Citation Nr: 21024851 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-14 409 DATE: April 26, 2021 ORDER A rating of 40 percent is granted for intervertebral disc syndrome (IVDS) with degenerative arthritis of the spine and ankylosing spondylitis for the period on appeal prior to October 1, 2020. A rating in excess of 40 percent is denied for IVDS with degenerative arthritis of the spine and ankylosing spondylitis at all times relevant to the appeal. A rating in excess of 10 percent for osteoarthritis, left knee, is denied. A rating in excess of 10 percent for osteoarthritis, right knee, is denied. FINDINGS OF FACT 1. At all times relevant to the period on appeal prior to October 1, 2020, the Veteran’s IVDS with degenerative arthritis of the spine and ankylosing spondylitis (IVDS) was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less and there were no incapacitating episodes of IVDS. 2. At no time during the period on appeal has the Veteran’s IVDS been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, there have been no incapacitating episodes of IVDS and there is no evidence to suggest the functional equivalent of ankylosis. 3. Osteoarthritis left knee is manifest by pain on motion with flexion at worst to 90 degrees, thus better than 45 degrees, and full extension to 0 degrees, thus better than 5 degrees. There is no lateral instability or recurrent subluxation, no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, no nonunion or malunion of tibia and fibula or ankylosis, and there has not been semilunar cartilage removal, symptomatic. 4. Osteoarthritis right knee is manifest by pain on motion with flexion reduced to 100 degrees during flare-ups, thus better than 45 degrees, and full extension to 0 degrees, thus better than 5 degrees. There is no lateral instability or recurrent subluxation, no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint or ankylosis and there has not been semilunar cartilage removal, symptomatic. There is patellofemoral pain syndrome, but no patellar instability. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for the Veteran’s IVDS have been met for the entire period on appeal prior to October 1, 2020. 38 U.S.C. § 1155; 38 C.F.R. Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5240-5243. 2. The criteria for a 40 percent rating for the Veteran’s IVDS have not been met at any time relevant to the appeal. 38 U.S.C. § 1155; 38 C.F.R. Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5240-5243. 3. The criteria for a disability rating in excess of 10 percent for osteoarthritis left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. 4. The criteria for a disability rating in excess of 10 percent for osteoarthritis right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to July 1995. This matter is before the Board on appeal from rating decisions of the RO. In February 2020, the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concepts of increased ratings; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The actions of the VLJ comply with 38 C.F.R. § 3.103. At the hearing, the Veteran argued that the service-connected knee disabilities should be rated higher, based on reduced range of motion and instability. It was also his argument that the low back disorder, then characterized as thoracolumbar strain and rated 10 percent disabling, should be also rated higher based on reduced range of motion. He urged that the conditions had worsened since the most recent examinations. See Hearing Transcript. The matters were remanded to the Agency of Original Jurisdiction (AOJ) in June 2020 for examinations. They have been returned to the Board. While at the AOJ, the low back disability was recharacterized as IVDS with degenerative arthritis of the spine and ankylosing spondylitis, and the rating was increased from 10 to 40 percent effective from October 1, 2020 based on reduced range of motion (forward flexion) as opposed to incapacitating episodes of IVDS. In addition, service connection and 10 percent ratings were awarded for associated radiculopathy, left lower extremity, femoral nerve and associated radiculopathy, left lower extremity, sciatic nerve. The Veteran has not appealed the awards as to the left lower extremity radiculopathies, and they are not part of this appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran testified that increased pain and limited range of motion from his back and knee disabilities made it difficult for him to get out of bed every morning. He also stated that he was now suffering from instability of the knees. He contends that the manifestations of the disabilities have caused him to miss over 30 days of work this year. Here, we note that recent VA treatment and examination records unequivocally show that the Veteran remains employed full time in the field of disability claims with the Social Security Administration (SSA). He explained in November 2019 that he works at the SSA hearing office preparing cases for judges, as a clerk. He talks with doctors and lawyers and hospitals. He enjoys his job. He holds himself and others to a pretty high standard. He reported in August 2020 that he was working from home and applying for promotion. 1. A rating of 40 percent is granted for IVDS with degenerative arthritis of the spine and ankylosing spondylitis for the period on appeal prior to October 1, 2020. 