Citation Nr: 21024256 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-35 506 DATE: April 22, 2021 ORDER Service connection for a left foot disorder, including as secondary to the right and left knee disabilities, is denied. Service connection for a right foot disorder, including as secondary to the right and left knee disabilities, is denied. Service connection for a back disorder, including as secondary to the service-connected right and left knee disabilities, is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease (DJD) is denied. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with DJD is denied. Entitlement to a rating in excess of 10 percent for right knee laxity is denied. A separate 10 percent rating, but no higher, for left knee instability is granted effective March 22, 2015, and no earlier. Entitlement to a compensable rating for left knee limitation of extension is denied. FINDINGS OF FACT 1. The Veteran’s left and right foot pes planus and hallux valgus preexisted the Veteran’s entrance to active duty and did not increase in severity beyond their natural progression during her active service. 2. The Veteran’s current left and right foot disabilities are not proximately due to or are they being aggravated by the Veteran’s service-connected right and left knee disabilities. 3. The Veteran’s back strain is not proximately due to or is it being aggravated by her service-connected right and left knee disabilities; the Veteran’s back strain did not begin during active service; and, the back strain is not otherwise related to an in-service injury or disease. 4. The Veteran’s right knee disability is manifested by pain and periodic swelling with slight instability, but not by ankylosis, dislocated or removal of cartilage, limitation of flexion to 45 degrees or worse, limitation of extension to 10 degrees or worse, impairment of tibia and fibula, or genu recurvatum, and the Veteran’s right knee is not manifested by sprain or tear and has not been surgically repaired. 5. The Veteran’s left knee disability is manifested by pain throughout the pendency of this claim, and slight instability is shown since March 22, 2015, but the left knee disability is not manifested by ankylosis, dislocated or removal of cartilage, limitation of flexion to 45 degrees or worse, limitation of extension to 10 degrees or worse, impairment of tibia and fibula, or genu recurvatum, and the Veteran’s left knee is not manifested by sprain or tear and has not been surgically repaired. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, to include as secondary to the service-connected left and right knee disabilities, are not met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.306, 3.310. 2. The criteria for service connection for a right foot disability, to include as secondary to the service-connected left and right knee disabilities, are not met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.306, 3.310. 3. The criteria for service connection for a back disorder, including as due to service or due to the service-connected right and left knee disabilities, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a rating in excess of 10 percent for right knee DJD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 5. The criteria for a rating in excess of 10 percent for left knee DJD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 6. The criteria for a rating in excess of 10 percent for right knee laxity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 7. A 10 percent rating, and no higher, for left knee instability, is granted effective March 22, 2015, and no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 8. The criteria for a compensable rating for left knee limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 7, 1998 to March 24, 1999. The matters on appeal come before the Board of Veterans’ Appeals (Board) from August 2011, January 2013, June 2013, and June 2018 rating decisions, as well as following a September 2018 Memorandum Decision from the Court of Appeals for Veterans Claims (Court) and subsequent July 2019 and June 2020 Board remands. The detailed procedural history is found in prior Board remands and, therefore, need not be repeated here. The Board recognizes receipt of a statement in February 2021 with a list of the Veteran’s VA and private treating physicians and their contact information. Several of these were listed as specialists for disorders that are not at issue in this decision. The Veteran’s private physician related to her feet was listed, but those records are already a part of the claims file, as are the Veteran’s VA treatment records. The Board, therefore, does not feel another remand is necessary in order to further develop the evidentiary record. Service Connection The Veteran claims service connection is warranted for right and left foot disorders and for a back disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Right and Left Foot Disorders A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C. § 1111. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered “aggravation in service”, unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Here, the Veteran asserts that her preexisting bilateral pes planus and hallux valgus was permanently aggravated by her active duty service. In particular, she indicates that the physical training she was required to do while on active duty worsened her foot disability. Accordingly, she believes service connection is warranted. The Veteran’s July 1998 enlistment examination, which was conducted prior to her December 1998 entrance into active duty, revealed a diagnosis of moderate asymptomatic pes planus and bilateral hallux valgus consistent with bunion of the bilateral first toes. Service treatment records show that prior to active duty, in September 1998, the Veteran injured her right foot when she stepped off a curb and fell. X-rays at that time showed a non-displaced fracture of the