Citation Nr: 21025262 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-13 939 DATE: April 27, 2021 ORDER Entitlement to an evaluation of 20 percent, and no greater, from September 23, 2010, to February 27, 2020, for a lumbar strain disability is granted. Entitlement to an evaluation in excess of 20 percent beginning February 28, 2020, for a lumbar strain disability is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is denied. The reduction of the disability rating for residuals of fracture of the left patella from 10 percent to noncompensable, effective August 5, 2013, was improper, and the 10 percent evaluation is restored. Entitlement to an evaluation in excess of 10 percent for residuals of fracture of the left patella manifesting in limitation of flexion is denied. Entitlement to an evaluation in excess of 10 percent for limitation of extension of the left leg is denied. Entitlement to an evaluation of 10 percent from September 23, 2010, to April 2, 2018, for instability of the left knee is granted. Entitlement to an evaluation of 20 percent beginning April 3, 2018, for instability of the left knee is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Prior to February 28, 2020, the Veteran’s lumbar strain disability manifested in pain, a limitation of flexion of 70 degrees, and flare-ups of symptoms. 2. Beginning February 28, 2020, the Veteran’s lumbar strain disability manifested in pain, muscle spasms resulting in abnormal gait and posture, and a limitation of flexion of 60 degrees. 3. Throughout the period on appeal, the Veteran’s right lower extremity radiculopathy manifested predominantly in mild sensory symptoms. 4. Throughout the period on appeal, the Veteran’s left lower extremity radiculopathy manifested predominantly in mild sensory symptoms. 5. The medical evidence of record after August 5, 2013, does not indicate actual improvement in the Veteran’s ability to function under ordinary conditions of life and work as compared to the medical evidence prior to August 5, 2013 with respect to his left knee flexion/residuals of fracture of the left patella. 6. Throughout the period on appeal, the Veteran’s left knee disability manifested in pain and limitation of flexion to, at most, 125 degrees. 7. Throughout the period on appeal, the Veteran’s left knee disability manifested in limitation of extension to, at most, 10 degrees. 8. From September 23, 2010, through April 2, 2018, the Veteran consistently complained of and sought treatment for a sensation of giving way in his left knee. 9. Beginning April 3, 2018, the Veteran’s left knee instability manifested in a sensation of giving way and occasional falls. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, and no greater, from September 23, 2010 to February 27, 2020, for a lumbar strain disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5237. 2. The criteria for an evaluation in excess of 20 percent beginning February 28, 2020, for a lumbar strain disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5237. 3. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124, 4.124a, Diagnostic Code 8720. 4. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124, 4.124a, Diagnostic Code 8720. 5. The criteria for restoration of a 10 percent evaluation from August 5, 2013, through February 27, 2020, for limitation of flexion of the left knee (also described as residuals of left patella fracture) have been met. 38 U.S.C. § 1155, 5107(b), 5112(b)(6); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5003-5260. 6. The criteria for an evaluation in excess of 10 percent for limitation of flexion of the left knee (also described as residuals of left patella fracture) have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5003-5260. 7. The criteria for an evaluation in excess of 10 percent for limitation of extension of the left knee have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5010-5261. 8. The criteria for an evaluation of 10 percent, and no greater, from September 23, 2010, through April 2, 2018, for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5257 (2020). 9. The criteria for an evaluation of 20 percent, and no greater, beginning April 3, 2018, for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2016. This case was previously before the Board in August 2017 and January 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. In October 2020, the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The undersigned VLJ has considered the October 2016 transcript of the Board hearing as evidence in making this decision. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 1. Entitlement to an evaluation in excess of 10 percent prior to February 28, 2020, and an evaluation in excess of 20 percent thereafter, for a lumbar strain disability The Veteran’s lumbar spine disability is currently rated as 20 percent disabling under Diagnostic Code (DC) 5237 from February 28, 2020, 10 percent disabling from September 23, 2010, and noncompensably prior to that date. The increased rating claim on appeal stems from the September 23, 2010 claim for an increased rating for the Veteran’s service-connected lumbar spine disability. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal fate 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 of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there to be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). At a January 2011 VA examination, the Veteran reported severe flare-ups of the lumbar spine every two to three weeks, lasting for a day or two, precipitated by prolonged walking, standing, and sitting, or bending, twisting, lifting, or carrying. Muscle spasm, pain with motion, and tenderness were noted, which were not noted to cause an abnormal gait or spinal contour. The lumbar spine range of motion was measured to be 70 degrees in flexion; 25 degrees in extension; and 30 degrees in right and left lateral flexion and rotation. Objective evidence of pain was noted on the examination. IVDS was not diagnosed, nor were incapacitating episodes requiring physician-prescribed bedrest noted. In his May 2013 substantive appeal, the Veteran reported an episode of severe back pain, and reported that he experienced limitation of motion whenever he has back pain. He did not provide further detail regarding how his motion is limited during such a flare-up. At an August 2013 VA spine examination, the Veteran did not endorse flare-ups of the lumbar spine. The lumbar spine range of motion was measured to be 80 degrees in flexion; 20 degrees in extension; 25 degrees in right and left lateral flexion; and 30 degrees in right and left lateral rotation. Objective evidence of pain was noted on examination, and the range of motion did not change after three repetitions. IVDS was not diagnosed, nor were incapacitating episodes requiring physician-prescribed bedrest noted. At the October 2016 Board hearing, the Veteran testified that he has difficulty bending forward to pick up items or washing his feet in the shower. He also reported that he can no longer lift heavy grocery items because it aggravates his lumbar spine disability. At an October 2017 VA spine examination, the Veteran reported weekly moderate to severe flare-ups of pain, stiffness, and weakness. The Board notes it previously found this examination to be inadequate with regard to functional loss during flare-ups, as the examiner declined to offer an opinion regarding limitation of motion during flare-ups. The lumbar spine range of motion was measured to be 75 degrees in flexion; 15 degrees in extension; and 25 degrees in right and left lateral flexion and rotation. Objective evidence of pain was noted in flexion and extension, causing functional loss, and the range of motion did not change after three repetitions. Muscle spasm was noted on examination but did not result in abnormal gait or spinal contour. IVDS was diagnosed, but no incapacitating episodes requiring physician-prescribed bedrest were noted. At a February 2020 VA spine examination, the Veteran reported flare-ups of throbbing, achy back pain up to a nine out of ten on the pain scale, which worsened with repetitive bending, twisting, lifting, with prolonged standing and walking, and when attempting high impact activities or heavy lifting. The flare-ups are alleviated with rest, ice and/or heat, and over-the-counter pain relievers. The Veteran reported being unable to lift more than ten pounds without pain. The lumbar spine range of motion was measured to be 60 degrees in flexion; 20 degrees in extension; 25 degrees in right and left lateral flexion; and 15 degrees in right and left lateral rotation. Pain was noted on the examination in all ranges of motion. There was no additional limitation of motion after three repetitions, and the examiner opined there would be no additional limitation of motion during a flare-up. Muscle spasm was noted to cause an antalgic gait and abnormal sitting and standing posture. IVDS was not identified. The Veteran was noted to use a cane occasionally to help alleviate back pain. Ankylosis was not noted at any point during the period on appeal. After careful review of the evidence of record, the Board finds an increase is warranted for the period prior to February 28, 2020. First, the Board notes there is no evidence in the record regarding the severity of the Veteran’s low back disability in the year prior to his claim for an increase filed on September 23, 2010. Therefore, no increase is warranted during that period. Next, from September 23, 2010, to February 27, 2020, the Veteran’s lumbar strain disability is currently assigned a 10 percent evaluation. A 20 percent evaluation is awarded where there is forward flexion of greater than 30 degrees but less than 60 degrees, or muscle spasm or guarding resulting in abnormal gait or spinal contour. Pain was noted throughout this period, as well as occasional muscle spasms. The Veteran was only able to flex to 70 degrees in January 2011, 80 degrees in August 2013, and 75 degrees in October 2017 with the pain. Further, the effects of the Veteran’s flare-ups of pain, stiffness, and weakness were not specifically captured by the examiners. However, the Veteran described difficulty bending forward to pick up items or to wash his feet in the shower, as well as avoiding lifting heavy groceries because this causes a flare-up. The Board finds the limitation of forward flexion in combination with the Veteran’s described functional impairment