Citation Nr: 21030166 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-22 888 DATE: May 18, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for the Veteran's left thumb disability is granted, subject to the laws and regulations governing monetary awards. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is denied. FINDINGS OF FACT 1. The competent and probative medical evidence shows that the Veteran has ankylosis in his metacarpophalangeal and interphalangeal joints in extension of his left thumb (minor hand) and that his gripping is limited such as to equate to amputation. 2. Throughout the appeal period, the Veteran's right knee has manifested in flexion of no less than 0 to 115 degrees and extension of no less than 115 to 0 degrees; while there are reports of pain and swelling, there has been no ankylosis, recurrent effusion, diagnosed meniscal condition, tibia or fibula impairment, total knee replacement, any knee instability or evidence of greater impairment. 3. Throughout the appeal period, the Veteran's left knee has manifested in flexion of no less than 0 to 115 degrees and extension of no less than 115 to 0 degrees; while there are reports of pain and swelling, there has been no ankylosis, recurrent effusion, diagnosed meniscal condition, tibia or fibula impairment, total knee replacement, any knee instability or evidence of greater impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 20 percent, but no higher, for the Veteran's left thumb disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5003-5228 (Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5152, 5224, 5228)). 2. The criteria for entitlement to a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260, 5261. 3. The criteria for entitlement to a rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from February 1991 to February 2013. These issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were recently remanded in January 2019 for additional development, including to afford the Veteran new VA examinations, which were accomplished in October 2019. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial compensable rating for the Veteran's left thumb disability. The Veteran contends that his left thumb disability is entitled to a compensable rating. His claim for VA compensation was received in November 2012. The August 2013 rating decision on appeal granted service connection for the left thumb and awarded a noncompensable rating effective March 1, 2013, the day after the Veteran's discharge from service. He timely appealed this determination to the Board. Law and Regulations Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the regulations for rating musculoskeletal injuries have changed effective February 7, 2021. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997)." As there is no indication that the rating criteria amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. The Veteran, who is right-handed, has x-ray evidence of arthritis in his left thumb. Under the old rating criteria, DC 5003 governs arthritis. Under DC 5003, VA must rate such arthritis based on limitation of motion of the specific joint or joints involved, in this case, the thumb. 38 C.F.R. § 4.71a, DC 5003. Under the new rating criteria, DCs 5003 and 5010 govern arthritis. Under both 5003 and 5010, VA must rate such arthritis based on limitation of motion, dislocation, or other specified instability. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5010). DC 5228, which governs ratings of limitation of motion of the thumb, provides that a 10 percent rating is assignable when there is a gap of one to two inches (2.5 to 5.1 cm.) between the major or minor thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating, the maximum available under this DC, is assignable when there is a gap of more than two inches (5.1 cm.) between the major or minor thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, DC 5228. DC 5224 provides that a 10 percent rating is assignable for favorable ankylosis of the minor or major thumb. A 20 percent rating, the maximum available under this DC, is assignable for unfavorable ankylosis of the minor or major thumb. 38 C.F.R. § 4.71a, DC 5224. The adjudicator is also to consider whether an evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. 38 C.F.R. § 4.71a, DC 5224, Note 1. In classifying the severity of ankylosis of the thumb, the following rules are set forth in 38 C.F.R. § 4.71a: (i) Ankylosis of both the carpometacarpal and interphalangeal joints, with either joint in extension or in full flexion or with rotation or angulation of a bone, is to be rated as amputation at metacarpophalangeal joint or through proximal phalanx; (ii) Ankylosis of both the carpometacarpal and proximal interphalangeal joints, even though each is individually in favorable position, is to be rated as unfavorable ankylosis; (iii) With only the carpometacarpal or interphalangeal joint of a thumb ankylosed, and there is a gap of more than 2 inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers, is to be rated as unfavorable ankylosis; and (iv) With only the carpometacarpal or interphalangeal joint of a thumb ankylosed, and there is a gap of 2 inches or less between the thumb pad and fingers, with the thumb attempting to oppose the fingers, is to be rated as favorable ankylosis. 38 C.F.R. § 4.71a. Under DC 5152, which governs thumb amputations, a 20 percent rating is assignable when there is amputation at the major or minor distal joint or through the major or minor distal phalanx, or at the minor metacarpophalangeal joint or through the minor proximal phalanx, or amputation at the major metacarpophalangeal joint or through the major proximal phalanx of the minor hand. A 30 percent rating is warranted for amputation with metacarpal resection of the minor hand. 38 C.F.R. § 4.71a, DC 5152. The Board notes that the criteria under DCs 5152, 5224, and 5228 were unchanged by the February 7, 2021 revisions to the musculoskeletal ratings. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In addition, inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Factual History A review of the post-service VA and private treatment records note complaints and treatment for the Veteran's left thumb disability. A September 2012 private treatment record noted the Veteran's history of left thumb jamming injury and deformity of the metacarpophalangeal (MCP) joint. An October 2012 private treatment record noted ulnar subluxation of the first digit at the MCP joint without acute fracture as well as osteophytosis of the first metacarpal and MCP joint narrowing. Subsequent VA and private treatment records note pain complaints associated with the left thumb. However, no range of motion (ROM) testing was conducted. The Veteran submitted a private medical evaluation in March 2015. The private examiner noted limitation of motion or painful motion in the left thumb. The examiner also found that the Veteran did not have the ability to oppose his left thumb, with painful motion beginning at a gap of one to two inches. The examiner did not find any limitation of finger flexion or extension. The Veteran was found able to perform repetitive use testing with additional limitation of motion after testing. However, no ROM test results were recorded. The examiner also noted deformity of the left thumb with tenderness or pain on palpation. The examiner found that the Veteran had carpometacarpal joint ankylosis in rotation or angulation, noting that the left thumb did not interfere with other digits, but did interfere with gripping, lifting, and full extension/flexion. In addition, the examiner found decreased muscle strength in the left hand. Further, the examiner found that there was no functional impairment of the left thumb such that no effective function remained other than that which would be equally well served by amputation. Finally, the examiner noted imaging studies which found degenerative or traumatic arthritis in the left hand, but no evidence of multiple joint involvement. The Veteran underwent a VA examination for his left thumb disability in February 2016. He was noted to be right hand dominant, but denied flareups, functional loss or functional impairment. His fingers all had maximum extension and flexion. His thumb had maximum extension, but flexion was limited to 10 degrees for the MCP and interphalangeal (IP) joints. He did not have a gap between the thumb and his fingers. He had pain that caused functional loss as well as localized tenderness or pain on palpation. The examiner noted the Veteran's weak hand grasp and inability to pick things up without dropping them. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion afterwards. While the Veteran was not examined immediately after repetitive use over time, the examiner recorded that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner determined that pain significantly limited functional ability with repeated use over a period of time. However, the examiner was not able to describe the limitation in terms of ROM measurements. The Veteran had normal muscle strength (5/5) and no evidence of muscle atrophy. The examiner did not find evidence of ankylosis in his MCP and IP joints. Further, the examiner found that there was no functional impairment of the left thumb such that no effective function remained other than that which would be equally well served by amputation. Finally, the examiner also noted functional impact with difficulty in grasping without pain. The Board observes that the examination reports do not include the passive ROM for the left hand. Passive ROM is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active ROM because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive ROM and active ROM provide information about the amount of motion permitted by the associated joint structures (passive ROM) relative to the individual's ability to produce motion at a joint (active ROM). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Here, there is no indication that passive ROM in this case would be more limited than active. As such, the Board concludes that the absence of findings related to passive ROM does not render the available evidence inadequate for rating purposes and will evaluate the Veteran's joint range of motion based on the measurements recorded for active ROM and look at the Veteran's total left-hand disability picture. The Veteran underwent a second VA examination for his left thumb disability in October 2019. He was noted to be right hand dominant but denied flareups of the left thumb. He did endorse functional loss or functional impairment of the left hand, stating that "I can't make a fist because my thumb won't bend." His fingers all had maximum extension and flexion. His thumb had maximum extension, but flexion was limited to 0 degrees for the MCP and IP joints. He did not have a gap between the pad of his thumb and his fingers. The examiner noted pain on opposition to the thumb and with use of the hand. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion afterwards. While the Veteran was not examined immediately after repetitive use over time, the examiner recorded that the examination was neither medically inconsistent nor medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner determined that pain significantly limited functional ability with repeated use over a period of time and noted ROM test results of maximum extension and flexion limited to 0 degrees for the MCP and IP joints. The examiner noted that there were no additional limitations due to flare ups; however, ROM test results were noted to be the same as on repetitive use. The Veteran was found to have normal muscle strength (5/5) and no evidence of muscle atrophy. The examiner found ankylosis in the MCP and IP joints on extension, but no evidence of rotation or angulation of a bone. The examiner noted that the Veteran's thumb is fixed in an extension position and was unable to flex at either the MCP or the IP joints. In addition, the examiner found that the ankylosis condition did not result in limitation of motion of the other digits or interference with the overall function of the hand. Further, the examiner found that there was no functional impairment of the left thumb such that no effective function remained other than that which would be equally well served by amputation. The