Citation Nr: 21028910 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-60 110 DATE: May 12, 2021 ORDER An initial 40 percent rating for limited right hip flexion is granted, effective November 24, 2014. An initial 40 percent rating for limited left hip flexion is granted, effective November 24, 2014. An initial compensable rating for limited right hip extension is denied. An initial compensable rating for limited left hip extension is denied. An initial rating of more than 10 percent for limited right hip adduction/abduction is denied. An initial rating of more than 10 percent for limited left hip adduction/abduction is denied. For the period of March 15, 2017 to November 20, 2019, an initial rating of more than 10 percent for limited right knee flexion is denied. For the period of March 15, 2017 to November 20, 2019, an initial rating of more than 10 percent for limited left knee flexion is denied. Since November 20, 2019, a 30 percent increased rating for limited right knee flexion is granted. Since November 20, 2019, a 30 percent increased rating for limited left knee flexion is granted. An initial 40 percent rating for limited right knee extension is granted for the period of February 24, 2017 to November 20, 2019. An initial 40 percent rating for limited left knee extension is granted for the period of February 24, 2017 to November 20, 2019. An initial 30 percent rating for right knee instability is granted, effective February 24, 2017. An initial 30 percent rating for left knee instability is granted, effective February 24, 2017. FINDINGS OF FACT 1. Since November 24, 2014, the Veteran's bilateral hip disorder manifested with bilateral flexion limited to 20 degrees, bilateral extension limited to 10 degrees, the inability to cross his legs due to limited adduction, crepitus, instability, painful motion, flare-ups, constant use of a wheelchair, and functional loss including difficulty walking, sitting, or standing. 2. From February 24, 2017 to November 20, 2019, the Veteran's bilateral knee disorder manifested with constant daily pain, flare-ups, frequent episodes of locking pain, buckling, severe instability requiring constant use of a wheelchair and/or knee brace, bilateral flexion limited to 70 degrees with pain, bilateral extension limited to 30 degrees with pain, and additional pain and inability to bend his knees after repeated use over time and during flare-ups. 3. Since November 20, 2019, the Veteran's knee disorder manifested with additional symptoms including right knee flexion limited to 20 degrees, left knee flexion limited to 35 degrees, bilateral knee extension limited to 45 degrees or less, and additional pain, reduction in ROM, and functional limitation during flare-ups and after repeated use over time. CONCLUSIONS OF LAW 1. For the entire appellate period, the criteria for an initial rating of 40 percent for limited right hip flexion have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252. 2. For the entire appellate period, the criteria for an initial rating of 40 percent for limited left hip flexion have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252. 3. For the entire appellate period, the criteria for a compensable rating for limited right hip extension were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5251. 4. For the entire appellate period, the criteria for a compensable rating for limited left hip extension were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5251. 5. For the entire appellate period, the criteria for a rating of more than 10 percent for limited adduction/abduction of the right hip were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5253. 6. For the entire appellate period, the criteria for a rating of more than 10 percent for limited adduction/abduction of the left hip were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5253. 7. From March 15, 2017 to November 20, 2019, the criteria for an initial rating of more than 10 percent for limited right knee flexion were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 8. From March 15, 2017 to November 20, 2019, the criteria for an initial rating of more than 10 percent for limited left knee flexion were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 9. Since November 20, 2019, the criteria for a 30 percent rating for limited right knee flexion have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 10. Since November 20, 2019, the criteria for a 30 percent rating for limited left knee flexion have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 11. From February 24, 2017 to November 20, 2019, the criteria for an initial 40 percent rating for limited right knee extension were approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5261. 12. From February 24, 2017 to November 20, 2019, the criteria for an initial 40 percent rating for limited left knee extension were approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5261. 13. Since February 24, 2017, the criteria for an initial 30 percent rating for right knee instability have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. 