tuberosity of the base of the right fifth metatarsal. In November 1998, the Veteran received follow up treatment, which revealed her right foot sensitivity was improving. The treatment note at that time indicated the x-ray revealed union of the fracture. The physician also noted the Veteran’s upcoming entry into military service on December 7, 1998, and indicated that this should provide time for all remaining soreness to disappear. The physician, however, also noted that the Veteran had a bunion deformity of her right foot, which was not symptomatic and did not require treatment at that time. A right foot x-ray on December 7, 1998, the date of the Veteran’s entrance into active service, showed no obvious fracture. Later in December 1998, the Veteran reported that her left foot was scraped, and she reported pain on her left 2nd toe. A diagnosis of a skin injury was assessed. She was placed on light duty on December 28, 1998, with a return to full duty the next day due to pain in the second toe of the left foot. The remaining service treatment records do not show additional treatment of either foot. The Veteran separated from active service in March 1999 and the records show this was due to her now service-connected right knee. The records at this time are without mention of any symptoms related to either foot. The Veteran has reported throughout this claim that she was put on a profile and given special shoes due to her foot disability in service; however, the record before the Board does not include any evidence of the profile or prescription shoes. Post service private treatment records, received in June 2016, show the Veteran underwent a right foot bunionectomy in November 2007, and a left foot bunionectomy in February 2008. In November 2013, she reported numbness and paresthesias of the feet. Gait testing was normal and symmetrical with normal station and no ataxia. Post service VA treatment records show complaints of pain, numbness, and tingling in the feet. In a May 2013 record, the examiner indicated these symptoms could be related to diabetic neuropathy. Bilateral hallux valgus and degenerative joint disease of the left first metatarsal was noted in the September 2012 VA foot examination report. The VA examiner opined (in September 2012 and in a subsequent November 2012 opinion) that the bilateral foot disability was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner based the opinion on the fact that the Veteran did not report any symptoms or receive any treatment related to hallux valgus in service. Further, the examiner noted that the Veteran’s in-service foot treatment consisted of a left foot abrasion and left second toe pain, and that her activity was restricted during active duty due to other conditions, which limited stress to her feet while on active duty. The examiner noted that the Veteran denied any symptoms of the second toe during the examination, except for numbness on the dorsum first and second toe with the onset in 2008 following surgery. Thus, this examination was based upon a review and discussion of the Veteran’s medical history and her reported history of symptoms. During the June 2015 DRO hearing, the Veteran confirmed she had asymptomatic bilateral pes planus and hallux valgus during the entrance examination. She indicated that she first had complaints in December 1998. She reported that during basic training she was not provided with the proper shoes. The Veteran stated that she received different shoes and was placed on light duty for two days. Again, there is no evidence of this within the Veteran’s service records. The Veteran underwent another VA examination in December 2015. After review of the cumulative evidence (including personal testimony provided at the June 2015 DRO hearing), interview, and examination, the examiner opined the Veteran’s bilateral pes planus and hallux valgus pre-existed active duty service and were not permanently aggravated beyond normal progression due to the rigors of basic training. The examiner explained that the service treatment records do not indicate any issues related to the Veteran’s current conditions with the exception of the July 1998 physical noting the foot disability was asymptomatic. The examiner noted that the Veteran was seen throughout service for complaints of right knee pain, and was eventually unable to complete basic training due to the knee. There were no complaints pertaining to the current foot disabilities. Regarding the Veteran’s contention that her biomechanics impacted her feet, the examiner noted that both of the Veteran’s knees would have been symptomatic and affected. The examiner stated the evidence does not indicate the Veteran’s feet are a result of a biomechanical reason. The examiner noted there were no indications of relevant symptoms of any kind present during basic training, and the examiner found the Veteran’s lay testimony inconsistent with the clinical scenario and documentation that was present during basic training. A May 2016 VA podiatry outpatient treatment record documents the Veteran’s complaints of bilateral foot pain as well as pain in the first metatarsophalangeal joints when she is walking. She indicated that she was unable to fit her orthotics in her shoes, and that she feels off balance because of the numbness in her big toes, bilaterally. The impression was pain, bilateral hallux abducto valgus, and bilateral pes planus. In a June 2016 statement as well as during the August 2016 Board videoconference hearing, the Veteran reiterated her contentions that her pre-existing bilateral foot disability was aggravated by service. The Board then issued the January 2017 decision denying the right and left foot disability claims. The September 2018 Court memorandum decision found the Board erred in relying on the VA examinations to the extent the reports lacked opinions as to whether the Veteran’s service-connected knee disabilities aggravate the current foot