2. A rating in excess of 40 percent is denied for IVDS with degenerative arthritis of the spine and ankylosing spondylitis at all times relevant to the period on appeal. At the outset, we note that there has been a change in the actual diagnosis of this disorder as reflected in the October 2020 VA examination report. The VA examiner explained that the new diagnosis is IVDS, and degenerative arthritis of spine, ankylosing spondylitis. It was explained that the new diagnosis is a progression of the previous diagnosis. The rationale was that IVDS, also known as a bulging or herniated disc, is a back condition that involves the irritation of the nerve root and causes sharp, chronic pain. Additional symptoms of IVDS can include numbness or tingling in the lower extremities, and weakness. Lumbosacral or cervical strain is an injury of the ligaments, tendons and/or muscles of the low back or neck, respectively. The injury usually results from stretching that causes a small tear in these tissues. Lumbosacral and cervical strain are typically caused by overuse and trauma and degenerative arthritis of spine. Pain is a very common symptom of lumbosacral and cervical strain, as well as trouble bending or having limited range of motion. Ankylosing spondylitis has no known specific cause, though genetic factors seem to be involved. Also, people who have thoracolumbar strain can develops likely Ankylosing spondylitis over the time. We find this medical opinion to be well-supported and thoroughly explained, and entitled to the most probative weight in determining the manifestations of the disability at issue. As a result, we will now address all of the manifestations of the lumbosacral spine condition for the purpose of rating this disability. The disability is rated under DCs 5243 (IVDS) and 5240 (ankylosing spondylitis) pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. Although DC 5243 corresponds to IVDS, there are no incapacitating episodes of IVDS shown on the August 2015 or October 2020 VA spine examinations nor in the treatment record and the Veteran has urged that a higher rating is in order based on limited flexion, not asserting there are incapacitating episodes as defined in the rating schedule. Specifically, incapacitating episodes are defined in Note 1 of the regulation as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The instant ratings are thus based on limited motion according to the general schedule for the spine, as this results in the higher evaluation. See (1) August 2015 rating decision reflecting the 10 percent rating has been based on combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and painful motion; (2) October 2020 rating decision reflecting the 40 percent rating has been based on forward flexion of the thoracolumbar spine to 30 degrees or less. According to the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5240, 5243 (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). VA regulations define normal range of motion of the thoracolumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243. Initially, the Board notes that there are no associated objective neurological abnormalities not already rated at any time throughout the period on appeal. For the following reasons, a 40 percent rating is warranted for the entire period on appeal prior to October 1, 2020, as the manifestations more nearly approximate forward flexion limited to 30 degrees or less. However, a rating in excess of 40 percent is not shown or approximated at any time relevant to the appeal, as there is no showing of unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, and again there have been no incapacitating episodes of IVDS. Nor is there any suggestion in the record of the functional equivalent of ankylosis as discussed in Chavis v. McDonough, No. 18-2928, slip op. (U.S. Vet. App. Apr. 16, 2021). As to the period on appeal prior to October 1, 2020, an August 6, 2015 VA examination report reflects forward flexion to 90 degrees, extension to 30 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 30 degrees. There was pain on motion but there were no reported flare-ups and there was no additional loss of range of motion on repetitive use. The Veteran reported mid and low back pain occasionally radiating down his hamstring to his popliteal fossa associated with sitting or standing 15 minutes, forward bending, lifting and/carrying 25 pounds. The examiner opined that the back condition precluded him from an occupation requiring constant, uninterrupted sitting or protracted standing, forward bending, or lifting and/carrying heavy loads. Relative to this condition alone, given appropriate accommodations such as frequent breaks as necessary, however, the Veteran could nonetheless be reasonably expected to function in a sedentary capacity. However, an earlier VA examination, in November 2014, reflects range of motion of forward flexion to 20 degrees, extension to 15 degrees, bilateral flexion and rotation to 30 degrees, clearly more limited range of motion than in the August 2015 examination. Still earlier exams show a diverse range of motion, with forward flexion noted as limited to 20 to 30 degrees at times but also to 70 degrees at other times. Nonetheless, it is universally noted that during flare-ups his pain is severe and limits his forward flexion significantly. Treatment records during the period prior to the October 1, 2020 VA examination reflect continued complaints of back pain with limited ability to forward bend due to pain. They are consistent with the greater degree of limitation. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). See DeLuca. This was accomplished in the 2020 examination. For the period prior to October 1, 2020, the Veteran described his pain of the thoracolumbar spine as noted above, and the functional impact described is consistent with forward flexion limited to 30 degrees. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. In sum, as to the period prior to October 1, 2020, the record reflects a disorder that waxes and wanes but that the overall level is consistent with a 40 percent rating based on limited forward flexion. The October 2020 VA examination reflects that the criteria for a 40 percent rating are clearly met. Forward flexion of the thoracolumbar spine is limited to 5 degrees. Current symptom were stiffness, pain, and decreased range of motion of the spine inflammatory back pain, also noted were pain and morning stiffness of the spine and sacral areas with or without accompanying inflammation in other joints, tendons, and organs. Treatment was “Gabapentin 400mg 2 cap 3x a day, steroid injection for last few years related to pain management program by VA, PT session once week, ice pack, heating pad and vibrating chairs for massages. Flare-ups were once a week in mid back and lower back daily with a severity of 10 out of 10 and a duration of 3 days. There was constant use of a brace. He had no