14. Since February 24, 2017, the criteria for an initial 30 percent rating for left knee instability have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February to April 2009. The Veteran has been in receipt of a total disability evaluation based on individual unemployability (TDIU) since November 24, 2014. He has been in receipt of special monthly compensation (SMC) based on the loss of use of his legs since October 6, 2020. In November 2019, the Veteran and his wife testified at a Central Office hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a discussion with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is in the claims file. In March 2020, the Board of Veterans' Appeals (Board) remanded the claims to the VA Regional Office (RO) to arrange for additional medical examinations, which were completed in September 2020. Review of the completed development reveals that the RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion ("ROM") measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Increased ratings for right and left hips The Veteran's bilateral hip disorders have been evaluated under three separate diagnostic codes: DC 5251 provides a single, maximum 10 percent evaluation for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. DC 5252 provides ratings based on limited flexion of the thigh. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 20 degrees warrants a 30 percent rating. Flexion limited to 10 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5252. DC 5253 provides ratings based on limited abduction and/or adduction of the thigh. A 10 percent rating is warranted for either: (1) limited adduction and inability to cross legs; or (2) limited rotation and inability to toe-out more than 15 degrees in the affected leg. A 20 percent rating is warranted for limited abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Since November 24, 2014, the Veteran's right hip disorder has been assigned a 30 percent rating for limited flexion (DC 5252); a 10 percent rating for limited abduction/adduction (DC 5253); and a noncompensable (zero percent) rating for limited extension (DC 5251). During a July 2015 VA examination, the Veteran reported constant bilateral hip pain and flare-ups after walking, standing and sitting. He reported his right hip pain was worse than his left. The Veteran reported his hip symptoms were not as severe as his other musculoskeletal symptoms, and hip pain did not impact his ability to perform sedentary work. The VA examiner indicated that X-rays showed degenerative arthritis in the right hip only. During initial range of motion (ROM) testing, the Veteran had bilateral hip flexion to 20 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 20 degrees, and internal rotation to 10 degrees. He reported pain during all ranges of motion and was unable to cross his legs due to limited adduction. The Veteran performed repetitive use testing without any additional pain or limitation of ROM. The examiner noted evidence of pain with weight bearing and pain on all ranges of motion, and opined that pain caused functional loss. The Veteran did not have crepitus (a grinding sensation due to friction between bone and cartilage or the fractured parts of a bone). The examiner noted moderate tenderness to palpation of the right hip only, which he stated was consistent with degenerative joint disease (DJD). The examiner did not speculate whether the Veteran had additional functional limitation during flare-ups or after repeated use over time, and indicated an additional examination was needed to address those symptoms. The Veteran did not have reduced muscle strength, ankylosis, or malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. He reported regularly using a prescription cane due to his bilateral flat feet. In a February 2017 non-VA examination, the Veteran continued to report flare-ups that caused reduced ROM, pain, and instability. He reported constantly using a cane, brace, crutches and a wheelchair. During ROM testing, he had bilateral hip flexion to 30 degrees, extension to 10 degrees, abduction to 10 degrees, adduction to 5 degrees, external rotation to 45 degrees, and internal rotation to 0 degrees. He had no change in ROM after repetitive use testing. The examiner noted there was evidence of pain with weight bearing, crepitus, and localized tenderness in both hips. He also opined that the Veteran would have additional pain, reduced ROM and instability after repeated use over time and during flare-ups, although he did not describe these symptoms in terms of ROM. Additional testing revealed reduced muscle strength but no muscle atrophy or ankylosis in either hip. The examiner noted the Veteran had osteoarthritis in both hips. The Veteran was afforded an additional VA examination in September 2020. The examiner indicated a diagnosis of arthritis in the right hip only. During the examination, the Veteran continued to report symptoms of constant pain, stiffness, loss of ROM and instability in both hips. He reported constantly using a wheelchair because his hip pain and instability frequently caused him to fall. The Veteran reported flare-ups caused by prolonged sitting, standing, and walking, which were alleviated by rest. He reported he was unable to walk even short distances. The Veteran could not perform ROM testing because he was confined to a wheelchair and unable to stand. He reported having pain on all ranges of motion. The examiner noted evidence of crepitus, pain with weight bearing and non-weight bearing, and pain during both active and passive ROM testing. The examiner did not speculate as to functional loss during flare-ups or after repeated use over time and stated it was impossible to establish a baseline due to the Veteran's inability to perform any ROM testing. The Veteran did not have ankylosis or malunion or nonunion of the femur, flail hip joint or leg length discrepancy. The examiner indicated that the Veteran's bilateral hip disorder impacted his ability to perform occupational tasks given the Veteran's report that he was wheelchair bound and could not walk or stand at all. Since November 24, 2014, the Veteran's hip disorder manifested with bilateral flexion limited to 20 degrees, bilateral extension limited to 10 degrees, the inability to cross his legs due to limited adduction, crepitus, painful motion, flare-ups, and functional loss including difficulty walking, sitting, or standing. Hip flexion limited to 20 degrees warrants a 30 percent rating under DC 5252. 