examiner also noted functional impact with difficulty in grasping, handling, lifting, and writing. The examiner noted pain on passive ROM and on non-weight bearing testing; however, ROM results were the same as the results previously reported by the examiner. The Board also notes lay statements from the Veteran's co-worker, detailing his observation of the limited function of the left thumb that would cause grip loss. Analysis After review of the competent and probative evidence, the Board finds that a rating of 20 percent, but no higher, is warranted for the entire appeal period. The assignment of a particular diagnostic code is completely dependent on the facts of a particular case, and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. The Board finds that DC 5228 does not adequately encompass the Veteran's symptomology, which should be rated under a different diagnostic code, DC 5152. Under DC 5152, a 20 percent rating is warranted for thumb amputation at the metacarpophalangeal joint of the minor hand, which is the Veteran's left hand. While there appears to be some inconsistency in the record, the March 2015 private examination report and October 2019 VA examination report reflect that there was ankylosis in both the MCP and IP joints in extension. Under the rating criteria, ankylosis of both the carpometacarpal and interphalangeal joints, with either joint in extension is to be rated by the adjudicator as amputation at the metacarpophalangeal joint. Ankylosis of the minor carpometacarpal joint, with the resultant limitations in gripping, is found to most nearly approximate the 20 percent for thumb amputation. However, the disability picture is not equivalent to amputation of the thumb with metacarpal resection, and as such the 30 percent rating does not apply. The Board notes that it is permissible to change the applicable diagnostic code to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). In this case, the reassignment of the diagnostic code does not result in a de facto reduction or severance of service connection. Furthermore, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current rating already compensates the Veteran for any functional loss due to pain affecting the left thumb, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his left thumb symptoms warrant a higher rating. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 20 percent for his left thumb disability during the appeal period based on the symptomology present. His current symptomology is encapsulated in the rating assigned herein under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. 2. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis. 3. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis. The Veteran contends that his bilateral knee disabilities are worse than the ratings currently assigned. The August 2013 rating decision on appeal granted service connection for a bilateral knee disorder and awarded noncompensable ratings for each knee, effective March 1, 2013. The Veteran timely appealed this determination to the Board. During the pendency of this appeal, the Veteran's bilateral knee ratings were increased to 10 percent effective March 1, 2013. Law and Regulations The Veteran's bilateral knee disability has been evaluated under DCs 5003-5260. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under the old rating criteria, DC 5003 governs arthritis. Under DC 5003, VA must rate such arthritis based on limitation of motion of the specific joint or joints involved, in this case, the knees. 38 C.F.R. § 4.71a, DC 5003. Under the new rating criteria, DCs 5003 and 5010 govern arthritis. Under both 5003 and 5010, VA must rate such arthritis based on limitation of motion, dislocation, or other specified instability. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). Limitation of motion for the knees is evaluated under DCs 5260 and 5261. Id. The Board notes that the rating criteria for these diagnostic codes were unchanged by the February 7, 2021 revisions. DC 5260 refers to limitation of motion in flexion of the knee and leg. Under this diagnostic code, flexion limited to 60 degrees is non-compensable. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants the maximum rating under DC 5260, which is 30 percent. 38 C.F.R. § 4.71a, DC 5260. DC 5261 refers to limitation of motion in extension of the knee and leg. Under this diagnostic code, 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 the maximum rating under DC 5261, which is 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). DC 5257 governs other impairments of the knee. Prior to February 7, 2021, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Subsequent to February 7, 2021, DC 5257 governs recurrent subluxation or instability as well as patellar instability. A 10 percent rating is warranted for (1) a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, or (2) 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. In addition, 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. A 20 rating is warranted for: (1) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing; or (3) 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 for ambulation. Id. A 30 percent rating is warranted for: (1) 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 or (2) 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 walker. Id. As discussed above, in evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. See DeLuca, 8 Vet. App. 202. Factual History A review of the post service VA treatment records note complaints of bilateral knee pain. However, the Board finds the complaints of bilateral knee pain to be well documented in the record and these reports do not include evidence of any additional rating criteria for the knees, so the Board will not discuss these reports any further. Gonzalez v. West, 218 F.3d at 1378, 1380-81 (2000). The Veteran underwent a VA examination in December 2012. He was diagnosed with bilateral knee osteoarthritis. The examiner noted the Veteran's reports of "on and off pain" while playing sports over the last few years, but the Veteran denied any flareups. For his initial ROM for both knees, he had flexion of 140 degrees