are better described by the criteria for a 20 percent rating than those for a 10 percent rating. Therefore, after resolving any benefit of reasonable doubt in favor of the Veteran, the Board finds that a 20 percent evaluation, but no higher, is warranted for the period between September 23, 2010, and February 27, 2020. The Board finds, however, that a rating in excess of 20 percent is not warranted at any point during the appeal period. A 40 percent evaluation is assigned where there is favorable ankylosis of the entire thoracolumbar spine, or where there is forward flexion of 30 degrees or less. Although the Veteran reported more severe flare-ups at the February 2020 examination, he was able to flex to 60 degrees, and the examiner opined there would be no additional limitation of motion during a flare-up. This opinion is consistent with the Veteran’s description of his symptoms, which primarily consisted of increased pain during flare-ups or while lifting. The Veteran did not describe any symptoms during flare-ups that approximate ankylosis of the thoracolumbar spine or limitation on flexion such that he would be unable to bend forward more than 30 degrees. Therefore, the Board finds the 20 percent evaluation for the lumbar spine for the entire appeal period is appropriate. Finally, the Board notes that, although IVDS was identified at the October 2017 examination, no episodes of physician-prescribed bedrest were noted, so an evaluation using the IVDS criteria would not result in a higher rating. Likewise, with the February 2021 changes to the spine rating schedule, no higher evaluation is available using the IVDS criteria, as the rating schedule remained the same. Therefore, the Board finds a 20 percent evaluation, but no higher, beginning September 23, 2010, is warranted for the lumbar strain disability and a rating in excess of 20 percent is not warranted at any point during the appeal period. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right and left lower extremities The Veteran’s neurological symptoms of the right and left lower extremities are each currently rated as 10 percent disabling under DC 8720, which considers neuralgia of the sciatic nerve. Neuralgia is usually characterized by a dull and intermittent pain. 38 C.F.R. § 4.124. Neuralgia is on the same scale as incomplete paralysis of the affected nerve, with a maximum rating equal to moderate incomplete paralysis. Id. Mild incomplete paralysis is assigned a 10 percent rating, and moderate incomplete paralysis is assigned a 20 percent rating. 38 C.F.R. § 4.124a, DCs 8520, 8720. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Here, the Veteran was awarded service connection for radiculopathy of the right and left lower extremities effective October 3, 2017, the date of the VA examination on which it was first noted. At the October 2017 VA spine examination, the examiner noted bilateral radicular symptoms involving the sciatic nerve including mild intermittent pain, mild paresthesia, and mild numbness. Muscle strength was all noted to be normal; the Veteran’s knee and ankle reflexes were hypoactive bilaterally, and sensation to light touch was decreased bilaterally in the feet and toes. The examiner opined the radiculopathy was mild and did not note any other signs or symptoms of radiculopathy. The Veteran did not describe the radicular symptoms when discussing the symptoms of his back disability. In April 2019, the Veteran sought treatment at a VA neurology clinic for bilateral foot numbness, tingling, and pain. The Veteran reported occasional pain on palpation or when walking barefoot to certain areas of his feet. He also reported approximately 10 falls in the past year; he reported feeling off-balance when he walks and feeling leg weakness, as though his legs will buckle. The Veteran also complained of severe knee pain. The Veteran was noted to walk with an abnormal gait, stomping his feet and slightly antalgic, which the physician noted was possibly due to the arthritis of the knee. Upon examination, decreased sensation to pinprick and temperature was noted from feet to knee, and full strength in the lower extremities was noted. In November 2019, the Veteran reported pain in his right lower leg for two weeks, describing the pain as different from neuropathy pain. He denied injury or trauma leading to the pain, but reported a fall three months prior. At the February 2020 VA spine examination, the Veteran did not report experiencing any falls due to feelings of leg weakness or any other reason. The examiner did not note constant or intermittent pain, or numbness, but did note mild bilateral paresthesias. Muscle strength, reflex, and sensory testing was all noted to be normal. The examiner did not note any other signs or symptoms of radiculopathy, and the Veteran did not describe the symptoms. After review of the record, the Board finds an increase is not warranted in either of the right or left lower extremity radiculopathy evaluations. Although the October 2017 VA examination noted hypoactive reflex and decreased sensation in the feet, the examiner opined the radiculopathy was mild overall. Throughout the period on appeal, the Veteran’s radiculopathy symptoms have been largely sensory; for