38 C.F.R. § 4.71a, DC 5252. However, the Veteran has consistently reported bilateral hip pain resulting in functional loss, including reduced ROM such that he would be unable to flex more than 10 degrees, the inability to walk or stand, and the inability to perform any ROM testing at the hip level. Given this evidence, a 40 percent rating (the next highest rating under DC 5252) is warranted for the entire appellate period. See 38 C.F.R. § 4.59, Deluca, supra. Hip extension limited to 10 degrees does not warrant a compensable rating under DC 5251. A compensable rating under DC 5251 is not warranted at any point during the rating period because the Veteran has not demonstrated hip extension limited to 5 degrees or less. 38 C.F.R. § 4.71a, DC 5251. A rating higher than 10 percent under DC 5253 is not warranted at any point during the rating period because the Veteran has not been found to have limited abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. A separate rating under DC 5255 is not warranted as there is no evidence of malunion, a false joint, nonunion or any current fractures. 38 C.F.R. § 4.71a, DC 5255. Separate ratings under DCs 5250 and 5254 are not warranted because the Veteran did not have ankylosis or hip flail joints. The Board has considered whether remand is necessary in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). In the Correia case, the Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. However, given that the Veteran was unable to perform ROM testing during the September 2020 VA examination, remanding for an additional examination that complies with Correia would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). The Veteran submitted several statements and testified at the November 2019 hearing that he has continuous difficulty with ADLs and needs assistance with even basic tasks due to his hip and other musculoskeletal disorders. However, the receives various grants of special monthly compensation based on the loss of use of his legs, housebound status, and need for regular aid and attendance. For the reasons above, the Board will grant 40 percent ratings for each hip, under DC 5252, effective November 24, 2014. With respect to higher ratings under DC 5251 and 5253, the preponderance of the evidence is against finding increased ratings under those diagnostic codes and the claim is denied. 2. Increased ratings for right and left knee The Veteran's knee disorders have been evaluated under three separate diagnostic codes: DC 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, DC 5260. DC 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, DC 5261. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. 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. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Prior to February 7, 2021, under DC 5257, slight recurrent subluxation or lateral instability warranted a 10 percent rating. A 20 percent rating was warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warranted a 30 percent rating. The words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just," under 38 C.F.R. § 4.6. DC 5257 was amended, effective February 7, 2021, but these changes cannot be applied retroactively. In other words, for all times prior to February 7, 2021, the former criteria apply. DC 5257 now provides ratings for "recurrent subluxation or instability" or "patellar instability." With respect to patellar instability, DC 5257 provides: 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; 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 one of the following: A brace, cane, or walker; and 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. See 38 C.F.R. § 4.71a, DC 5257. The Veteran's knees are rated 10 percent disabling from March 15, 2017 to November 20, 2019, and 20 percent disabling from November 20, 2019 and continuing thereafter under DC 5260 (limited flexion). Since November 20, 2019, the Veteran's knees have been assigned separate 50 percent ratings under DC 5261 (limited extension), and 20 percent ratings under DC 5257 (instability) for the right and left knee, respectfully. A non-VA physician evaluated the Veteran's knees in February 2017. The Veteran demonstrated bilateral flexion to 90 degrees and extension to 30 degrees, with pain on both ranges of motion. He performed repetitive use testing without any additional pain or loss of ROM. The examiner noted evidence of crepitus, pain during weight bearing and non-weight bearing, and pain during passive and active ROM. The examiner also noted evidence of bilateral tenderness and pain which resulted in reduced ROM and muscle strength. He opined that the Veteran had additional pain, reduced motion, and instability after repetitive use over time and during flare-ups. The