conditions. The Board’s July 2019 remand followed. In December 2019, the Veteran underwent a new VA examination and an opinion was obtained. The examiner again noted the diagnoses of pes planus, hallux valgus and also noted degenerative arthritis in both feet. The examiner indicated the pes planus and hallus were diagnosed in 1998, while the arthritis was found in March 2016. The Veteran reported at that time that she had no foot pain prior to service. She again suggested that she was given special running shoes and placed on light duty with physical restrictions due to her feet and knees in service. She reported her symptoms continuing after service through to the time she underwent bunionectomies in 2007 (right) and 2008 (left) and ever since. She reported that she continues to experience bilateral foot pain and is unable to get relief. She reported her treatment including special shoes and orthotics, cortisone injections, physical therapy, surgery, and pain medication. The examiner, after reviewing the file and examining the Veteran, went on to indicate that it is less likely than not that the Veteran’s service connected knee disabilities aggravated the Veteran’s left foot condition beyond its natural progression. The examiner reasoned that the service treatment records showed several medical encounters for knee pain with only a mention of acute left second toe pain and an acute left foot abrasion. The examiner also noted that the bilateral knee condition is not significant enough to cause a permanently altered gait that results in worsening of the foot condition. Thus, the examiner concluded that the foot conditions are not permanently aggravated beyond normal progression due to the knee conditions. While the Board recognizes the examiner initially mentioned only the left foot, the Board presumes this is because it was only the left foot that was noted to have the second toe pain and skin abrasion in the service treatment records. The examiner went on to generally note that the right and left knee disabilities are not severe enough and do not cause a permanent altered gait to warrant a conclusion that they aggravate the feet. This opinion is relevant to all the right and left foot diagnoses and the Board finds it sufficient to draw a conclusion in this case. No additional evidence has been added to the claims file that discusses the etiology of the Veteran’s bilateral foot disabilities. In sum, the Veteran’s bilateral pes planus and hallux valgus were noted upon her entry into active duty service. While the Veteran suggested at the most recent VA examination that she had no foot pain prior to service, this is inconsistent with the evidence of record. These disorders were noted at the time of her entry into service. Moreover, these foot disorders did not increase in severity beyond their natural progression during service. The service treatment records do not include treatment or report of symptoms suggestive of a worsening during service. While the Veteran has suggested that she was given special shoes and put on limited duty due to her feet, this is not indicated within her service records. Her limitations, limited duty, and ultimate discharge were noted in service to pertain to her knee disability. Further, the Board places great probative value on the opinions provided by the VA examiners. The examiners noted the pre-service diagnoses of pes planus and hallux valgus. The examiners also noted the lack of chronic complaints or treatment related to pes planus and hallux valgus while on active duty. Thus, given these facts, the examiners opined that the Veteran’s bilateral pes planus and hallux valgus were not related to or aggravated by her military service. The examiners reviewed the claims file, to include the Veteran’s contentions, her service treatment records that documented an abrasion to the left foot, as well as left second toe pain, and post-service treatment records, and conducted a physical examination. As such, the opinions were based on an accurate and complete factual premise. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); also see Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board accords great probative weight to the September 2012 and December 2015 VA examiner’s opinions. There is no contrary medical opinion of record on this question. Thus, the medical evidence does not support a finding that the Veteran’s preexisting right and left foot disabilities were aggravated beyond their natural progression during or due to the Veteran’s active service. The question remains whether the Veteran’s right and/or left foot disability are being aggravated by the Veteran’s right and left knee disability. The December 2019 VA examiner addressed this question and found no such aggravation to be occurring. The examiner noted that the right and left knee disabilities have not caused any permanent altered gait and are otherwise not severe enough to cause an increase in the foot disabilities. The examiner also noted the in-service indications related to the left foot and found these not to be indications of a worsening of the pre-service disability. This examiner also conducted a physical examination and reviewed the claims file, summarized the Veteran’s contentions, and noted the service treatment records that documented an abrasion to the left foot, as well as left second toe pain. As such, the opinion was based on an accurate and complete factual premise. Moreover, the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, 22 Vet. App. 295; also see Stefl, 21 Vet. App. 120. Therefore, on the question of secondary service connection, the Board accords great probative weight to the December 2019 VA examiner’s opinion. There is no contrary medical opinion of record on this question. Thus, the medical evidence does not support a finding that the Veteran’s preexisting right and left foot disabilities have been aggravated by the Veteran’s service-connected knee