Citation Nr: 21025937 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-23 363 DATE: April 29, 2021 ORDER A rating more than 10 percent for right knee arthritis from July 15, 2010 is denied. A rating more than 10 percent for left knee arthritis from July 15, 2010 is denied. A 30 percent rating, but no higher, for right knee instability from July 15, 2010 is granted. A 30 percent rating, but no higher, for left knee instability from July 15, 2010 is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s right knee disability manifested by no more than pain, lack of mobility, severe subluxation and instability, stiffness, an inability to walk long distances, ride a bike, run; and range of motion including flexion limited to 85 degrees, and unlimited extension, no muscle atrophy, ankylosis, or recurrent effusion. 2. During the period on appeal, the Veteran’s left knee disability manifested by no more than pain, lack of mobility, severe subluxation and instability, stiffness, an inability to walk long distances, ride a bike, run; and range of motion including flexion limited to 90 degrees, and unlimited extension, no muscle atrophy, ankylosis, or recurrent effusion. CONCLUSIONS OF LAW 1. The criteria for a rating more than 10 percent for right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010 (2019). 2. The criteria for a rating more than 10 percent for left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010 (2019). 3. The criteria for a 30 percent rating for right knee instability and subluxation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2019). 4. The criteria for a 30 percent rating for left knee instability and subluxation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1979 to August 1992. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 decision of the Houston, Texas, Regional Office (RO). In June 2016, the Veteran was afforded a travel board hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. The Veteran’s appeal was originally before the Board in September 2016 and remanded. In December 2017, the Board denied the claims. The Veteran appealed the Board’s decision to the United States Court of Veterans Claims (Court). In December 2018, the Court granted a joint motion for remand (JMR) which vacated the December 2017 Board decision. In July 2019 and January 2021, the Board again remanded the appeal. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to “staged” ratings to compensate for times since filing the claim (or even during the year prior) when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence 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, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss considering 38 C.F.R. § 4.40, considering any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.1. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize 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. Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. “Pyramiding,” that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In deciding an appeal, 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran filed an application reopen previously-denied claims of service connection for his left and right knee disabilities on July 15, 2010. The RO granted service connection for the claims in the October 2011 rating decision on appeal. The Veteran timely appealed the ratings assigned to both knees to the Board. The current appeal period before the Board is from July 15, 2010, the date of claim. In the October 2011 rating decision, the RO granted 10 percent ratings for the Veteran’s left and right knee arthritis pursuant to 38 C.F.R. § 4.59 Diagnostic Code 5010, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. In the December 2017 Board decision, the Veteran was awarded a separate 10 percent rating for right knee instability under Diagnostic Code 5257. The Board will review the Veteran’s contentions in the context of the following Diagnostic Codes applicable to the knee. Diagnostic Code 5003 provides ratings for degenerative arthritis. Degenerative arthritis, established by X-ray, will be rated based on limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. There are also two relevant note provisions associated with Diagnostic Code 5003. Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. The provisions of Diagnostic Code 5010 have been revised effective February 7, 2021. Under the revised provisions, post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Diagnostic Code 5256 provides ratings for ankylosis of the knee. A 30 percent rating is warranted for a favorable angle in full extension or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted for a knee in flexion between 10 and 20 degrees. A 50 percent rating is warranted for a knee in flexion between 20 and 45 degrees. A 60 percent rating is warranted for a knee in extremely unfavorable flexion, at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Terms such as “slight,” “moderate,” and “severe” are not defined in the regulatory criteria, and the Board must consider their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. The provisions of Diagnostic Code 5257 have been revised effective February 7, 2021. Under the revised provisions recurrent subluxation or instability warrants a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation due to a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation. Additionally, under Diagnostic Code 5257 revised provisions, 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 for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 30 percent rating is warranted for 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. Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5259 provides that a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The provisions of Diagnostic Code 5262 have been revised effective February 7, 2021. Under these revisions a noncompensable rating is warranted for medial tibial stress syndrome (MTSS) or shin splints requiring treatment less than 12 consecutive months, for one or both lower extremities. A 10 percent rating is warranted for treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, for one or both lower extremities. A 20 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, for one lower extremity. A 30 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, for both lower extremities. The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. At an October 2011 knee VA examination, the Veteran reported having flare ups once or twice a week and endorsed symptoms of pain and stiffness in both knees and stated that he could not walk long distances, ride a bike, or run but had no limitation in getting dressed. The Veteran’s initial range of motion measurements included right knee flexion to 120 degrees, with objective evidence of painful motion beginning at 100 degrees and no limitation on extension. Left knee range of motion measurements included flexion to 130 degrees, with no objective evidence of painful motion and no limitation on extension. On repetitive use testing, right knee flexion was limited to 115 degrees and unlimited on extension. Left knee flexion was limited to 130 degrees and unlimited on extension. Pain on movement was noted to be a contributing factor of functional loss in the Veteran’s right knee only. There was pain in the joint line or soft tissue of both knees. Muscle strength was normal in the bilateral knee flexion and extension. Joint stability testing yielded normal findings. There was no evidence or history of recurrent patellar subluxation or dislocation. There were no stress fractures or other tibial or fibular impairment, or meniscus condition. The Veteran underwent surgery in 1999 for the removal of multiple loose bodies and synovial excision on his right knee with no residuals. There were no scars associated with either knee. The Veteran required the regular use of a knee brace and the occasional use of a cane. Diagnostic testing revealed arthritis of the right knee only. There was no evidence of patellar subluxation, fractures, dislocations, or erosions present. The examiner noted the Veteran’s knee disabilities impacted his ability to work as he had increased absences due to knee pain. At a February 2012 VA examination, the Veteran reported that his knees sometimes swell and give way, but reported no locking, catching, subluxation, or dislocations. He reported that he used a brace and cane when he was not working. The Veteran did not report suffering from any flare-ups. The Veteran’s initial range of motion measurements included right knee flexion to 130 degrees, with no objective evidence of painful motion and no limitation on extension. The examiner did not include range of motion measurements for the left knee. On repetitive use testing right knee flexion was limited to 130 degrees and extension was unlimited. The examiner did not include range of motion measurements for the left knee. Less movement than normal was listed as contributing to functional loss. There was no tenderness or pain to palpation for the joint line or soft tissues of either knee. There was no limitation of muscle strength, instability, subluxation, shin splints, stress fractures or other tibial or fibular impairment or meniscal condition. The examiner noted there was a scar associated with the Veteran’s knee that was not painful or unstable or a total area greater than 39 square centimeters. The Veteran required the occasional use of a brace and cane for his knee disabilities. Diagnostic testing failed to reveal any arthritis or evidence of patellar subluxation. The examiner indicated the Veteran’s knees did not impact his ability to work. At a July 2014 VA examination, the Veteran reported chronic anterior knee pain, stiffness, disturbance of locomotion, and swelling. The Veteran did not report any flare-ups. The Veteran’s initial range of motion measurements included right knee flexion to 140 degrees, with objective evidence of painful motion beginning at 120 degrees and no limitation of extension. Left knee range of motion measurements included flexion to 140 degrees, with objective evidence of painful motion beginning at 120 degrees and no limitation of extension. On repetitive use testing, right and left knee flexion and extension was unlimited. Pain on movement, swelling, disturbance of locomotion and interference with sitting were noted to contribute to the functional loss or impairment of the knees. There was no tenderness or pain to palpation for the joint line or soft tissue of either knee. There was no limitation of muscle strength, instability, subluxation, shin splints, and no stress fractures or other tibial or fibular impairment or meniscal condition. The examiner noted there was a scar associated with the Veteran knee that was not painful or unstable or a total area greater than 39 square centimeters. The Veteran required the regular use of a brace and cane for both knees. Diagnostic testing failed to reveal any arthritis or evidence of patellar subluxation. The examiner indicated the Veteran’s knee disabilities did not impact his ability to work. VA and private treatment records reflect the Veteran’s numerous complaints of bilateral knee pain from 2012 through 2021. These records also reflect the Veteran’s reports of knee instability and the consistent use of a knee brace or cane. It was also noted that the Veteran’s left knee flexion was never limited to less than 98 degrees, right knee flexion was never limited to less than 96 degrees and extension was never limited for either knee. At the June 2016 Board hearing, the Veteran stated that he had chronic