ankylosis or noted neurological abnormalities. The functional loss assessment in the October 2020 exam noted that he worked at SSA and lost 2-4 weeks work time in last 12 months. The IVDS produced stiffness, pain, and decreased range of motion of the spine was characteristic of the inflammatory back pain of ankylosing spondylitis. Arthritis of the spine was manifested by pain and morning stiffness of the spine and sacral areas with or without accompanying inflammation in other joints, tendons, and organs. The lumbosacral strain affects doing activities such as turning, twisting, walking, bending, running. Radiculopathy of the left lower extremity caused sharp pain in the back with difficulty extending to the foot at works. There is objective evidence of pain when the spine is non-weight bearing. Passive range of motion of the spine was not performed as it was not feasible to do this in a safe and reasonable manner. The treatment record for the entire period on appeal is not inconsistent with the October 2020 VA examiner’s estimate of limited forward flexion. We also note that the symptoms and manifestations described at the hearing before the undersigned are consistent with the findings on the 2020 examination. We conclude that functionally the Veteran has been limited to forward flexion of the thoracolumbar spine to 30 degrees at all times during the appeal period. However, the criteria for a higher rating are not met or approximated, as there is no unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Such was noted as not present in the 2020 examination report and the treatment records are not inconsistent with this finding. Also, nothing suggests the functional equivalent of ankylosis. The Board is again mindful of the Veteran’s assertions as to pain and that, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). However, the appellant is in receipt of the maximum evaluation for limitation of motion for this time period. In fact, the higher evaluation would be consistent with no appreciable motion; further discussion would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). It is undisputed that the treatment records, as well as his presence at the 2020 examination, reflect that he retains range of motion and does not demonstrate no appreciable motion. Moreover, the General Rating Formula for the spine is used to rate spine disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected. His complaints of pain and limited motion are consistent with his 40 percent rating from August 7, 2015. Accordingly, a 40 percent rating adequately represents any functional impairment attributable to the disability throughout the appeal. See 38 C.F.R. §§ 4.41, 4.10. The preponderance of the evidence is against a rating in excess of 40 percent. Hart v. Mansfield, 21 Vet. App. 505 (2007). While we note that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, these changes would not result in any higher ratings for this disability. The relevant criteria, the General Rating Formula for Diseases and Injuries of the Spine remained substantively unchanged with regard to the specific disability in this case. 1. A rating in excess of 10 percent for osteoarthritis, left knee, is denied. 2. A rating in excess of 10 percent for osteoarthritis, right knee, is denied Each knee is rated 10 percent under DCs 5003, representing degenerative arthritis, and 5260, for limitation of flexion of the leg under the Schedule of Ratings – musculoskeletal system, with consideration of painful motion, effective from July 2014. 38 C.F.R. §§ 4.59, 4.71a. The Veteran seeks a higher rating for each knee. Again, the claims were remanded by the Board based in large part on the testimony that there was a perceived worsening since the then most recent VA examination dated in December 2016. The examination was performed in October 2020, is thorough and includes all data required to rate the knee issues. It is considered wholly consistent with the treatment record as to degree of disability throughout the rating period. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 September 17, 2004). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. Each knee is rated 10 percent disabling under DC 5260 consistent with 38 C.F.R. § 4.59, providing for a compensable rating for painful motion that does not meet the criteria for a minimum rating based on limitation of motion under DCs 5260 or 5261. The current evaluation for each knee contemplates pain on motion and would be consistent with limitation of flexion to 45 degrees. To warrant a higher evaluation for either knee, the disorder must approximate the functional equivalent of limitation of flexion to 30 degrees. 38 C.F.R. § 4.7. Separate evaluations may be assigned for compensable limitation of extension, instability, subluxation or meniscus impairment. As discussed below, the preponderance of the evidence is against a higher rating for the right or left knee disability. A review of the record reflects that the earlier VA examination in December 2016 which showed range of motion of both knees of 0 degrees extension to 135 out of 140 degrees flexion. There was no additional functional loss of range of motion after three repetitions or over time. No flare-ups were reported. There was no ankylosis nor was there recurrent subluxation or a history of lateral instability. The Veteran estimated daily bilateral knee pain since 2016 of 7 to 9 out of 10. No knee surgeries had been advised and X-rays showed very mild bilateral degenerative joint disease. There were no meniscal conditions. We note that a September 2019 VA treatment record reflects active range of motion of 90 degrees flexion on left and 100 degrees on the right. The October 2020 VA examination reflects that the current knee disabilities included bilateral knee strain and tendonitis/tendinosis and arthritis, as well as right knee meniscal tear and patellofemoral pain syndrome. There had been no knee cartilage restoration surgery and there were no shin splints. The Veteran reported his life had been unstable for last 18 months with pain worse in both knees and limited mobility. He reported he cannot perform the