disabilities. Service connection on a secondary basis under 38 C.F.R. § 3.310 is, therefore, also not warranted. With regard to the contentions of the Veteran, the Board notes that the Veteran is competent to describe the current symptoms of her pes planus and hallux valgus. However, she is not competent to offer an opinion as to whether her military service or her service-connected knee disabilities aggravated her pes planus and hallux valgus beyond their natural progression. The questions related to aggravation involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the Board finds that the impact, if any, of the Veteran’s activities during her military service on her pre-existing pes planus and hallux valgus is a complex medical question, as it requires the knowledge of the interaction of various weight-bearing joints and the impact one has on the other. The Veteran is not shown to have the medical knowledge or training to make such complex medical determinations. Therefore, it is outside the competence of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Finally, the Board has found that the Veteran’s right and left foot disabilities preexisted the Veteran’s active service. The presumption of soundness, therefore, does not apply and a direct service connection analysis is not warranted. The Board recognized the Veteran reported to the December 2019 VA examiner that she had no foot pain prior to service and that her pain started in service and continued since. Any contention at this time that suggests the foot disabilities did not preexist service is inconsistent with the service treatment records and with the Veteran’s prior statements, including her Board hearing testimony. In this regard, the Veteran’s statements to the December 2019 VA examiner related to the initial onset of her foot disabilities lack credibility. For the foregoing reasons, the Veteran’s claims for service connection for right and left foot disabilities must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Back Disorder The Veteran contends that service connection is warranted for a back disorder as a result of her military service, or, in the alternative, as secondary to her service-connected right and left knee disorders. Initially, the Board recognizes the Veteran is shown as having back pain in her medical history and indicated intermittently throughout her VA treatment records. A VA examiner in June 2013 diagnosed the Veteran with back strain. Moreover, the Veteran is service connected for right and left knee disabilities. Therefore, the question before the Board is whether the Veteran’s current back disability began during service or is at least as likely as not related to an in-service injury or disease, or, in the alternative, whether the back disability is proximately due to or being aggravated by her service-connected knee disabilities. The Veteran’s service treatment records do not reflect any treatment or any indication that the Veteran reported symptoms related to her back. During the June 2013 VA examination, the Veteran reported daily low back pain and stiffness. The examiner noted the Veteran’s thought that her bilateral knee pain may be the cause, but noted the lack of medical support for this. Physical examination revealed low back tenderness; however, x-ray did not reveal arthritis. The examiner diagnosed thoracolumbar strain. After a review of the evidence, the examiner opined that the Veteran’s current back condition was not caused by or permanently aggravated by her service-connected bilateral knee disability as the knee disability is not of such severity to cause a back condition and there was insufficient evidence of disturbances of alignment with abnormal gait to substantiate a claim of aggravation. Throughout the record, the Veteran’s back pain is noted intermittently within outpatient records. At times it was reported and at other times, including in March 2011 private treatment records, there is a specific indication of no back pain. However, with the indication of intermittent back pain throughout the record, there is no indication in these records of a causal connection between any current back pain and the Veteran’s active service, and no indication that the back pain is proximately due to or being aggravated by the Veteran’s right or left knee disability. Based upon a review of the record, the Board finds there is no indication that the Veteran’s back disorder is directly related to her military service. There is no indication of symptoms related to her back at any time during her period of active service or until many years later. Moreover, the record does not show, and the medical evidence does not establish that the back disorder is proximately due to or being aggravated by the Veteran’s service-connected knee disabilities. The Board recognizes the Veteran’s belief that her back disorder is related to her knee disabilities. She reported this to the June 2013 VA examiner, however that examiner noted there was no medical evidence to support it. Also, during the June 2015 DRO and August 2016 Board hearings, the Veteran reiterated her belief that her current back condition was a result of her service-connected bilateral knee disability. The Veteran also testified during the August 2016 hearing that her back condition was also a result of her bilateral foot disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, such as how a lower extremity disorder impacts the spine . Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion in this case. Consequently, based on the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s back, disorder is related to her military service or that her service-connected bilateral knee disabilities caused or aggravated such disorder beyond the natural progression. The Board has also considered whether service connection is warranted for the Veteran’s low back disorder on a presumptive basis. The Board notes, however, the record fails to show that the Veteran has arthritis of the spine. As such, presumptive service connection, to include on the basis of any continuity of symptomatology, is not warranted for her back disability. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, as noted, the Veteran has also indicated that her back disability is due to her current bilateral foot disability. The provisions of 38 C.F.R. § 3.310 only apply to service connection for secondary disabilities caused by service-connected disabilities. The decision herein has established that service connection for the right and left foot disabilities is not warranted. There is no legal basis for establishing service connection for the back disorder as secondary to the right and left foot disabilities. Accordingly, this claim for service connection for a low back disorder must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating – Right and Left Knee The Veteran is service connected for both her right and left knee and has appealed the ratings assigned for each. In the interest of efficiency, the Board will discuss these ratings together, below. The Veteran was initially awarded service connection for left and right knee patellofemoral syndrome with degenerative joint disease (DJD) by way of an August 2011 rating decision. An initial 10 percent rating was assigned for each, effective March 23, 2011, the date of her claim. This rating was assigned based upon 38 C.F.R. § 4.59 to compensate the Veteran for the pain experienced in each knee. The Veteran appealed the initial ratings assigned. In December 2013, the RO issued a rating decision awarding a separate 10 percent evaluation for laxity in the right knee, also effective March 23, 2011. Most recently, in June 2019, the RO issued a rating decision, which addressed the left knee. This rating decision suggested it was being issued based upon the Veteran’s report at her August 2016 Board hearing that her knee disability had increased in severity. However, the rating decision did nothing other than to note a compensable rating is not warranted for limited extension in the left knee. No increase was awarded at this time, despite the rating decision suggesting this was a partial grant of benefits. Nonetheless, the rating is on appeal and will be discussed below. The Board will examine the appropriate ratings for all of the knee symptoms throughout the appeal period, and the Board will examine the evidence and consider each Diagnostic Code (DC) under 38 C.F.R. § 4.71a pertinent to the knee and leg as appropriate. Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Diagnostic Code (DC) 5256 pertains to ankylosis of the joint. This regulation was unchanged with the February 2021 amendments. Here, the evidence does not show, and the Veteran has not suggested that either knee joint is ankylosed. Thus, a rating under DC 5256 is not warranted. DC 5257, under the old regulation, allows for a 10 percent rating with recurrent subluxation or lateral instability that is slight; a 20 percent disability rating when moderate, and a 30 percent rating when severe. The amended regulation more specifically provides criteria for both recurrent subluxation or instability and for patellar instability. With recurrent subluxation or instability, a 10 percent rating is warranted when the evidence shows sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation). A 20 percent rating is warranted when one of the following is present (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation), or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker), or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. If the evidence shows patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider or a brace, cane, or walker. A 20 percent rating is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) under the new DC 5257 criteria related to patellar instability indicates that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon; Note (2) indicates a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under DC 5258, dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint is rated as 20 percent disabling. Removal of the semilunar cartilage with symptoms is rated as 10 percent disabling under DC 5259. These regulations were unchanged with the February 2021 amendments. Under DC 5260, limitation of flexion to 60 degrees or more is noncompensably rated; flexion limited to 45 degrees is rated as 10 percent disabling; flexion limited to 30 degrees is rated as 20 percent disabling; and flexion limited to 15 degrees is rated as 30 percent disabling. This regulation was unchanged with the February 2021 amendments. Under DC 5261, limitation of extension to 5 degrees or more is noncompensably rated; extension limited to 10 degrees is rated as 10 percent disabling; extension limited to 15 degrees is rated as 20 percent disabling; extension limited to 20 degrees is rated as 30 percent disabling; extension limited to 30 degrees is rated as 40 percent disabling; and extension limited to 45 degrees is rated as 50 percent disabling. This regulation was unchanged with the February 2021 amendments. DC 5262, under the old rating criteria, allows a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; moderate knee and ankle disability is rated as 20 percent disabling; and marked knee or ankle disability is rated as 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace is rated as 40 percent disabling. The new regulation does not change the criteria for nonunion of the tibia and fibula. However, the regulation is separated into an instruction for malunion of the tibia and fibula and rating criteria for medial tibial stress syndrome (MTSS) or shin splints. For malunion of the tibia and fibula, the new regulation indicates this is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. For MTSS, the new rating criteria indicate a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and a 30 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Under DC 5263, genu recurvatum is rated as 10 percent disabling. This regulation was unchanged with the February 2021 amendments. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The Veteran in this case has disability in both knees; thus, there is no opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the evidence of record in this case, private treatment records dated in March 2011, just prior the Veteran’s claim, show the Veteran was seen after a fall down the stairs and she was observed as having right knee swelling and pain. The physician noted the Veteran’s knee was stable to anterior and posterior stressing. The report indicated she had well maintained knee extension strength, but there were no range of motion findings included in the report. MRI at that time revealed advanced patellofemoral disease, intact menisci, intact ligaments, and some osteophyte formation. A separately submitted March 2011 x-ray report shows minimal degenerative disease in the right knee. The Veteran was then afforded a VA examination in June 2011. X-ray at that time revealed minor osteoarthritis in the right knee, and early narrowing of the medial knee joint compartment with marginal bony spurring in the left knee. She continued to report knee pain in both knees, with the right knee pain greater than the left. She reported being prescribed a knee brace, but that she had not yet gotten it. At this time, the Veteran reported daily exacerbation and flares of pain, which take her to a pain level of 7 out of 10. She reported being able to stand comfortably for several hours and walk at least an hour, but that she has difficulty running and going up and down stairs. The examiner recognized the impact of her disability as causing her to slow down and be unable to participate in the usual customary ambulation from point A to point B with normal speed. Physical examination revealed valgus alignment in both knees, with no effusion in either knee. The examiner noticed increased shoe wear along the medial aspect of the shoe. The knees had no edema, effusion, redness or heat and the Veteran did not have guarding with motion and did not show signs of antalgic gait. Range of motion testing of the right knee revealed motion 0 to 140 degrees with significant crepitus along the patellofemoral joint. The examiner noted there were no signs of decreased range of motion, fatigue, or lack of endurance with repetitive flexion and extension, but there were signs of increased pain. The examiner also noted there was no varus or valgus laxity in the right knee, but there was significant pain and laxity with compression across the patellofemoral joint and the patella was easily subluxable to the lateral aspect of the right knee. The left knee also had motion from 0 to 140 degrees. Repetitive motion resulted in increased crepitus and increased pain, but no change in range of motion, fatigue, or lack of endurance. The left knee had no varus or valgus laxity. In an August 2011 addendum, the examiner confirmed the diagnosis as right and left knee degenerative joint disease as a result of bilateral patellar subluxation. By November 2011, VA treatment records show the Veteran was undergoing physical therapy and was wearing a brace on her right knee. Physical therapy notes indicated, “KNEE ROM: supine 120 degrees flex b/l 5 degrees of hyperextension b/l” and there was an indication of slight increase in laxity on the right, but not pain. Valgus deformity was again noted, but the physical therapist indicated there is no evidence of genu recurvatum during gait. In February 2014, the Veteran was seen for an orthopedic consultation due to her ongoing right knee pain. The report shows the Veteran’s knees were both hyperextended to about 3 to 5 degrees, and her flexion was to 125 degrees, bilaterally. There was no edema to the left knee at this time, but the report shows effusion present on the right. The clinician characterized the Veteran’s right knee has having “chronic knee effusion.” The clinician indicated review of MRI, which showed early degenerative changes. The report also indicated there was evidence of a posterior horn of the medical meniscus, “which is likely a root tear.” This physician indicted the Veteran’s recent diagnosis of diabetes, which made her not a candidate for knee surgery at the time. The notation was made that if her hemoglobin A1c gets down to a normal range, surgery for her knee would be considered at that time. The Veteran continued to report a worsening in her knees. She was again afforded a VA examination in March 2015. This examiner again confirmed the presence of osteoarthritis and patellofemoral pain syndrome in both knees, and also noted a meniscal tear in the right knee. The examiner suggested the right meniscal tear had been diagnosed in 2014. As noted above, the February 2014 note suggests the physician suspected a meniscal tear, but there is no evidence that a tear was actually diagnosed. At this time, the Veteran reported constant, dull, aching bilateral knee pain, rated as a 7 to 9 out of 10. She reported most recently being in physical therapy one year prior. She reported wearing sleeves on both knees; four times per week on the right and two times per week on the left. The Veteran described flares in the morning and with weather changes and prolonged walking or standing. Without medication, she reported the flares lasting three to four hours, and with medication lasting 90 minutes. Range of motion at this time was 0 to 125 degrees, bilaterally. The examiner recognized pain with flexion and pain with weight bearing, bilaterally. Localized tenderness to palpation was also present in both knees. No additional loss of function or range of motion was present after repetitive testing. The examiner found there was no way to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use, because there was no loss of range of motion with repeated testing on this day’s examination. The