or greater and no limitation of extension. No objective evidence of painful motion was observed by the examiner. The Veteran was able to perform repetitive-use testing with three repetitions. Following repetition, his bilateral knee ROM showed no additional limitation of flexion or extension. The examiner also found no additional functional or limitations contributing to the Veteran's bilateral knee disability. There was no evidence of pain on palpation. Muscle strength revealed a score of 5/5 for bilateral knee flexion and 5/5 for extension. No evidence of muscle atrophy or ankylosis was found. Joint stability tests were revealed to be normal. No history of recurrent subluxation, lateral instability or recurrent effusion was found. The report indicates there was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not currently have and had never reported experiencing "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report indicated that there were no meniscal conditions or surgical procedures for a meniscal condition. The examiner noted that there was no total knee joint replacement. The report also indicated that there was no arthroscopic or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars or use of an assistive device in order to ambulate. Interpretation of imaging studies revealed degenerative or traumatic arthritis in both knees. However, there was no evidence of patellar subluxation. Finally, the examiner found that the bilateral knee disability did not impact the Veteran's ability to work. The Veteran submitted a private medical assessment in May 2015. The assessment did not note any diagnosis, medical history, or report of flare ups. For his initial ROM of both knees, he had flexion of 135 degrees with no limitation of extension. Painful motion was noted at flexion of 130 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Following repetition, his bilateral knee ROM showed no additional limitation of flexion or extension. The private examiner noted additional functional loss with bilateral weakened movement, excess fatigability, and pain on movement. However, the examiner did not report any ROM results. Pain on palpation was noted for both knees. Muscle strength revealed a score of 4/5 for bilateral flexion and extension. Joint stability tests were found to be normal. In addition, the private examiner found no evidence of recurrent patellar subluxation/dislocation. The examiner found evidence of resolved "shin splints," but noted no evidence stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report indicated that there were no meniscal conditions or surgical procedures for a meniscal condition. The examiner noted that there was no total knee joint replacement. The report also indicated that there was no arthroscopic or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars or use of an assistive device in order to ambulate. Interpretation of imaging studies revealed degenerative or traumatic arthritis in both knees. However, there was no evidence of patellar subluxation. Finally, the examiner found that the bilateral knee disability impacted the Veteran's ability to work by noting pain with walking, running, bending, lifting, and climbing stairs or ladders. The Veteran underwent a second VA examination in February 2016. He was diagnosed with bilateral knee osteoarthritis. The Board notes that there is missing information in the medical history section of the report. The examiner did note that the Veteran denied flare ups or additional functional loss. For his initial ROM for the knees, he had flexion of 140 degrees and extension from 140 to 0 degrees. There was no pain noted on examination. The Veteran was not able to perform repetitive-use testing with three repetitions. However, no reason was provided by examiner as to why the repetitive use testing was not conducted. Regarding the right knee, the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limit the functional ability of the right knee with repeated use over time. Regarding the left knee, the examiner note that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also noted that pain, weakness, and fatigue, significantly limited the functional ability of the left knee with repeated use over time. However, the examiner was not able to describe in ROM terms, stating that the ROM depended on the pain level. The examiner found no additional factors contributing to the Veteran's right knee disability, but found less movement than normal, swelling, interference with sitting and standing that contributed to the left knee disability. Muscle strength revealed a score of 5/5 for bilateral knee flexion and 5/5 for extension. No evidence of muscle atrophy or ankylosis was found. Joint stability tests were revealed to be normal. No history of recurrent subluxation, lateral instability or recurrent effusion was found. The report indicates there was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not currently have "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report indicated that there were no meniscal conditions or surgical procedures for a meniscal condition. The examiner noted that there was no total knee joint replacement. The report also indicated that there was no arthroscopic or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars or use of an assistive device in order to ambulate. Furthermore, the examiner found that there was functional impairment of the bilateral extremities such that no effective function remained other than that which would be equally well served with amputation. Finally, the examiner noted functional impact of the bilateral knees with inability to complete job tasks due to ROM and physical demands. The Veteran underwent a third VA examination in December 2019. He was diagnosed with bilateral knee osteoarthritis. He also reported chronic bilateral knee pain and endorsed flare ups of knee soreness when walking too much. In addition, he endorsed additional functional loss due to his inability to run. For his initial ROM for the knees, he had flexion of 120 degrees and extension of 120 to 0 degrees, with pain noted on flexion and extension that resulted in functional loss. The examiner found