Citation Nr: 21027067 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 95-04 263 DATE: May 4, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of a neck injury with spondylosis and degenerative joint disease (neck disorder) is denied. Entitlement to an initial disability rating in excess of 10 percent for traumatic arthritis of the left knee (left knee disorder) is denied. Entitlement to an initial disability rating in excess of 10 percent for traumatic arthritis of the right knee with painful limitation of motion (right knee disorder) is denied. FINDINGS OF FACT 1. The Veteran's neck disorder is manifest by forward flexion to 25 degrees, and did not result in unfavorable ankylosis of the entire cervical spine. 2. The Veteran's left knee disorder is manifest by pain and limited range of motion; the evidence does not show moderate instability, diagnosed condition involving the patellofemoral complex, or ligament tear. 3. The Veteran's right knee disorder is manifest by pain and limited range of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for neck disorder have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5290. 2. The criteria for a rating in excess of 10 percent for left knee disorder have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5257. 3. The criteria for a rating in excess of 10 percent for right knee disorder have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1970 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 1994 and April 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, in an October 1994 rating decision, service connection was granted for arthritis of the knees and residuals of a compression fracture of the cervical spine. The Veteran appealed the decision which subsequently led to an August 1996 Board decision that granted a 20 percent rating for the neck disorder, and denied initial disability rating in excess of 10 percent for the knees. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 1997 memorandum decision, the Court vacated the Board's decision as to the appealed issues and remanded the matter for further development. A June 1998 Board decision remanded the matters for development consistent with the Court decision. In a June 1999 rating decision, a 30 percent rating for the neck disorder was granted effective February 3, 1994. In March 2003, the Board again remanded the matters for additional development. In February 2009, the Board denied entitlement to a rating in excess of 30 percent for neck disorder, and the Veteran did not file an appeal to the Court on this issue. In the same decision, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for the knees. In a February 2009 report of contact, the Veteran noted that he still sought a higher rating for residuals of the neck disorder. An April 2010 rating decision continued to deny higher ratings for the knees and neck disorder, and the Veteran filed a notice of disagreement in December 2010. An April 2012 supplemental statement of the case (SSOC) was issued concerning the knees, and a February 2014 statement of the case (SOC) was issued concerning the neck disorder. In his March 2014 substantive appeal, the Veteran limited his appeal to the issue of entitlement to a TDIU. In April 2014, the RO disregarded the Veteran's appeal and certified the issues of entitlement to an increased rating for the neck disorder. In September 2014, the Board remanded the issue of initial higher rating for the knees to the AOJ for additional development. Although it was part of the introduction to the September 2014 remand that the issue of the neck disorder was not before the Board, the Court has required that the Board decide the issues certified by the RO after the issuance of the statement of the case. Percy v. Shinseki, 23 Vet. App. 37 (2009). In September 2015 and August 2017, the Board remanded the issue of increased rating for the neck disorder and left knee disorder for additional development. Further, in July 2018 and November 2020, the Board again remanded all the issues for additional development, and they have since returned for further appellate review. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). 1. Neck Disorder This appeal stems from a claim dated in February 2009. The Board notes that for the period prior to February 2009, the Board denied that appeal period in its February 2009 decision for which the Veteran did not submit an appeal. The Veteran's neck disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5290. Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5290. A 30 percent rating was warranted for severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5290. This represents the highest schedular rating available for limitation of motion of the cervical spine. As of September 26, 2003, the schedule for rating spine disabilities was changed to provide for the rating of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). As the appeal period falls under the current rating criteria, the Board will apply the current rating criteria with regards to the Veteran's neck disorder claim for higher rating. Regulations specify that disabilities of the spine should be evaluated under the Spinal Formula. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When IVDS is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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. As relevant to the cervical spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., Note (5). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. The Veteran underwent VA examination in March 2010. The Veteran reported limitation in walking because of his spine, and on average, can walk 50 feet and takes about 5 minutes. He reported experiencing falls and symptoms such as stiffness, fatigue, spasms, and decreased motion. He does not experience paresthesia and numbness. He reported weakness of the spine, bowel problems, obstipation, erectile dysfunction, and bladder problems. The pain in the neck occurs about 10 times per day, last about 0.25 hours, and moderate in severity. The pain travels to his shoulder and down his back, and can be exacerbated by physical activity. During flare-ups, the Veteran experiences functional impairment, which is described as pain, stiffness, popping, cracking, aching muscles, and limitation of motion of the joint which is described as hard to turn. In the past 12 months, the Veteran reported no incapacitation. Overall, the Veteran reported functional impairment described as hard to function because of mobility, discomfort, stiffness, and pain. Upon physical examination, the examiner noted no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone, and atrophy of the limbs. There was no ankylosis of the cervical spine. Range of motion testing was performed and showed, at worst, forward flexion to 30 degrees and a combined range of motion no less than 210 degrees. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. During a neurological examination, the cervical spine revealed no sensory deficits, no motor weakness, non-organic physical signs, and no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. The Veteran underwent a VA examination in May 2019. The Veteran reported 5 out of 10 dull constant pain and stiffness in his cervical spine. He reported experiencing occasional popping and grinding sensation, and occasional numbness and tingling in his bilateral upper extremities. The Veteran did not report flare-ups, and described functional loss as difficulty looking up at the ceiling and turning his neck to the left or right. Upon physical examination, range of motion testing was performed and showed, at worse, forward flexion to 30 degrees and a combine range of motion no less than 235 degrees with pain. Observed repetitive use testing did not result in additional loss of function. The Veteran was not examined after repetitive use over time, and the examiner could not describe the range of motion. Guarding was found but did not result in abnormal gait or abnormal spinal contour. Ankylosis of the spine was not found, and other neurological abnormalities was not found. IVDS was not shown. It was noted that the Veteran did not use assistive devices. The Veteran was afforded another VA examination in January 2021. The Veteran reported symptoms such as cracking, popping, stiffness, pain, numbness, and tingling that goes to both pinky fingers. The Veteran reported moderate flare-ups described as increased pain that lead to 6 sessions of physical therapy. The Veteran reported that he was waiting for more physical therapy sessions. Functional impairment was described by the Veteran as the need to prop neck up with hand due to soreness and difficulty holding neck up anymore. The Veteran reported inability to turn the neck all the way. Range of motion testing was performed and showed, at worst, forward flexion to 35 degrees and a combined range of motion no less than 270 degrees with pain and moderate tenderness on palpation. Observed repetitive use did not result in addition loss of function. With repetitive use testing, range of motion testing was performed and showed, at worst, forward flexion to 25 degrees and a combined range of motion no less than 210 degrees. With flare-ups, range of motion testing was performed and showed, at worst, forward flexion to 35 degrees and a combined range of motion no less than 270 degrees. Muscle spasm and guarding was found but did not result in abnormal gait or abnormal spinal contour. Muscle atrophy was not shown. Ankylosis, other neurological abnormalities, and IVDS was not shown. The Veteran uses a brace and walker on a regular basis. Upon review of the record, the Board finds that the evidence of record does not support a higher rating in excess of 30 percent for neck disorder is not warranted. At the January 2021 examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher rating is not warranted based on limitation of motion. The next higher rating for a neck disorder is 40 percent, which requires evidence of unfavorable ankylosis of the entire cervical spine. On review, the Board notes that ankylosis of the spine is not shown by the medical evidence. Notably, for a higher rating his entire cervical spine would need to be fixed in an unfavorable position and result in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. None of this is shown in the evidence of record. Thus, a higher rating is not warranted based on the Spinal Formula. Regarding relevant neurological findings, the examiners noted no other neurological abnormalities. There is no other evidence in significant conflict with these findings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. 2. Left Knee Disorder This appeal stems from a claim dated in February 1994. During the period on appeal, the knee is rated 10 percent under Diagnostic Code 5010-5257. 38 C.F.R. § 4.71a. The criteria pertaining to traumatic arthritis under Diagnostic Code 5010 instruct to rate as degenerative arthritis under Diagnostic Code 5003. Under that code, degenerative arthritis established by X-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, 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. 38 C.F.R. § 4.71a, 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 assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. These ratings may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5257 relates to instability and is discussed below. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. In this case the evidence does not reflect that he has any meniscal disability. As such, these diagnostic codes are not for application. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect that the Veteran has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, "severe" represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). The Veteran underwent a VA examination in July 1995 for the left knee. On examination, the examiner noted no heat, effusion, Baker's cyst, or physical abnormalities. Examination revealed mild crepitation with range of motion. There was no swelling. Range of motion testing was performed and showed at worst 90 degrees of flexion. The Veteran underwent a VA examination in May 2007. Range of motion testing was performed and showed at worst 95 degrees of flexion and 35 degrees of extension. There was no ligament laxity. The Veteran used a cane, walker, crutches, and knee brace for his knee. He does not have flare-ups in either knee and is in constant chronic pain, which also interferes with his sleep. With repeated use of the joints, the Veteran experiences pain, fatigue, weakness, lack of endurance, decreased motion, giving away, and incoordination. He experiences frequent locking of his knee, stabbing pain, and sense of being stuck by pins. The pain is made worse by moving around and by undergoing activity. His ability to walk is affect as he has no sense of balance and is in constant pain. The Veteran underwent an examination in March 2010. The Veteran reports symptoms to include weakness, stiffness, lack of endurance, fatigability, and pain. He indicates not experiencing any swelling, heat, redness, giving away, locking, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He reported flare-ups as often as 2 times per day that last for 1 hour or more with severity level at 8. The flare ups are precipitated by physical activity. During flare ups, the Veteran experiences functional impairment described as weakness, stiffness, pain, and limitation of motion of the joint described as stiffness upon left/right movement. He has difficulty with prolonged standing or walking. He reported no hospitalization, surgery, or incapacitation. He has not had any joint replacement. Overall functional impairment include inability to stand for too long, kneel or stoop down, hard to walk up or down stairs, pain when bending knees, and has fallen from stairs numerous times. Upon examination, the examiner reported tenderness in the left knee. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, and subluxation. There was no locking pain, genu recurvatum, crepitus, and ankylosis. Range of motion testing was performed and was at worst 100 degrees of flexion and 0 degrees of extension. The examiner noted that the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits. The Veteran was afforded a VA examination in October 2010. Range of motion testing was performed and showed at worst 95 degrees of flexion and 25 degrees of extension with pain. Range of motion was performed 3 times and there was evidence of pain but no evidence of fatigue, weakness, lack of endurance, instability, or in coordination with repeated testing. There was no additional loss of joint function or motion with use due to pain with repeated testing. The Veteran underwent a VA examination in January 2012. The Veteran did not report flare-ups. Range of motion testing was performed and showed at worst 140 degrees of flexion and 0 degrees of extension. Similar findings were shown for repetitive use testing, and there was no additional limitation in range of motion. There was no pain on palpation shown. Joint stability testing was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. Shin splints, meniscal conditions, or knee replacements were not shown. Findings noted that the Veteran did not use assistive devices. The Veteran underwent a VA examination in May 2019. The Veteran reported sharp pain rated 9 out of 10 and stiffness in the left knee. The Veteran did not report flare-ups. Functional loss was described as inability to maneuver the stairway, squat, or bend down. Range of motion was performed and showed at worst 95 degrees of flexion and 0 degrees of extension. There was evidence of pain with weight bearing and crepitus. Observed repetitive use testing was performed with no additional loss of function. The exam did not occur after repetitive use over time and the examiner could not describe range of motion. The Veteran did not have muscle atrophy, ankylosis, or shin splints. There was no evidence of recurrent subluxation, lateral instability, or recurrent effusion. There were no meniscal conditions noted, or evidence of surgical procedures. It was noted that the Veteran regularly used a brace and occasionally used a walker. Most recently, the Veteran was afforded a VA examination in January 2021. The Veteran reported symptoms such as pain, popping, right knee instability, and swelling. He denied having flare-ups. Functional loss was described as inability to stand on left knee for too long. Upon observation, range of motion was performed and showed at worst 115 degrees of flexion and 0 degrees of extension. Pain was noted as mild tenderness of palpation. Observed repetitive use testing was performed with no additional loss of function. With repetitive use over testing, range of motion testing showed at worst 105 degrees in flexion to 0 degrees extension. Veteran did not have muscle atrophy, ankylosis, or shin splints. There was no evidence of recurrent subluxation and lateral instability. The examiner reported the presence of recurrent effusion. There were no meniscal conditions noted. It was noted that the Veteran regularly used a brace and a walker. Upon review of the evidence of record, the Board finds that the evidence does not support a higher rating in excess of 10 percent for left knee disorder. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the March 2010 examination, the Veteran reported flare-ups consisting twice per day that last for 1 hour or more with severity level at 8 out of 10. The flare ups are precipitated by physical activity. During flare ups, the Veteran experiences functional impairment described as weakness, stiffness, pain, and limitation of motion of the joint described as stiffness upon left/right movement. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. The Board notes that the examiner in March 2010 did not estimate range of motion during flare-ups. Notably, while the Veteran may have previously had flare-ups, for the majority of times such as at the May 2007, January 2012, May 2019, and January 2021 examinations, the Veteran denied flare-ups of the left knee. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up. Furthermore, repetitive use over time testing was performed in January 2021, and the findings did not warrant a higher rating based on limitation of motion. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Regarding instability and subluxation of the knee, the Veteran is currently receiving disability ratings for the right knee under Diagnostic Code 5257, and thus, a separate rating is not warranted. 38 C.F.R. § 4.14. In November 1995 the Veteran stated he had lateral instability, locking, and effusion. Notably, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in January 2012, May 2019, and January 2021, and the testing revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran's lay statements. While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or instability were present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257 (2020). Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted as the evidence is against a finding of the presence of slight lateral instability or recurrent subluxation. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability. Notably, diagnostic testing for stability at the January 2012, May 2019, and January 2021 examinations did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A compensable rating is not warranted for patellar instability either. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as discussed above, the evidence is against a finding of recurrent instability. Moreover, the record does not contain a diagnosed condition involving the patellofemoral complex; that is, the quadriceps tendon, the patella, or the patellar tendon. The Veteran, as a lay person, is not competent to provide the required diagnosis. Based on the foregoing, the Board concludes that a higher or separate rating in excess of 10 percent for left knee disorder is denied. 3. Right Knee Disorder This appeal stems from a claim dated in February 1994. During the period on appeal, the right knee is rated 10 percent under Diagnostic Code 5010. 38 C.F.R. § 4.71a. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, "severe" represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). The Veteran underwent an August 1994 VA examination for the right knee. He reported pain with cracking and decreased motion, further described as stabbing pain that gives out. His right knee locks. The Veteran underwent a VA examination in July 1995. He reported his right knee giving out and sometimes locking. On examination, the examiner noted no heat, effusion, and Baker's cyst. Examination revealed mild crepitation with range of motion. Range of motion testing was performed and showed at worst 90 degrees of flexion. The Veteran underwent a VA examination in May 2007. Range of motion testing was performed and showed at worst 90 degrees of flexion and 30 degrees of extension. The Veteran used a cane, walker, crutches, and knee brace for his knee. He does not have flare-ups in either knee because he is in constant chronic pain, which also interferes with his sleep. With repeated use of the joints, the Veteran experiences pain, fatigue, weakness, lack of endurance, decreased motion, giving away, and incoordination. He experiences frequent locking of his knee, stabbing pain, and sense of being stuck by pins. The pain is made worse by moving around and by undergoing activity. His ability to walk is affect as he has no sense of balance and is in constant pain. The Veteran underwent an examination in March 2010. The Veteran reports symptoms to include weakness, stiffness, swelling, giving away, lack of endurance, locking, and fatigability. He indicates not experiencing any heat, redness, deformity, tenderness, drainage, effusion, subluxation, pain, and dislocation. He reported experiencing flare-ups as often as 2 times per day that last for 1 hour or more with severity level at 9 out of 10. The flare ups are precipitated by physical activity and occur spontaneously. During flare ups, the Veteran experiences functional impairment described as knee pops, weakness, gives away, pain, and stiffness and limitation of motion of the joint described as stiffness upon left/right movement. He has difficulty with standing or walking. He reported not receiving any treatment for the condition. He had surgery for a right knee repair in 1977, and did not experience any residual symptoms. In the past 12 months, he has not had any incapacitation. He has not had any joint replacement. Overall functional impairment include inability to stand for too long, kneel or stoop down, hard to walk up or down stairs, pain when bending knees, and has fallen from stairs numerous times. Upon examination, the examiner reported tenderness in the right knee. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, and subluxation. There was no locking pain, genu recurvatum, crepitus, and ankylosis. Range of motion testing was performed and was at worst 90 degrees of flexion and 0 degrees of extension. The Veteran could not perform stability testing for the right knee because of knee pain. The Veteran was afforded a VA examination in October 2010. Range of motion testing was performed and showed at worst 80 degrees of flexion and 25 degrees of extension with pain with motion. Range of motion was performed 3 times and there was evidence of pain but no evidence of fatigue, weakness, lack of endurance, instability, or in coordination with repeated testing. There was no additional loss of joint function or motion with use due to pain with repeated testing. The Veteran underwent a VA examination in January 2012. The Veteran did not report flare-ups. Range of motion testing was