example, he reported feeling weakness in his legs, but his muscle strength was consistently measured to be normal. The Board acknowledges the Veteran’s report of falling approximately 10 times in the year prior to April 2019; however, the Board notes that he also complained of knee pain at this time, to which the treating physician attributed the Veteran’s antalgic gait. The Veteran also reported a fall approximately three months prior to November 2019, but sought treatment for pain in the right leg that he described as distinct from neuropathy pain. As the Veteran’s lower extremity muscle strength was consistently noted to be normal, and as the Veteran’s November 2019 report distinguishes the pain from neuropathy symptoms, the Board does not find that these reports of falls alone are sufficient basis to increase the rating for radiculopathy of either lower extremity. Further, the Veteran is now compensated for symptoms of leg buckling and knee instability under DC 5257 for his service-connected left knee disability. See 38 C.F.R. § 4.14 (evaluation of same manifestation of symptoms under different diagnoses is to be avoided). As the record predominantly reflects evidence of mild sensory symptoms, no greater than a 10 percent evaluation is warranted for radiculopathy of each of the Veteran’s right and left lower extremities. 3. Entitlement to increased evaluations for a left knee disability The Veteran is currently in receipt of two evaluations for his left knee disability. Regarding the first evaluation, he was initially awarded a noncompensable evaluation under DC 5003-5260, which was increased to a 10 percent evaluation effective September 23, 2010, decreased to a noncompensable evaluation effective August 5, 2013, and increased again to a 10 percent evaluation effective February 28, 2020. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for osteoarthritis of the left knee due to residuals of a patellar fracture, rated on the basis of limitation of flexion as governed by DC 5260. Under DC 5260, a noncompensable rating is warranted where flexion of the knee is limited to 60 degrees, and a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent disability rating is warranted when flexion is limited to 30 degrees, and a 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5003 further provides that, where the limitation of motion of the joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent will be assigned where a major joint is affected by limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or painful motion. 38 C.F.R. § 4.71a, DC 5003. The knee is a major joint. 38 C.F.R. § 4.45. The Veteran’s second evaluation is a 10 percent rating effective August 5, 2013, under DC 5010-5261, which governs arthritis, and is rated based on limitation of motion of the affected part; here, it is limitation of extension of the knee. Under DC 5261, a noncompensable rating is warranted when extension of the knee is limited to 5 degrees, and a 10 percent disability rating is warranted when extension of the knee is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees, and a 30 percent rating is warranted when extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees, and a 50 percent disability rating is warranted when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. The Board notes the only change to DC 5003 is a change in the title to the code, indicating that the criteria apply to all types of degenerative arthritis rather than just to post-traumatic arthritis. Diagnostic Code 5010 may now be rated as limitation of motion, as before, or as dislocation or other specified instability of the affected joint. Changes were not made to the rating criteria for DCs 5260 or 5261. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Here, the Veteran’s VA treatment records reflect consistent, ongoing complaints of left knee pain, in addition to the specific complaints detailed below. There is no indication in the record the Veteran received any private treatment for his left knee during the period on appeal. At the January 2011 VA knee examination, the Veteran reported pain, stiffness, weakness, and feelings of giving way in the left knee. He also reported weekly severe flare-ups after prolonged walking and standing, squatting, climbing stairs, and lifting or carrying. The Veteran reported being able to stand for 15-30 minutes and to walk one to three miles. He reported occasionally using a cane or a knee brace. The range of motion was measured to be 135 degrees in flexion and zero degrees in extension (a full range of motion in extension). Objective evidence of pain with active motion of the left knee was noted; instability was not noted. In April 2013, the Veteran reported increased knee pain despite taking 800 milligrams of motrin three times a day, and his left knee was noted to be slightly swollen. He was prescribed a narcotic pain reliever. At the August 2013 VA knee examination, the Veteran reported intermittent swelling and a give-way sensation over the left knee, but no locking up of the knee. He did not endorse flare-ups. The Veteran used a cane to support his left knee while walking. The range of motion was measured to be 130 degrees in flexion and ten degrees