examiner did not describe the expected functional loss in terms of ROM. Additional testing revealed reduced muscle strength bilaterally with active movement against some resistance during flexion and extension. The Veteran reported a history of severe recurrent subluxation (dislocation of the knee from its socket), and slight lateral instability in both knees. However, the examiner did not perform joint stability testing. Although the examiner checked a box indicating the Veteran had "recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment," the examiner did not specify which of those conditions the Veteran had. The examiner noted diagnoses of a bilateral knee strain, tendonitis, knee joint osteoarthritis, and patellofemoral pain syndrome. The examiner noted additional symptoms of less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, instability of station, disturbance of locomotion, interference with sitting and standing, and knee spasms that caused falls. The Veteran reported constantly using a knee brace, cane, and/or wheelchair, and that he had fallen several times because of instability. During the June 2017 VA knee examination, the Veteran reported constant aching knee pain, buckling, locking, flare-ups, and occasional effusion (swelling). He reported falling multiple times due to knee buckling and locking during flare-ups. The Veteran described his knee pain as "excruciating," at a 10/10 in severity, and indicated the condition was progressively worsening. The Veteran continued to report regularly using a wheelchair and walker. He stated he could barely walk. During initial ROM testing, the Veteran had bilateral flexion to 70 degrees and normal extension in both knees. He reported pain on all ranges of motion. The Veteran had additional loss of ROM after repetitive-use testing, with flexion limited to 60 degrees in both knees. The VA examiner noted the Veteran had severe pain due to patellofemoral pain syndrome. She indicated the Veteran's reduced ROM limited his ability to perform activities of daily living (ADLs) beyond the knee level. The examiner also noted evidence of crepitus and pain with weight bearing. She indicated there was no evidence of pain with non-weight bearing or passive ROM. The examiner noted additional factors contributing to the Veteran's knee disorder included disturbance of locomotion, and interference with sitting and standing. The Veteran did not have ankylosis in either knee. Clinical testing revealed normal muscle strength and joint stability bilaterally. Despite the Veteran's reports of buckling and locking, the examiner indicated that the Veteran denied a history of recurrent subluxation, lateral instability, or patellar dislocation. The examiner indicated the Veteran's bilateral knee pain impacted his ability to stand, walk, or sit for prolonged periods of time. At the November 2019 hearing, the Veteran reported constant and severe bilateral knee pain, "locking," limited motion, and arthritis. He reported experiencing pain with or without motion, and described the pain as "throbbing, stabbing, sharp and aching," at a 7-8/10 in severity. He reported he was unsure if he experienced swelling in either knee. The Veteran reported wearing braces on both knees since 2014. He indicated knee braces helped with buckling but did not prevent pain or locking. He reported he had been constantly using a wheelchair for at least two years, although before then he occasionally used a wheelchair when he was unable to walk or stand due to flare-ups and instability. During the September 2020 VA knee examination, the Veteran continued to report constant bilateral knee pain, stiffness, reduced ROM, and instability. He reported daily flare-ups of severe knee pain lasting four hours in duration. He indicated flare-ups were caused by prolonged sitting, standing, and walking, and were alleviated by rest. The Veteran reported he could no longer walk or stand for any period without severe pain and falling. He continued to report difficulty with ADLs and constantly using a wheelchair. During initial ROM testing, the Veteran had right knee flexion from 30 to 50 degrees and extension from 50 to 30 degrees. He had left knee flexion from 20 to 55 degrees and extension from 55 to 20 degrees. The Veteran was unable to straighten either leg due to pain on all ranges of motion. The examiner noted the Veteran had "very limited range of motion," pain with weight-bearing, and crepitus. The Veteran did not have pain with passive ROM testing or non-weight bearing. He was unable to perform repetitive use testing due to pain. The VA examiner indicated the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated she was unable to determine additional functional loss after repetitive use over time, because the Veteran was unable to bend his knees three times due to pain. She opined that pain, weakness, and lack of endurance would limit functional ability during flare-ups, resulting in the Veteran's inability to extend his right knee beyond 30 degrees and his left knee beyond 20 degrees. Additional testing revealed reduced muscle strength bilaterally, no muscle movement in either knee, but no muscle atrophy or ankylosis. Joint stability testing revealed abnormal anterior stability, posterior stability, medial instability, and lateral instability in both knees. The examiner noted that December 2017 X-rays of the right knee revealed minimal posterior patellar sclerosis with questionable