performed and showed at worst 140 degrees of flexion and 0 degrees of extension. Similar findings were shown for repetitive use testing, and there was no additional limitation in range of motion. The Veteran reported functional loss to include pain on movement. There was no pain on palpation shown. Joint stability testing was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. Shin splints, meniscal conditions, or knee replacements were not shown. Findings noted that the Veteran did not use assistive devices. The Veteran underwent a VA examination in May 2019. The Veteran reported sharp pain rated 9 out of 10 and stiffness in the right knee. The Veteran did not report flare-ups. Functional loss was described as inability to maneuver the stairway, squat, or bend down. Range of motion was performed and showed at worst 100 degrees of flexion and 0 degrees of extension. There was evidence of pain with weight bearing and crepitus. Observed repetitive use testing was performed with no additional loss of function. The exam did not occur after repetitive use over time and the examiner could not describe range of motion. The Veteran did not have muscle atrophy, ankylosis, or shin splints. There was no evidence of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran had a meniscal tear on the right knee from a meniscectomy in April 1978. There was no evidence of surgical procedures. It was noted that the Veteran regularly used a brace and occasionally used a walker. Most recently, the Veteran was afforded a VA examination in January 2021. The Veteran reported symptoms such as pain, popping, right knee instability, and swelling. He denied having flare-ups. Functional loss was described as right knee will just go out on the Veteran and gets swollen, and he has to use a walker because he does not know when he might fall from going out. Upon observation, range of motion was performed and showed at worst 110 degrees of flexion and 0 degrees of extension. Pain was noted as mild tenderness of palpation. Observed repetitive use testing was performed with no additional loss of function. With repetitive use over testing, range of motion testing showed at worst 100 degrees in flexion to 0 degrees extension. Veteran did not have muscle atrophy, ankylosis, or shin splints. There was no evidence of recurrent subluxation and lateral instability. The examiner reported moderate lateral instability, and recurrent effusion. The examiner further reported that the Veteran has a meniscus condition with frequent episodes of joint locking, pain, and effusion. Examination findings did not show any surgical procedures. It was noted that the Veteran regularly used a brace and a walker. Upon review of the evidence, the Board finds that a rating in excess of 10 percent for right knee disorder is not warranted. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the March 2010 examination, the Veteran reported flare-ups consisting twice per day that last for 1 hour or more with severity level at 8 out of 10. The flare ups are precipitated by physical activity. During flare ups, the Veteran experiences functional impairment described as weakness, stiffness, pain, and limitation of motion of the joint described as stiffness upon left/right movement. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. The Board notes that the examiner in March 2010 did not estimate range of motion during flare-ups. Notably, while the Veteran may have previously had flare-ups, for the majority of times such as at the May 2007, January 2012, May 2019, and January 2021 examinations, the Veteran denied flare-ups of the right knee. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up. Furthermore, repetitive use over time testing was performed in January 2021, and the findings did not warrant a higher rating based on limitation of motion. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Regarding a meniscus condition, the Board finds that a separate rating for meniscal tear is not warranted. While the evidence notes meniscal tear in May 2019 and additional symptoms during the January 2021 examination, the January 2021 examiner indicated that such meniscal tear are residuals of the April 1978 surgery that is reflected in the current service-connected right knee traumatic arthritis with painful limitation of motion. Thus, as the meniscal conditions are included in the current rating, a separate rating is not warranted. 38 C.F.R. § 4.14. Regarding instability and subluxation of the knee, the Veteran is currently receiving disability ratings for the right knee under Diagnostic Code 5257, and thus, a separate rating is not warranted. 38 C.F.R. § 4.14. In a June 2009 Statement in Support of Claim, the Veteran stated he had unstable right knee which gives out at times. Notably, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in January 2012 and May 2019, and the testing revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran's lay statements. The Board acknowledges the January 2021 VA examination findings which noted that the Veteran had moderate lateral instability. However, as noted above, the Veteran is currently service-connected for right knee instability rated at 30 percent effective January 19, 2021, the date of the VA examination. Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted. 38 C.F.R. § 4.14. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability for a 30 percent rating. Notably, diagnostic testing for stability at the January 2021 VA examinations did not reveal any evidence of patellar instability showing 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, or recurrent subluxation or instability showing unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Such evidence is necessary to warrant a 30 percent rating. Based on the foregoing, the Board finds that a higher or separate rating in excess of 10 percent for a right knee disorder is denied. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.