in extension. Objective evidence of painful motion was noted in both ranges of motion, and the examiner noted weakened movement and excess fatigability as well. The examiner opined there would be no further limitation of motion in the left knee after repeated activity. Stability testing was all normal, with no anterior, posterior, or medial-lateral instability noted. An x-ray was taken in conjunction with this examination, and arthritis in the left knee was noted. In January 2017, the Veteran complained of knee, hip, and leg pain concentrated primarily in his knees. He reported taking ibuprofen for this as well as using capsaicin cream for pain relief. He was again prescribed a narcotic medication for use with breakthrough pain, and lidocaine cream. His VA physician also wrote an order for a consultation for steroid injections in the knees. At the October 2017 VA knee examination, the Veteran reported a progression of pain, stiffness, and weakness. He endorsed flare-ups on a weekly basis consisting of severe pain, stiffness, and weakness. The Board notes it previously found this examination to be inadequate with regard to functional loss during flare-ups, as the examiner declined to offer an opinion regarding limitation of motion during flare-ups. The Veteran reported being limited in prolonged walking, standing, and sitting, squats, climbing stairs, jogging, jumping, and lifting and carrying. The range of motion of the left knee was measured to be 125 degrees in flexion and zero degrees in extension. Pain was noted on both ranges of motion, which caused functional loss. There was moderate tenderness on palpation on the joint line of the left knee. There was no additional loss of range of motion after three repetitions. No history of recurrent subluxation or lateral instability was noted in the left knee, and anterior, posterior, medial, and lateral instability testing was all normal, with no instability noted. The Veteran reported occasional use of a knee brace and regular use of a cane to assist in walking. In February 2018, the Veteran attended the consultation for steroid injections. He reported constant knee pain, worse in the left knee than the right knee, which is worsened by climbing stairs, lifting, and walking or standing for a long time. He reported using his cane more often in the past year. Upon examination, he was noted to have a full range of motion from zero to 135 in both knees, although the physician did not note the precise measurements or indicate how the range of motion was measured. The Veteran received the injections and later reported they helped with the reported knee pain for approximately three months. Also in February 2018, the Veteran attended a physical therapy consultation to strengthen his quadriceps muscles to prevent knee buckling. It was recommended he complete a course of four or five physical therapy sessions as well as hydrotherapy, but the records do not reflect the Veteran undertook this treatment. In December 2018, the Veteran again complained of bilateral knee pain and received steroid injections to both knees again. He did not report any falls. In April 2019, the Veteran sought treatment at a VA neurology clinic for bilateral foot numbness, tingling, and pain. At this visit, the Veteran also reported approximately 10 falls in the past year; he reported feeling off-balance when he walks and feeling leg weakness, as though his legs will buckle. The Veteran also complained of severe knee pain. The Veteran was noted to walk with an abnormal gait, stomping his feet and slightly antalgic, which the physician noted was possibly due to the arthritis of the knee. In November 2019, the Veteran reported an episode of increased left knee pain and associated left hip pain, requiring use of the narcotic pain medication on a daily basis. He denied having experienced a specific injury or trauma leading to the pain, though he reported a fall approximately three months prior. At a follow-up visit the next month, the Veteran reported the episode had largely resolved; the knee pain had decreased significantly and the left hip pain had subsided. In January 2020, the Veteran again attended a physical therapy consult for bilateral knee pain as well as left hip and ankle pain. A plan for four to eight visits every other week was recommended, but the Veteran did not undertake this treatment. At the February 2020 VA knee examination, the Veteran reported constant knee pain at a three out of ten, with intermittent sharp, stabbing knee pain up to nine out of ten. The Veteran reported the pain was worse with squatting, kneeling, stair climbing, prolonged walking, and when attempting high impact activities. He reported not climbing stairs anymore. The range of motion of the left knee was measured to be 125 degrees in flexion and zero degrees in extension. Pain was noted on both ranges of motion, as well as tenderness to palpation over the tibial tubercle, the patellar tendon, and inferior pole of the patella. There was no additional loss of range of motion after three repetitions, and the examiner noted there would be no additional loss after repetitive use or during a flare-up. The examiner did not note a history of recurrent subluxation or lateral