Citation Nr: 21029613 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-39 549 DATE: May 14, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia patella is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's chronic lumbosacral strain with moderate limitation of motion was manifested by pain, soreness, stiffness, tenderness, guarding, and spasm, and forward flexion limited to 45 degrees, at worst, with no objective evidence of ankylosis of the entire thoracolumbar spine or acute signs or symptoms of intervertebral disc syndrome CONCLUSION OF LAW Throughout the period on appeal, the criteria for a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in June 2020 for further development. The Veteran testified at a videoconference hearing before the undersigned in February 2020. A transcript is of record. During the pendency of this appeal, in a December 2020 rating decision, the RO granted a 10 percent disability rating for left knee chondromalacia patella, effective March 28, 2016. This does not constitute a full grant of the claim and it remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In the same December 2020 rating decision, the RO granted service connection for right lower extremity sciatic nerve radiculopathy at 10 percent disabling effective March 28, 2016 and left knee scars, as noncompensable, effective December 9, 2020. As the Veteran has not indicated disagreement with the ratings assigned for these disabilities, the Board finds that they are not on appeal before the Board at this time. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 10 (2007). The Board notes that the schedular criteria for rating the spine have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5242 included degenerative disc disease (other than intervertebral disc syndrome) with degenerative arthritis, Diagnostic Code 5243 (intervertebral disc syndrome) specified that it should only be assigned where there was disc herniation with compression and/or irritation of the adjacent nerve root and other disc diagnoses were to be rated under Diagnostic Code 5242, and Diagnostic Code 5244 was added to rate traumatic paralysis, specifically paraplegia (rated under Diagnostic Code 5110) and quadriplegia (to be rated separately under Diagnostic Codes 5109 and 5110 and evaluations combined in accordance with 38 C.F.R. § 4.25). See 85 Fed. Reg. 76,453 76,469 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. However, all other rating criteria for the spine, to include the General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating IVDS Based on Incapacitating Episodes remain unchanged. Further, Diagnostic Codes 5235 to 5243 are still evaluated the General Rating Formula for Diseases and Injuries of the Spine unless 5243 is evaluated under the Formula for IVDS Based on Incapacitating Episodes. See 85 Fed. Reg. 76,453 76,469 (November 30, 2020). Here, the Veteran was found to have IVDS in the most recent December 2020 VA examination, which defined IVDS as a group of signs and symptoms due to nerve root irritation. The December 2020 VA examiner's findings do not indicate that the Veteran would be awarded a compensable rating under the Formula for Rating IVDS Based on Incapacitating Episodes. As such, the Board concludes that the application of the amended rating criteria would not result in a higher disability rating for the Veteran's lumbosacral strain with moderate limitation of motion from February 7, 2021, forward. The Veteran's lumbosacral strain with moderate limitation f motion is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237, under both the old and new criteria, is evaluated under the General Rating Formula for Disease and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. For VA compensation purposes, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (Combined Ratings Table). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings will apply: A 20 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 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 measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. In an August 2012 lay statement, the Veteran reported that every two years, her back went out and she was unable to even walk. She had to lay flat for five to seven days and needed help getting in and out of bed. The Veteran also reported that she relocated to Florida from West Virginia, because the cold and dampness in West Virginia had caused her so much pain. She went to a chiropractor in Florida due to increased pain in her lower back. In an August 2012 lay statement, the Veteran's partner stated that they had been together since 1998. He observed many days when her back required her to lay flat for several hours at a time. Her back also occasionally went out without a "causing" event. She dropped to the floor and was unable to stand, so he had to help her to the bed. He had to take vacation to assist the Veteran getting out of bed and to and from the bathroom for several days at a time. In a June 2013 VA examination, the Veteran reported on and off low back pain with flare ups of pain. She stated that he had flare ups almost every two years with the last one in August 2010 while she was living in D.C. She had severe flare ups occurred every two to three years that lasted for five to seven days. The Veteran reported that during flare ups she was crying and almost bedridden. Precipitating factors included cold weather. The examiner found that as the Veteran was not having a flare up that day, it would be speculative to report whether pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare ups or with repeated use over time. Upon initial range of motion testing, the Veteran's thoracolumbar spine had forward flexion to 90 degrees, extension to 0 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no objective evidence of pain. There was no additional limitation of motion after repetitive use testing. She did not have localized tenderness or pain to palpation, reduction in muscle strength, or muscle atrophy. The Veteran had guarding and/or muscle spasm, but it did not result in abnormal gait or spinal contour. She did not have IVDS. Her back disability did not result in occupational impairment. In a July 2013 lay statement, the Veteran's coworker reported that the Veteran always used an orthotic support on her desk chair and a footrest. Her coworker was also aware that she regularly took leave to see a chiropractor and occasionally missed work due to back pain. The Veteran's coworker observed that the Veteran often bent forward after standing for a few minutes, which reportedly relieved the pain in her lower back. The Veteran suffered when the weather