knee pain in both knees. The Veteran also stated that his right knee would slip out of joint to where he would almost fall to the ground which would occur at most 3 or 4 times a week. The primary result of his disability was lack of mobility, pain, and the occasional collapsing of his right knee. The Veteran also stated that his right knee locked up approximately three to four times a year. The Veteran indicated that he experienced pain in his left knee with going up and down stairs, walking any distances, bending, and sitting for prolonged periods of time and stated that his left knee did not collapse. At the January 2017 knee VA examination, the examiner noted the Veteran had a diagnosis of arthritis since 1988 for both knees. The examiner reported a diagnosis of shin splints but noted shin splints were unrelated to the Veteran’s knee disabilities. The Veteran reported flare ups that were triggered by cold weather, sitting, and driving, and his knees sometimes buckle. The examiner was unable to test initial range of motion in the right knee due to pain but range of motion measurements in the left knee included flexion to 120 degrees and extension was unlimited. The examiner noted tenderness on palpation, pain with weight bearing, and evidence of crepitus. Repetitive use testing was not performed due to pain at rest and non-movement. The examiner did not provide range of motion measurements for the Veteran’s knees on repetitive use over time or during a flare up. The examiner noted instability of station, disturbance of locomotion, and interference with sitting and standing were contributing factors of the disabilities. There was no muscle atrophy, ankylosis, recurrent subluxation, or recurrent effusion. The examiner also noted no anterior, posterior, medial, or lateral instability. The examiner noted the Veteran suffered from “shin splints” and stress fractures that were associated with the Veteran’s right ankle. There was no recurrent patellar dislocation, chronic exertional compartment syndrome, acquired and/or traumatic genu recurvatum or leg length discrepancy or meniscal condition associated with the Veteran’s bilateral knee disabilities. There were no scars indicated on examination. The Veteran required the constant use of a right knee brace and the occasional use of a left knee brace. The Veteran also required the constant use of a cane for both knees for ambulation. Diagnostic testing was not performed. The examiner noted that the Veteran’s knee disabilities impacted his ability to work as he was unable to walk, stand or sit without increased pain or knee buckling with use. There was no evidence of pain with non-weight bearing. Passive range of motion could not be tested on the right knee due to pain and flexion was limited to 120 degrees and extension was unlimited in the left knee with evidence of pain with passive range of motion testing. At a January 2020 knee VA examination, the Veteran was noted to have a diagnosis for right and left knee arthritis. The Veteran reported flare-ups of severe bilateral knee pain occurring multiple times per day for several hours each day with instability. The Veteran’s right knee initial range of motion measurements included flexion limited to 110 degrees and extension was unlimited. Range of motion in the left knee included flexion limited to 120 degrees and extension was unlimited. Pain was noted on both flexion and extension of both knees. There was evidence of pain with weight bearing and crepitus. After repetitive use, the Veteran’s right knee range of motion measurements included flexion limited to 95 degrees and extension was unlimited and left knee flexion was limited to 110 degrees and extension was unlimited. Pain, fatigue, and weakness were noted to contribute to this functional loss. The examiner also noted that pain, fatigue, and weakness also significantly limited functional ability with repeated use. During these periods, the Veteran’s right knee flexion was limited to 90 degrees and extension was unlimited. The Veteran’s left knee flexion was limited to 105 degrees and extension was unlimited. It was further noted that pain, fatigue, and weakness significantly limited functional ability with flare ups. During these times, right knee flexion was limited to 85 degrees and extension was unlimited and left knee flexion was limited to 100 degrees and extension was unlimited. The examiner noted disturbance of locomotion, interference with sitting and interference with standing were additional contributing factors of the Veteran’s disabilities. Muscle strength was with active movement against some resistance on bilateral flexion and extension of the knees. There was no muscle atrophy, ankylosis, history of recurrent subluxation or effusion of the knees. It was noted that the Veteran had slight lateral instability of the right knee. Joint stability testing yielded normal findings. The examiner noted the Veteran had shin splints that did not affect the range of motion of the knee. There was no recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome, acquired and/or traumatic genu recurvatum or leg length discrepancy or meniscal condition associated with the Veteran’s bilateral knee. There were no scars indicated on examination. The Veteran required the occasional use of knee braces. Diagnostic testing revealed arthritis. The Veteran’s knee disabilities were noted to impact his ability to work. There was pain on passive range of motion and non-weight bearing associated with both knees. At the February 2021 knee VA examination, the Veteran reported bilateral knee swelling, popping and “locked” knees. Flare up of the knees were noted as occurring weekly that were moderate to severe and lasting up to a few hours. It was noted that the Veteran’s knee disabilities produced difficulty in