instability in the left knee, and anterior, posterior, medial, and lateral instability tests were all normal, with no instability clinically noted. The Veteran reported occasional use of a knee brace and regular use of a cane to assist with walking. No ankylosis or meniscal condition of the left knee was ever noted throughout the period on appeal. After careful review of the evidence of record, the Board finds no increase of the current ratings is warranted during the appeal period, although a separate rating for instability is in order. First, the Board notes there is no evidence in the record regarding the severity of the Veteran’s left knee disability in the year prior to his claim for an increase filed on September 23, 2010. Therefore, no increase is warranted during that period. Next, the Board must address the change in rating under DC 5003-5260 during the period on appeal. Prior to the appeal, the Veteran had been in receipt of a noncompensable rating since May 1969; he was awarded an increase to 10 percent effective September 23, 2010. As the 10 percent evaluation had been in effect for less than five years, VA reduced the rating back to a noncompensable level based upon a reexamination of the left knee disability showing improvement. See 38 C.F.R. § 3.44(c). However, any rating reduction must be based upon review of the entire history of the disability, Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), and must be based upon a thorough examination reflecting an actual improvement in the disability. It must also be determined that the improvement in the disability actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). The Board notes VA met the procedural requirements for a reduction in this instance, because no reduction in total compensation payments was affected. See 38 C.F.R. § 3.105(e). However, the Board does not find that the reduction action was based on an actual improvement in the ability to function under ordinary conditions of life and work. Prior to August 5, 2013, the record reflects the range of motion in flexion to be limited to 135 degrees, with complaints of constant pain as well as flares of pain after prolonged walking and standing, squatting, climbing stairs, and lifting or carrying. An episode of swelling was also noted during this period, and the Veteran was prescribed a narcotic medication for pain relief. From August 5, 2013, to February 27, 2020, the record reflects measurements of flexion limited to 130 degrees and 125 degrees and continued complaints of pain upon prolonged walking, standing, and sitting, squatting, climbing stairs, jogging, jumping, and lifting and carrying. During this period, the Veteran sought treatment for increased knee pain, and was prescribed narcotic medication, capsaicin cream, lidocaine cream, and steroid injections to treat the knee pain. The evidence from the period following the reduction indicates a worsening of the left knee disability’s effect on the Veteran’s ability to function under ordinary conditions, rather than any actual improvement. Therefore, the Board finds the rating reduction was improper, and the 10 percent evaluation is restored for the period from August 5, 2013, through February 27, 2020. Turning back to the question of increased ratings, the Board finds that no increase is warranted in either of the Veteran’s currently assigned left knee evaluations. After the findings made regarding the reduction, the Veteran is in receipt of a 10 percent evaluation based on limitation of flexion due to arthritis under DC 5003-5260 effective September 23, 2010, and a 10 percent evaluation based on limitation of extension due to arthritis under DC 5010-5261 effective August 5, 2013. From September 23, 2010 to August 5, 2013, there is one measurement of the left knee’s range of motion, which was measured to be 135 degrees in flexion and zero degrees in extension at the January 2011 VA examination. Although the Veteran reported stiffness and weakness along with severe flare-ups at that examination, the complaints during this period consist primarily of pain, either constant or exacerbated by activity. The 10 percent evaluation already compensates for painful motion, and the stiffness and weakness described do not appear to amount to functional limitation approximating flexion limited to 30 degrees, which is the criteria for the next highest evaluation under DC 5260. The Board has also considered assigning an additional evaluation for limitation of extension, but the additional limitation noted prior to August 5, 2013, does not approximate a compensable evaluation under the other applicable diagnostic code, DC 5261. Therefore, as the Veteran is compensated for the painful motion noted from September 23, 2010, to August 4, 2013, an evaluation greater than the 10 percent assigned for this period is not warranted. The Board also finds no increase is appropriate for either evaluation during the period from August 5, 2013, to February 27, 2020. At the August 5, 2013, VA examination, the range of motion was measured to be 130 degrees in flexion and ten degrees in extension; at the October 2017 VA examination, the range of motion was measured to be 125 degrees in flexion and zero degrees in extension. The