examiner confirmed there was no ankylosis present in the knees. Joint stability testing revealed no recurrent subluxation or lateral instability in either knee. The Veteran reported functional loss in her knee as including limited sitting, limited standing, standing tolerance, and difficulty getting out of the tub. The examiner confirmed there is a history of recurrent effusion in the right knee as is evidenced by the Veteran’s report of right knee edema after prolonged standing and walking. At the time of her August 2016 Board hearing, the Veteran reported a worsening in her knees. She indicated she trips up the stairs, and feels her balance is off due to her knees. She reported that she was currently in physical therapy and the therapist had recommended adding a brace for the left knee. Given the indication of worsening, the Board then remanded the knee claims in January 2017 for an updated examination. In May 2018, the Veteran again reported her knees were worsening. She indicated her knees had given out on her a few times and she reported not being as active as she would like to be with her family and in her life as a whole. The Veteran was then afforded a VA examination in November 2018. At this time, the Veteran reported constant pain, which flares to a severe (10/10) level if she sits or stands more than 30 minutes. She reported these flares lasting one to two hours. The Veteran also reported her knees continue to give out and cause her to fall; she estimated having fallen 100 times since her knee pain initially began. She also reported her knees lock if she sits too long. She wore soft sleeve knee braces at the time of this examination. The Veteran reported wearing them three times per week. Range of motion at that time was markedly decreased since the prior examination. Flexion was to 60 degrees and extension to -5 degrees, bilaterally. Later in the report, the examiner clarified that both of the Veteran’s knees were slightly hyperextended, which is why extension was listed as -5 instead of 0. This examiner did take active, passive, and weight-bearing measurements. The ranges of motion initially indicated were active range of motion findings. Passive range of motion of -5 to 75 degrees on the right, and -5 to 85 degrees on the left. Weight-bearing range of motion was -5 to 40 degrees, bilaterally. The examiner confirmed that the Veteran experienced pain with all flexion and extension testing and with all types of testing (passive, active, weight-bearing). The examiner also confirmed this pain leads to the limited movement and functional loss such as limits to prolonged standing, walking, and squatting. Tenderness and crepitus were observed all around the knees, bilaterally. The Veteran was able to perform repetitive testing. The examiner noted that pain caused additional limitation of flexion to 50 degrees in both knees after the repetition. The examiner confirmed that the examination results were medically consistent with the Veteran’s statements describing functional loss during flare-ups, but also noted that the Veteran was not experiencing a flare-up at the time of the examination, so measurements during flare-up could not be taken. Joint stability testing again confirmed no instability of either knee joint. The Veteran’s history of knee swelling was noted, but the examiner indicated there was no swelling at the time of the examination. The history of a meniscal tear in the right knee was again reported. The examiner confirmed there had been no surgical repair of this. Throughout the record, the Veteran reported that knee replacement surgery has been suggested, but that her physicians want to delay it as long as possible due to her young age. The examiner summarized the functional limitations due to the Veteran’s knees as limiting walking over a block, limiting prolonged sitting, standing, and squatting, and avoiding stair climbing. The examiner suggested the Veteran should not kneel on her knees or be on ladders. The examiner confirmed that this would limit her ability to work in a physical job, but also confirmed that she could work in a sedentary position as long as she was permitted to get up and move around periodically. Most recently, the Veteran was examined in January 2020. The examiner confirmed there had been no injections, procedures, or surgeries to the knee since the most recent VA examination. The Veteran reported having intermittent bilateral knee pain, popping, swelling and instability. She also reported buckling when walking, but denied giving out or locking. She indicated her knees swell, more on the right than the left, four to five times per week. The examiner indicated the flare-ups were consistent with the Veteran’s history, as described above. Range of motion at this time was measured as 0 to 90 degrees, bilaterally. Pain was again observed with the range of motion testing. This examiner, however, suggested there was no pain with weight-bearing. Tenderness was observed in both knees. Repetitive testing did not yield any additional loss of motion or other functional loss. This examiner estimated the range of motion to be 0 to 70 degrees in the right knee and 0 to 80 degrees in the left knee during a flare-up. Pain and lack of endurance were noted to be what would cause the additional limitation. Functional loss in both knees was described as swelling, instability of station, disturbance of locomotion, and interference with sitting and standing. While no muscle atrophy was observed, this examiner noted slight reduction in muscle strength in both knees on both extension and flexion due to generalized deconditioning of the quadraceps, bilaterally. Joint stability testing was again negative, bilaterally. This examiner found the Veteran to be able to do light to modified medium duty work, avoiding prolonged standing, sitting, or walking. She was to avoid ladders, climbing, repeated squatting and slippery surfaces. She would also need