climbing stairs, prolonged walking, bicycling and pain in certain sleep positions. The Veteran’s right knee initial range of motion measurements included flexion limited to 95 degrees and extension was unlimited. Range of motion in the left knee included flexion limited to 105 degrees and extension was unlimited. Pain was noted on flexion of both knees. There was evidence of pain with weight bearing. There was no evidence of crepitus. After repetitive use, there was no additional loss of function or range of motion for either knee. Pain was noted to significantly limit functional ability with repeated use over time. During these periods, the Veteran’s right knee flexion was limited to 85 degrees and extension was unlimited. The Veteran’s left knee flexion was limited to 95 degrees and extension was unlimited. The examiner also noted that pain significantly limited functional ability with flare ups. During these times, right knee flexion was limited to 85 degrees and extension was unlimited and left knee flexion was limited to 95 degrees and extension was unlimited. The examiner noted there were no additional contributing factors of the Veteran’s disabilities. Muscle strength was normal on bilateral flexion and extension of the knees. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, or effusion of the knees. Joint stability testing yielded normal findings. The examiner noted there was no recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, acquired and/or traumatic genu recurvatum or leg length discrepancy or meniscal condition associated with the Veteran’s bilateral knee. There were no scars indicated on examination. The Veteran required the regular use of a cane. Diagnostic testing revealed arthritis. The Veteran’s knee disabilities were noted to impact his ability to work. There was pain on passive range of motion and non-weight bearing associated with both knees. Right and Left Knee Arthritis Given these facts and consideration of both the previous and revised diagnostic codes associated with the Veteran’s knees, the Board finds that a rating more than 10 percent for the Veteran’s right and left knee arthritis is not warranted during the period on appeal. A 10 percent rating is the maximum available under Diagnostic Code 5010 (2019). A 20 percent rating is not warranted under Diagnostic Code 5260 unless flexion is limited 30 degrees or less. A 20 percent rating is not warranted under Diagnostic Code 5261 unless extension is limited to 15 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code(s) 5260, 5261. There is no indication in any of the Veteran’s treatment records or examinations that he has ever had impairment of flexion to 30 degrees or extension to 15 degrees, even when painful motion, flare ups, and other types of impairment are taken into consideration. The Veteran would be entitled to a rating under Diagnostic Codes 5260 and 5261 instead of Diagnostic Code 5010 if his range of motion warranted a compensable rating, however, since the Veteran’s range of motion is noncompensable it is more beneficial to rate the Veteran under the previous provisions of Diagnostic Code 5010 instead of the revised provisions. The Board has further considered other applicable diagnostic codes associated with the knee. However, medical treatment records did not reveal the Veteran had ankylosis of the knees (Diagnostic Code 5256), a dislocated semilunar cartilage (Diagnostic Code 5258), removal of symptomatic semilunar cartilage (Diagnostic Code 5259), a tibia or fibular impairment (Diagnostic Code 5262) or genu recurvatum (Diagnostic Code 5263) associated with his knees. Because of this, separate ratings under these diagnostic codes are not warranted. Right and Left Knee Instability The Board finds the Veteran is entitled to a 30 percent rating under the previous provisions of Diagnostic Code 5257 for right knee severe instability and subluxation. As mentioned above, under the previous provisions of Diagnostic Code 5257 for recurrent subluxation or lateral instability, slight disability warrants a 10 percent rating, moderate disability warrants a 20 percent rating and severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). The terms such as “slight,” “moderate,” and “severe” are not defined in the regulatory criteria, and the Board must consider their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. After review of all evidence, the Board finds that the Veteran’s right knee instability was manifested by severe instability due to the lay assertions found throughout the appeal period concerning the Veteran’s numerous near falls and “knee giving out.” The Board finds it is equitable and just to equate the Veteran’s reports to a severe level of disability warranting a 30 percent rating. The Veteran is also entitled to a separate 30 percent evaluation under Diagnostic Code 5257, for his left knee, for severe instability and subluxation. The record contains numerous reports of the Veteran’s knees “giving out,” or note knee instability. The Board has resolved the benefit of the doubt in the Veteran’s favor and found that he has had instability of the left knee at a severe level. The Board has also considered the revised provisions of Diagnostic Code 5257 however, the evidence does not show an unrepaired or failed repair of a complete ligament tear or a diagnosed condition involving the patellofemoral complex. Thus, the previous provisions of Diagnostic Code 5257 are more beneficial to the Veteran. In summary, throughout the entire period on appeal, a rating more than 10 percent for right and left knee disabilities has not been demonstrated. Throughout the entire period on appeal, a disability rating of 30 percent, but no higher, for right and left knee instability has been demonstrated. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.