criteria for a 20 percent evaluation under the diagnostic code for limitation of flexion is flexion limited to 30 degrees, and the criteria for a 20 percent evaluation under the diagnostic code for limitation of extension is extension limited to 15 degrees. The Veteran’s range of motion during this period was slightly limited but not to the degree described by criteria for a higher evaluation under either code. Further, the functional limitation described by the Veteran and otherwise noted during this period does not approximate a limitation of flexion and extension of the left knee to 30 and 15 degrees, respectively. The Board has considered here the Veteran’s credible reports at the October 2017 examination of severe pain, stiffness, and weakness during flare-ups, despite having found the examination inadequate to the extent the examiner failed to render an opinion regarding additional limitation of motion during flare-ups. Also noted during this period was needing a cane for support while walking, weakened movement, and excess fatigability. The Veteran reported being limited by pain in prolonged walking, standing, and sitting, as well as activities like climbing stairs, jogging, and jumping, but he did not describe being unable to perform any of these activities. Further, the weakened movement and excess fatigability noted at both examinations during this period, as well as the pain reported throughout, are contemplated under the 10 percent evaluations currently assigned. Therefore, the Board finds the evidence during this period does not describe functional limitation of flexion in the knee limited to 30 degrees or less or of extension limited to 15 degrees or more, so evaluations in excess of 10 percent for flexion and 10 percent for extension are not warranted. As for the period beginning February 28, 2020, the Board notes the Veteran reported more severe flare-ups, with intermittent pain worsening with activity up to a nine out of ten on the pain scale. However, the Veteran’s flexion remained limited to 125 degrees and extension was not limited at all. The Veteran reported not climbing stairs anymore, but did not describe whether he was unable to bend his knees to do so and, if so, under what circumstances, given that he was able to flex the left knee to 125 degrees at the examination. Considering this clinical finding, as well as the examiner’s opinion that the Veteran’s range of motion would not change after repetitive use or during a flare-up, it appears the Veteran’s avoidance of stairs is a measure to prevent experiencing increased pain rather than a physical functional limitation in either flexion or extension caused by the left knee disability. The Board also notes that none of the functional loss noted at the February 2020 examination specifically implicates extension of the knee. Although increased functional limitation was reported at this examination, this limitation is again already compensated under the 10 percent evaluation for limitation of flexion. Therefore, beginning February 28, 2020, no greater than a 10 percent evaluation is warranted either under DC 5003-5260 or under DC 5010 5261. Finally, the Board finds a separate evaluation for instability of the knee is appropriate in this case. Since the January 2011 VA examination, the Veteran consistently complained of a sensation of giving way; further, in February 2018, he attended a physical therapy consultation to prevent knee buckling. As no clinical finding of lateral instability was made at any point during the appeal period, the Board finds no greater than a 10 percent evaluation under DC 5257 is appropriate beginning September 23, 2010. Beginning April 3, 2018, the Board finds a 20 percent evaluation is warranted. This date is one year prior to the Veteran’s report of having fallen approximately ten times in the previous year. The Board finds that consistent complaints of a feeling of weakness and knee buckling, resulting in falls, is a moderate level of instability, warranting a 20 percent evaluation under DC 5257. Again, as no clinical finding of instability was made during the appeal period, the Board finds that a higher rating of 30 percent is not warranted for instability. Diagnostic Code 5257 was among the rating criteria changed effective February 7, 2021; the code now provides for a 30 percent rating for unrepaired or failed repair of a complete ligament tear causing persistent instability where a medical provider prescribes both an assistive device such as cane or walker and a brace for ambulation. The updated criteria also provide for a 30 percent rating for disabilities of the patellofemoral complex that result in recurrent instability after surgical repair that requires a medical prescription for a brace and a cane or walker. However, no higher rating is warranted in this case with the change in criteria. Although the Veteran reported occasional use of a knee brace and cane to assist in walking, which was issued by a VA medical center, the Veteran’s left knee disability is not a complete ligament tear. Rather, it is osteoarthritis of the knee as a residual of a patellar fracture. Disabilities of the patellofemoral complex require instability following surgical repair under