neck pain. However, as the objective medical evidence does not support forward flexion limited to 15 degrees or less or the presence of ankylosis during the rating period, a higher rating is not for application. See 38 C.F.R. § 4.2. In sum, as the most probative evidence does not reflect functional impairment to the extent that higher staged ratings may be assigned for the cervical spine disorder, the claim may not be granted. Increased Ratings – Left Ankle The Board finds that the most probative evidence does not reach the level of equipoise as to whether higher staged ratings may be assigned for the Veteran’s left ankle disorder. Therefore, the claim may not be granted. The Veteran’s left ankle disorder is currently rated at 38 C.F.R. § 4.71a, DC 5010-5271, which rates limited motion of the ankle. The Veteran has received a 20 percent rating for the ankle for the entirety of the rating period. See Rating Decision – Codesheet, August 2019. This is the maximum rating that may be assigned for limited motion of the ankle without ankylosis under the rating schedule. The record does not reflect evidence of ankylosis or malunion of the os calcis or astragalus with marked or moderate deformity to the extent that higher or separate ratings may be assigned. Neither the Veteran nor the evidence of record has asserted that his left ankle disorder manifests in such exceptional or unusual impairment as to indicate a referral for consideration of an evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b). In sum, as the most probative evidence does not reach the level of equipoise, the claim may not be granted. Increased Ratings – Left Knee The Board finds that the most probative evidence is at least in equipoise as to whether a 20 percent rating may be assigned for left knee instability from February 7, 2021. However, no other higher staged ratings may be granted. The Veteran’s residuals of posterior cruciate ligament rupture with degenerative joint disease is rated as 10 percent under DC 5010, which provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or instability of the affected joint. He also receives a 10 percent rating for instability of the left knee under DC 5257. See Rating Decision – Codesheet, August 2019. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a, DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either 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 for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Separate ratings may be awarded under DC 5257, 5260, and 5261. See VAOPGCPREC 9-2004. A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). Turning to the evidence of record, the Veteran underwent a VA examination in April 2011. He reported symptoms of knee pain, instability, giving way, stiffness, swelling, and lack of endurance. Range of motion testing showed flexion 0 to 120 degrees and extension 120 to 0 degrees, with no additional lost range of motion after 5 repetitions. There was mild varus/valgus of the medial and lateral collateral ligaments. The examiner commented that the left knee was “a bit unstable” and “will sort of give out without his falling, on occasion.” The Veteran attended another VA examination in May 2016. He related symptoms of daily knee pain at 3/10, increasing while walking to the level of 6/10. Range of motion of the left knee was normal and no pain was noted on examination. The Veteran performed repetitive use testing without additional functional loss. There was no ankylosis of the knee, and no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal and there was no indication of a meniscal condition. The Veteran appeared for a VA examination in April 2017. Range of motion of the left knee was flexion 0 to 110 degrees and extension 110 to 0 degrees. Pain not causing functional loss was noted on examination. The Veteran performed repetitive use testing without additional functional loss. There was no ankylosis, but the examiner noted a history of slight instability in the left knee. Joint stability testing was normal and there was no indication of a meniscal condition. In February 2018, the Veteran appeared for a VA examination. Range of motion of the left knee was flexion 0 to 115 degrees and extension 115 to 0 degrees. Pain causing functional loss was noted on examination. The Veteran performed repetitive use testing without additional functional loss. There was no ankylosis of the knee, and no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal and there was no indication of a meniscal condition. The examiner noted pain in non-weightbearing of the knee. The Board has reviewed the Veteran’s VA medical records. For example, in July 2017, an orthopedic consultation note indicates that the Veteran was prescribed a brace by a physician for his left knee pain. The clinician wrote: “Left medial unloader hinged knee brace to correct genu varum with underlying elastic knee sleeve to prevent skin irritation was ordered today to replace the old worn out one.” The Veteran underwent a VA examination in January 2020. He reported daily pain at an average of 5-6/10, sometimes reaching an 8/10, and reaches a level of 10/10 lasting for about an hour each day. Range of motion was flexion 0 to 115 degrees and extension 115 to 0 degrees. The Veteran performed repetitive use testing without additional functional loss. The examiner found that the left knee would not be additionally limited by pain, weakness, fatigability, or incoordination after a period of repeated use over time. There was no ankylosis of the knee, and no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal and there was no indication of a meniscal condition. The examiner indicated that the Veteran regularly used a left knee brace. After careful review of the record, the Board finds that a 20 percent rating may be assigned for left knee instability consistent with the amended DC 5257 effective February 7, 2021. In July 2017, a VA physician indicated that he had ordered a brace for the Veteran’s left knee. In this case, the Board finds that this is sufficient, under an equipoise standard, to find that the Veteran’s left knee instability required a brace prescribed by a physician. Thus, a 20 percent rating may be assigned from February 7, 2021, the earliest effective date allowed under the new regulations. However, no other higher staged ratings may be assigned. The Veteran’s range of motion has not met the criteria for compensable range of motion at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DC 5260-61. The record does not reflect evidence of a symptomatic meniscal condition to the extent that a higher rating may be assigned under DC 5258 or 5259. There is no evidence of ankylosis of the knee or other impairment to the extent that other staged ratings may be considered. 38 C.F.R. § 4.71a, DC 5256, 5262-63. The Veteran’s symptoms of flare-ups and after repeated use over time have been considered. However, the January 2020 VA examiner determined that the Veteran’s symptomatic reports were not considered to be “flare-ups”. He also determined that the Veteran would not suffer significant functional loss after repeated use over time based on the examination. See Mitchell, 25 Vet. App. at 43. Additionally, the Board observes that the April 2011 VA examiner found that the Veteran did not suffer additional lost range of motion after 5 repetitions, which does not suggest that a higher rating may be assigned on that basis. The Board acknowledges the Veteran’s reports of knee pain, but concludes that most probative evidence does not allow for a higher rating in this case. 38 C.F.R. § 4.2. In sum, a 20 percent rating may be assigned for left knee instability from February 7, 2021, but the record does not support any other higher staged ratings during the appeal period. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.