changed, which caused her knees, hips, and/or lower back to "really bother her" and she even noticeably limped some days. In an August 2014 notice of disagreement, the Veteran reported chronic pain and indicated her disappointment in the VA examination. In an April 2017 VA examination, the Veteran reported back pain that was worse in the morning or with lifting. She took medication and went to physical therapy for treatment. She reported flare ups to include worse back pain with lifting, walking, standing, or sitting for too long. She did not report any functional loss. Upon initial range of motion testing, the Veteran's thoracolumbar spine had normal range of motion on all planes of motion. Pain, localized tenderness or pain on palpation, or pain with weight bearing were not noted. There was no additional limitation of motion after repetitive use testing. The examiner did not examine the Veteran immediately after repeated use over time or during a flare up and, as such, found that he could not provide an opinion as to functional loss. She did not have guarding or muscle spasm, reduction in muscle strength, muscle atrophy, ankylosis, or IVDS. Her back disability did not result in occupational impairment. The Veteran did not have objective evidence of pain with non-weight bearing and passive range of motion was the same as active range of motion. She occasionally used a cane. In a July 2017 VA 9, the Veteran asserted that she began to favor her left knee which caused physical problems, including her gait. Her lower back problems were also aggravated. She stated that he back condition was bad and not improving. At the February 2019 hearing, the Veteran reported that her back treatment included a chiropractor, anti-inflammatories, Biofreeze, and stretching. She reported back pain, stiffness, soreness, and tenderness. At the time of the hearing, the Veteran's pain level was described as "pretty high." On most days, she rated her pain was three or four, but it could increase depending on the weather and her activity. Approximately once a year, if that, her back would go out and she had lie flat for several days. Every couple of months, she would have to lie down in bed for a day or two. Due to her back pain, she could not clean a bathtub, bend very much, walk very long, or work with flowers. The Veteran used a cane, but it aggravated her back. She also had a back brace. At time, she sat a lot and took breaks. When she had to get up, she had to hold onto something to push herself up. Her back would sometimes pop when she got up or turned a certain way. The Veteran's husband reported that the Veteran sometimes needed help getting up and that she had very limited ability to do yardwork. Her daily life had been impacted greatly. In a February 2020 lay statement, the Veteran reported that her knee disabilities had worsened which caused her lower back disability to worsen. She contended that the April 2017 VA examination did not show the true severity of her disability. She was unable to drive at the time, taking pain medications, and using a cane. The Veteran reported that her functional limitations due to her back condition included inability to leisurely shop with friends, walk her dog every day, kneel, squat, or bend, go on day trips that require a lot of walking, keep up with housekeeping, or wash her own car. Her sex life also changed drastically, and the Veteran started drinking more in the evening in lieu of taking pain or antidepressants. In a December 2020 VA examination, the Veteran reported that she had a constant ache in the lower back with intermittent sharp pain. She also had some popping in the lower right back when leaning forward while sitting and two nerve blocks. She was unable to vacuum, mop, clean tubs, or shop in stores as standing for longer than 30 minutes was too painful. She had to see a chiropractor regularly. The Veteran reported moderate to severe flare ups that occurred twice a month lasting two days to one week. The flare ups were precipitated by standing longer than 30 minutes, walking on hard surfaces, and bending too long (such as for weeding). They were alleviated by rest, heat patches, heating pad, or topical treatment. Upon initial range of motion testing, the Veteran's thoracolumbar spine had forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted pain upon forward flexion and extension, but found that it did not result in functional loss. There was objective evidence of tenderness or pain on palpation of moderate severity in the right lumbosacral region. The examiner found that there was additional functional loss upon repetitive use, repeated use over time, and flare ups. Upon repetitive use testing, the Veteran's thoracolumbar spine had forward flexion to 55 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. While the Veteran was not examined immediately after repeated use over time or flare ups, the examiner was able to describe the functional loss in terms of range of motion. After repeated use over time, the Veteran's thoracolumbar spine had forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. During flare ups, her thoracolumbar spine had forward flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The Veteran had muscle spasm that did not result in abnormal gait or spinal contour. There was no reduction in muscle strength, muscle atrophy, or ankylosis. The examiner found that while the Veteran had IVDS, she did not have episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last twelve months. She regularly used a brace and occasionally used a cane. Occupational impact included inability to vacuum, mop, clean tubs, or shop in stores. There was no evidence of pain on passive range of motion or non-weight bearing of the back. According to private treatment records from August 2011 to November 2020, the Veteran had low back pain, tenderness, stiffness, muscle tension, and spasm. Due to her back disability, the Veteran had difficulties performing normal work activities, standing, walking, stooping, squatting, bending, lifting, exercising, lying down, and sleeping restfully. Low back pain was aggravated by activity, bending, twisting, coughing, sneezing, straining, standing, lifting, and lying down. It was relieved by bending forward, sitting, resting, and taking medications. It was noted that the Veteran had flare ups or exacerbations of lumbar symptoms. From August 2011 to December 2011, it was noted that there was asymmetry/misalignment, trigger point nodules, myospasms, and edema in the lumbar area. In August 2011, September 2016, and January 2017, it was noted that the Veteran's lumbar spine range of motion was reduced in all