the revised regulations in order to qualify for an evaluation higher than 10 percent; the Veteran has not undergone surgery for his left knee disability. As the Veteran does not meet the criteria for an evaluation in excess of 20 percent under the newly implemented regulations, the Board will continue the 20 percent rating under the former DC 5257 criteria. See Kuzma, 341 F.3d at 1328. The Board has considered other diagnostic codes pertaining to the knee, but the record does not reflect evidence of ankylosis or meniscal conditions of the left knee, nor is the Veteran’s left knee disability better described as impairment of the tibia and fibula. Therefore, no higher evaluations are available to the Veteran under different diagnostic criteria. In conclusion, the Board finds that the 10 percent evaluation under DC 5003 5260 for the period from August 5, 2013, through February 27, 2020, is restored; no increases are warranted throughout the appeal period under DCs 5010 5261 and 5003 5260; and a separate rating of 10 percent from September 23, 2010, through April 2, 2018, and of 20 percent beginning April 3, 2018, under DC 5257 is warranted. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. In the most recent remand, the Board found the secondary service connection opinion of record to be inadequate, and directed the RO to obtain an opinion addressing all aspects of the Veteran’s claim. Although the September 2020 VA examiner offered a direct service connection opinion, the examiner did not provide an opinion regarding whether the service-connected left knee disability caused or aggravated the right knee disability. Therefore, another remand is required to obtain an opinion addressing secondary service-connection. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). Moreover, the Board finds the September 2020 VA examiner’s opinion on direct service connection to be inadequate. The examiner supported his negative opinion on direct service connection for the right knee by noting that there is insufficient evidence that the Veteran developed a right knee condition during his military service that became an ongoing concern requiring evaluation and treatment by medical providers. The examiner also supported his negative opinion for the right knee by noting that radiographic evaluations reveal symmetric, bilateral degenerative joint disease in both knees, consistent with age-related changes. The examiner’s rationale for the negative opinion is problematic on two levels. First, there is no requirement that a disability “require evaluation and treatment by medical providers” in order to constitute a disability capable of service connection under VA regulations. Therefore, the examiner’s reliance on lack of evaluation and treatment by medical providers is inappropriate without further explanation for why this lack of documented treatment would weigh against the Veteran’s service connection claim. The rationale is also inadequate because the explanation provided regarding the significance of the radiographic evaluations does not appear to weigh against the claim, but rather, might weigh in favor of the claim. The Veteran is already service connected for a left knee disability based on a left knee injury that was clearly documented in the Veteran’s service treatment records. The Veteran has indicated that he believes his current right knee disability is related to the same injury in service. Therefore, the Board finds is unclear how radiographic evaluations that indicate symmetrical degenerative changes in the Veteran’s knees would weigh against an argument that the Veteran injured his right knee at the same time he injured his left knee in service. The matter is REMANDED for the following action: Obtain an opinion regarding the etiology of the Veteran’s right knee disability from a qualified clinician. If the clinician determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the clinician should opine whether it is at least as likely as not (50 percent or greater probability) that the right knee disability either commenced during or is related to the Veteran’s active duty military service, to include the injury in service that caused the current service-connected left knee disability. The examiner is also asked to opine as to whether it is at least as likely as not that the service-connected left knee disability (a) caused by or (b) aggravated (i.e. worsened beyond the normal progression of the disease) the Veteran’s claimed right knee disability, to include as due to any changes in gait caused by the service connected left knee disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the right knee disability prior to aggravation by the service-connected left knee disability. Please note, causation and aggravation are separate concepts and must be addressed independently. (Continued on the next page)   In providing the requested opinion, the examiner must address the Veteran’s lay statements regarding continuity of symptomatology since onset. The examiner may not dismiss the Veteran’s reports of knee symptoms capable of lay observation solely on the basis that they are not documented in contemporaneous treatment records. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.