to be allowed to change positions every twenty to thirty minutes. This examiner noted the prior diagnosis of meniscal tear was in error. The examiner explained that the diagnosis was based upon a February 2014 imaging report that showed a possible tear. The examiner referenced and provided a copy of a February 2017 MRI report showing no tear. Clinical records since that examination show the Veteran continuing to be treated for her knees. She was seen at a VA healthcare facility in May 2020 for knee pain and reported her knee had recently given out causing her to fall. Private records in June 2020 show her reporting that she has issues with her knees buckling. She reported her most recent fall as happening in April. She reported she wears her braces several times per week because her knees will give out if she does not wear the braces. Based upon the foregoing, the Board finds no basis for an award under DC 5256 for ankylosis, as no ankylosis is shown. Similarly, there is no indication of dislocated semilunar cartilage or symptomatic removal of semilunar cartilage; thus, ratings under DC 5258 and DC 5259 are not warranted. Likewise, the evidence does not show impairment of the tibia and fibula, or genu recurvatum; thus, ratings under DC 5262 (old or new) and DC 5263 are not warranted. As for limitations of flexion, the Board recognizes the Veteran’s flexion is less than normal; however, at no time has the flexion been limited to 45 degrees or worse, other than the single measurement on weight bearing in November 2018 when flexion was to 40 degrees. However, on that day, when the examiner subsequently conducted repetitive testing, the knee flexion was to 50 degrees. The Board, therefore, finds the single reading does not represent the actual disability level on the day of this examination, given all of the other readings above that level. Moreover, for a rating in excess of the 10 percent already assigned, flexion would need to be limited to 30 degrees, which is undoubtedly not shown in the record. A compensable rating is not warranted under DC 5260. As noted above, the 10 percent rating assigned for each knee is awarded to compensate the Veteran for the pain she experiences in her knees, under 38 C.F.R. § 4.59. Moreover, the Veteran’s extension has not been shown as limited to 10 degrees or worse; thus, a separate rating under DC 5261 is also not warranted. As for the Veteran’s instability, her right knee is recognized as having slight instability and is assigned a separate 10 percent rating under DC 5257 throughout this appeal period. The left knee is not assigned any separate rating for instability. The question is whether there is any indication of moderate or severe instability in the right knee, and whether any level of instability is shown on the left. At the time of the June 2011 VA examination, the right knee was deemed easily subluxable. November 2011 physical therapy notes show the Veteran as having laxity in the right knee and wearing a right knee brace. No instability was explicitly noted at the time of the March 2015 VA examination, although the examiner observed the Veteran as wearing sleeve type braces on both knees at that time. At her August 2016 Board hearing, she described balance issues, stability issues, and falls related to both knees. By the time of May 2018 treatment, she was also reporting both knees giving out. And, at the November 2018 VA examination, she reported both knees giving out causing falls. She was again noted as wearing soft sleeve braces on both knees at that time. The most recent VA examination in January 2020 also included references to buckling, which was described generally as involving both knees. The Board finds that the evidence has not established a moderate level of right knee instability at any time. The instability has been present, but the Veteran reports it as requiring the use of a brace a few times per week. She has reported falling, but not with great frequency. At the November 2018 examination she indicates having fallen approximately 100 times since her knee pain began. Given the Veteran reports knee pain beginning in service, she appears to be describing approximately 100 falls in the more than twenty years since her active service. The Board finds, the level of right knee instability to be slight, but not moderate or severe. As for the left knee, the Board observes that the instability described was limited to the right knee prior to the time of the March 2015 VA examination. It was at this examination that the Veteran was first noted to be wearing soft sleeve braces on both knees. From that point forward, the balance issues, giving out and braces were described as involving both knees. The Board, therefore, finds a separate 10 percent rating is warranted under DC 5257 for the left knee, effective March 22, 2015, the date of that examination, but no earlier. As with the right knee, the Board finds the instability shown to be slight, but not moderate or severe in the left knee; thus, a rating in excess of 10 percent is not warranted. As for the assignment of any increase under the new criteria for instability and subluxation, the Board finds the symptoms shown do not warrant any such ratings because there are no indications of sprain, tear, or surgical repair. While the earlier indication in the record did suggest a possible tear, the more recent VA examiner confirmed that there is no evidence of an actual ligament tear in this case. The Board, therefore, finds a 10 percent rating for the left knee instability under DC 5257 is granted; however, increased ratings for other manifestations of the right and left knee disabilities are denied. As to the claims for ratings in excess of any assigned by the RO or by way of this decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, to that extent, the preponderance of the evidence is against the Veteran’s claims, so that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.