planes of motion with pain. From July 2012 to July 2013, it was noted that there was a less than 25 percent decrease in range of motion in the lumbodorsal flexion, extension, right lateral flexion, and left lateral flexion. From September 2014 to November 2014, it was noted that the normal range of motion for flexion was 60 degrees, extension was 25 degrees, right and left lateral flexion was 25 degrees, and left and right rotation was 25 degrees. The chiropractor found that the Veteran had lumbar flexion to 55 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and left and right rotation to 20 degrees. According to VA treatment records from April 2013 to February 2020, the Veteran had back pain and spasm with flare ups of back pain. She also had mild tenderness to palpation over the right lower paraspinous muscle group. She had limited range of motion due to pain. Aggravating factors included bending, vacuuming, washing her face, and standing for long periods. Alleviating factors included rest breaks, chiropractic treatment, heat, and TENS unit. In the June 2013, April 2017, and December 2020 VA examinations, the Veteran indicated that she had flare ups of her spine disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the June 2013 and April 2017 VA examination reports did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion. Although the June 2013 VA examination, which was conducted prior to the decision in Sharp v. Shulkin, review of the contemporaneous medical evidence indicates that her flare ups would not have resulted in limitation of forward flexion of the thoracolumbar spine limited to 30 degrees or less. According to contemporaneous private and VA treatment records, the Veteran had reduced range of motion, to include a less than 25 percent decrease in lumbodorsal flexion (indicating forward flexion to approximately 67.5 degrees or more) or forward flexion to 55 degrees. Further, subsequent VA examinations, which reflected worsening of the Veteran's chronic lumbosacral strain, to include the December 2020 VA examination, did not show forward flexion limited to 30 degrees or less. As the contemporaneous evidence indicates that the June 2013 VA examiner would not have found flexion limited to at least 30 degrees during flare ups, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). Although the April 2017 VA examination does not estimate the functional loss during flare ups, the December 2020 VA examination did estimate functional loss during flare ups. In the April 2017 VA examination, the Veteran had normal range of motion, so her forward flexion was to 90 degrees and by the December 2020 VA examination, her forward flexion was decreased to 45 degrees during flare ups. As such, the Board can only reflect that similar findings would have been shown in the April 2017 VA examination report. Additionally, contemporaneous post-service treatment records do not indicate that the Veteran's range of motion during a flare up would have been limited to 30 degrees or less. As the contemporaneous evidence, to include the December 2020 VA examination, does not indicate that the April 2017 VA examiner would have found flexion limited to at least 30 degrees during flare ups, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini, 1 Vet. App. at 546 (1991). Based on a careful review of all of the subjective and clinical evidence, the Board finds that the Veteran's chronic lumbosacral strain with moderate limitation of motion does not warrant a disability rating in excess of 20 percent. In other words, the evidence does not show that the Veteran's lumbosacral strain manifested in forward flexion at 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. Indeed, the December 2020 VA examination shows that the Veteran's forward flexion was limited to 45 degrees at worst, and the April 2017 and December 2020 VA examiners did not find ankylosis. Additionally, the evidence of record did not show functional equivalent to ankylosis as contemplated by General Rating Formula for Disease and Injuries of the Spine, such as fixation of a spinal segment, difficulty walking due to limited line of vision, restricted opening of the mouth and chewing, limited breathing due to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Further, the clinical evidence, to include the December 2020 VA examination, do not show that the Veteran had incapacitating episodes requiring bed rest prescribed by a physician as a result of IVDS due to her lumbosacral strain. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's chronic lumbosacral strain with moderate limitation of motion. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia patella is remanded. The Board finds that additional development is required for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. During the pendency of the appeal, the schedular criteria for rating the knee have been amended, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5257 differentiates between recurrent subluxation or instability and patellar instability. See 85 Fed. Reg. 76,453 76,463 (November 30, 2020). Additionally, the way recurrent subluxation or instability and patellar instability are rated differs significantly from how subluxation or lateral instability was rated under the old criteria. The December 2020 VA examination shows that the Veteran had left knee anterior instability. As such, a new VA examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the severity of her service-connected left knee chondromalacia patella. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran's left knee symptoms, and the effect of pain on range of motion. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of her left knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner finds that there is left knee subluxation or instability, the s/he must address the following: a. Whether there is recurrent subluxation or instability that is due to a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) and a medical provider prescribed the use of a brace and/or assistive device (i.e., cane, crutches, walker) and/or bracing for ambulation. b. Whether there is patellar instability that is a diagnosed condition involving the patellofemoral complex with recurrent instability, with or without a history of surgical repair, and a medical provider prescribed the use of a brace, cane, and/or walker. The examiner is advised that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Further, 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). A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups and repeated use over time on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.