effusion, but no fracture or dislocation. The Veteran reported a history of moderate recurrent subluxation and instability but denied a history of recurrent effusion or patellar dislocation. He denied ever having had a meniscal condition. From March 15, 2017 to November 20, 2019, the Veteran's bilateral knee disorder manifested with constant daily pain, flare-ups, frequent episodes of locking pain, buckling, severe instability requiring constant use of a wheelchair and/or knee brace, bilateral flexion limited to 70 degrees with pain, bilateral extension limited to 30 degrees with pain, and additional pain and inability to bend his knees after repeated use over time and during flare-ups. The preponderance of the evidence is against a finding of increased ratings higher than 10 percent from March 15, 2017 to November 20, 2019 for limited bilateral knee flexion. The evidence reflects that the Veteran's bilateral knee flexion was, at worst, 70 degrees during this period. Based on DC 5260 alone, flexion limited to 70 degrees would not warrant a compensable rating. See 38 C.F.R. § 4.71a, DC 5260 (assigning a minimum 10 percent rating for flexion limited to 45 degrees). However, given the Veteran's functional loss of painful flexion, daily flare-ups, and additional pain and limitation of motion during flare-ups and after repetitive use over time such that he shows functional loss, the minimum 10 percent, but no higher, is appropriate for the period of March 15, 2017 to November 20, 2019. See 38 C.F.R. § 4.59, Deluca, supra. During the September 2020 VA examination, the Veteran had right knee flexion limited to 20 degrees and left knee flexion limited to 35 degrees. Under DC 5260, flexion between 16 and 30 degrees warrants a 20 percent rating. See 38 C.F.R. § 4.71a, DC 5260. Given the Veteran's continued reports of painful motion, functional loss, and reduced ROM during flare-ups and after repeated use over time, a 30 percent rating (the next higher rating under DC 5260) is warranted since November 20, 2019. With respect to extension (DC 5261), the evidence shows that a compensable rating is warranted prior to November 20, 2019. The Veteran had bilateral knee extension limited to 30 degrees during the February 2017 non-VA examination. Under DC 5261, extension limited to 30 degrees warrants a 40 percent rating. See 38 C.F.R. § 4.71a, DC 5261. However, the Veteran demonstrated normal extension during the June 2017 VA examination. The Board will resolve any doubt regarding the Veteran's symptoms in his favor and grant a 40 percent rating for limited bilateral knee extension, effective February 24, 2017. A rating higher than 40 percent is not warranted during the period of March 15, 2017 to November 20, 2019 because the Veteran did not have extension limited to 45 degrees in either knee. Additionally, the 50 percent rating in effect since November 20, 2019 is the highest schedular rating under DC 5261. With respect to instability, the evidence shows that the Veteran had severe instability in both knees during the entire rating period. Since the February 2017 non-VA examination, he reported regular and/or constant use of a wheelchair and knee brace. He has consistently reported that he can barely walk due to locking, buckling and pain in both knees. The Board has considered that the February 2017 examiner did not perform joint stability testing and the June 2017 VA examiner indicated that joint stability was normal after testing. However, DC 5257 does not require objective medical evidence of lateral instability, and the June 2017 examiner failed to address the Veteran's statements regarding instability. The Board will resolve any doubt in the Veteran's favor and grant the maximum 30 percent rating for severe instability, effective February 24, 2017. This is the highest evaluation available under both the previous and current versions of DC 5257. A separate rating under DC 5256 is not warranted because the evidence shows the Veteran does not have right or left knee ankylosis. A separate rating under DC 5258 is not warranted because the Veteran did not undergo a dislocated semilunar cartilage and has not been diagnosed with any meniscal conditions. A separate rating under DC 5259 is not warranted because the evidence does not indicate that the Veteran underwent removal of semilunar cartilage. A separate rating under DC 5262 is not warranted because the evidence does not show an impairment of the Veteran's tibia and fibula. A separate rating is not warranted under DC 5263 because the evidence does not show that the Veteran has genu recurvatum. For the reasons above, the Board will assign 30 percent ratings for each knee based on limited flexion (DC 5260), effective November 20, 2019. Ratings higher than 10 percent under DC 5260 are denied for the period of March 15, 2017 to November 20, 2019. The Board will assign 40 percent ratings for each knee based on limited extension (DC 5261) for the period of February 24, 2017 to November 20, 2019. The Board will also assign separate 30 percent ratings for each knee based on instability (DC 5257). The effective date of these ratings is February 24, 2017, the date of examination where the Veteran reported symptoms that warranted these ratings. See Hart v. Mansfield, supra. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision in this case is binding only with respect to this matter and is not precedential or establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.