activities used to and also reported difficulty in doing all ADLS. He reported he cannot bear weight on both knees and feels as if knee is unstable (give out). Sometimes he has marked knee swelling and most of the time he is unable to fully extend or flex his knees. Current symptoms included tenderness and decreased range of motion of the both knees, pain and morning stiffness of the both knees with or without accompanying inflammation in other joints, tendons, and organs, and numbness and tingling in both knees. Current treatment was Gabapentin 400mg 2 capsule 3 times a day, steroid injection for last few years related to pain management program by VA, PT session once week, ice pack, heating pad and vibrating chairs for massages. Flare ups in the right and left knee were described as sharp pain radiating to lower leg, limping, muscles spasm, and numbing dull pain sometimes. He reported crawling to bathroom as well as lying down in bed all day with a frequency of once a week and with severity of pain level described a 10 out of 10 for a duration of 3 days. Flexion was initially to 115 degrees but was reduced to 100 degrees during flare-ups bilaterally. Extension was to 0. Clearly, a rating in excess of 10 percent is not met or approximated based on these ranges of motion as flexion remains well in excess of that required for a higher rating and extension remains normal. Also, while there is meniscal tear on the right, there was no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, so he does not meet or approximate the criteria for a 20 percent rating under DC 5258. Additionally, removal of semilunar cartilage, symptomatic, to warrant a separate 10 percent rating under DC 5259, is not present. There is no credible evidence of lateral instability or recurrent subluxation either, relevant to DC 5257. There was no instability on the examination. There is no ankylosis relevant to DC 5256. Pain was noted on exam but did not result in/cause functional loss that would support a rating higher than that already assigned based on painful motion. Lack of mobility, weakness, fatigue, lack of coordination and lack of endurances resulted in the current manifestations supporting the 10 percent rating bilaterally consistent with 38 C.F.R. §§ 4.40, 4.45, 4.59. He reported he uses braces regularly. There was occupational impact, though he continued at his SSA job. The impact was 0-1 week work time lost in last 12 months. The torn meniscus produced difficulty extending the knee, and the pain often is worse during twisting or squatting motions. The knee arthritis caused pain at night, so he reported he is sleepy at work. Swelling or stiffness sometimes make it difficult to bend and straighten the knee. Patellar pain syndromes produced pain with jumping, running, or walking. Knee tendonitis resulted in significant pain with jumping or kneeling. Knee strain resulted in lack of flexibility or strength resulting in difficulty standing and walking. There was evidence of pain on passive range of motion testing of the knees as well as on non-weight bearing testing of the knees. The examiner stated that torn meniscus, knees osteoarthritis, patellar pain syndromes, knee tendonitis and knee strain are new diagnoses, related to bilateral knee arthritis occurring when both knees are affected with overuse. Osteoarthritis is a painful, degenerative condition that can reduce mobility and make daily tasks difficult to manage. Early diagnosis and treatment may decrease joint damage and improve overall quality of life. But the Veteran's poor control of arthritis created the new diagnoses. The Veteran does not meet the criteria for a higher rating based on any objective criteria in the schedule or ratings for either knee. VA examination in 2020 as well as the 2019 treatment record reflects that the Veteran’s range of motion is in excess of flexion and extension which would warrant a higher rating. There was no ligament instability or recurrent subluxation, dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, and no symptomatic semilunar cartilage has been removed. Pain on weight bearing, passive and active range of motion, and painful motion in general, are considered consistent with the current 10 percent ratings that have been assigned despite flexion in excess of that listed for a 10 percent rating under DC 5260 even during flare-ups. There was no ankylosis.   Consistent with DeLuca, the Board has considered the Veteran’s functional impairment in assessing the limitation of motion in this claim, again considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim. The flare-ups described by him and noted by the examiner are found by the Board to be consistent with and accurately compensated by his 10 percent ratings based on painful motion for each knee. Again, no credible evidence suggests that extension is limited or that flexion is less than 45 degrees; there is no suggestion in his description or in the medical records that flexion is limited to 30 degrees. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, we find that the observations of skilled examiners are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment. To the extent there is an assertion of instability, such is less credible than the medical evidence in the record. While we note again that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, these changes do not result in any higher or separate ratings for the knee disabilities. To the extent that some of the criteria for the Knee and the Leg ratings have changed, the manifestations   present and discussed below do not support higher or additional ratings under any criteria. There remains no basis for an increased rating as there is no instability as established by the most probative evidence, the VA examinations. Thus, there is no patellofemoral complex with recurrent instability (with or without history of surgical repair) nor is there sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability. In conclusion, for the reasons set forth above, for either the right or left knee disability, a rating in excess of 10 percent is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.