objective evidence of pain on weight bearing and evidence of crepitus. He was able to perform repetitive-use testing with three repetitions with no additional loss of ROM. The report indicates that additional bilateral ROM limitation of flexion of 115 degrees and extension of 115 to 0 due to pain resulting from repetitive use testing and pain resulting from flare ups. The examiner did not find additional functional loss of the knees. Muscle strength revealed a score of 5/5 for bilateral knee flexion and 5/5 for extension with no evidence of muscle atrophy. Joint stability tests were normal. No evidence of recurrent subluxation, lateral instability, or recurrent effusion was found. The report indicates there was no evidence or history of ankylosis, recurrent patellar subluxation/dislocation, or effusion. The Veteran did not currently have "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report indicated that there were no meniscal conditions or surgical procedures for a meniscal condition. The examiner noted that there was no total knee joint replacement. The report also indicated that there was no arthroscopic or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars. The examiner did note constant use of bilateral knee braces and occasional use of a cane as assistive devices for ambulation. Further, the examiner found functional loss of the knees with running, crouching, crawling, prolonged walking or standing. Finally, the examiner did note objective evidence of bilateral knee pain on passive range of motion testing and non-weight bearing testing, however ROM was the same as active ROM. Analysis Having reviewed the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's bilateral knee disability. Throughout the appeal period, the Veteran's bilateral knees have not resulted in limitation of flexion or extension sufficient to meet the requirements for a compensable rating under DC 5260 and 5261. Instead, the Veteran has been assigned a 10 percent rating for each knee for functional loss due to painful motion. This 10 percent rating for painful motion has been assigned pursuant to 38 C.F.R. § 4.59, which allows for the lowest compensable rating available for limitation of motion for a joint if there is acknowledged painful motion. However, a higher rating for limitation of motion is determined based on the actual range of motion. For the knee, a higher rating of 20 percent for limitation of motion requires flexion limited to 30 degrees or extension limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 and 5261. However, physical examination indicates that the Veteran's flexion was consistently, at its lowest 140 degrees or 115 degrees when painful motion is considered, and his extension was unlimited, even with consideration of painful motion. As the Veteran's measured range of motion is not commensurate with the criteria for a 20 percent rating for either flexion or extension of either knee, a higher rating is not warranted based on limitation of motion. Indeed, his flexion and extension measurements do not even meet the criteria for non-compensable, or zero percent, disability ratings under DC 5260 (flexion limited to 60 degrees) and DC 5261 (extension limited to 5 degrees), respectively. Nor is a higher rating warranted for additional functional limitation of motion. The Board acknowledges the Veteran's reports of knee pain. However, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell, 25 Vet. App. 32. Physical examination of the Veteran consistently indicated no additional limitation of motion that was commensurate with a higher rating. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca, 8 Vet. App. at 202. Additionally, the Veteran is already compensated for his bilateral knee pain; specifically, he has been assigned a 10 percent rating because of pain in both knees pursuant to 38 C.F.R. § 4.59. Regarding any evidence of knee instability under both the old and new criteria for DC 5257, the Board finds that the evidence of record does demonstrate any knee instability that would warrant a separate compensable rating for either knee. The most recent VA examination report noted the Veteran's reports of using bilateral knee braces for support but found normal joint stability on examination. In addition, there is no evidence that the bilateral knee braces were prescribed for any knee instability. Furthermore, there is no competent medical evidence demonstrating any patellar instability or recurrent subluxation/instability for either knee. There has been no evidence presented that demonstrates to the Board that there is instability in either knee. As such, a separate compensable rating for knee instability does not apply. The Board also finds that a higher rating is not warranted under other diagnostic codes relating to the knee and leg. The probative evidence indicates that there has been no ankylosis of the knees and the Veteran has not alleged as such. Therefore, DCs 5055 and 5256 are not for application. 38 C.F.R. § 4.71a. The medical evidence also does not show laxity or subluxation of the bilateral knees. All of the VA examinations during the period on appeal have reported normal joint stability. Accordingly, the preponderance of the evidence does not indicate a 20 percent rating under DC 5258 for dislocated cartilage, semilunar with frequent locking, pain and effusion is warranted. 38 C.F.R. § 4.71a. The Board notes, the use of the word "and" indicates that the criteria are conjunctive; and all of these criteria have not been found for his bilateral knees during the period on appeal. Consideration has also been given to assigning staged ratings. However, throughout the appeal period, the Veteran had noncompensable limitation of motion of the bilateral knees with associated pain. Accordingly, the Board finds that the disorders have not significantly changed, and a uniform rating for each disability is warranted. Thus, there is no basis for assigning staged ratings. The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The most recent VA examination contained complete assessments of pain on both active and passive motion, in weight-bearing and non-weight-bearing. To the extent that other examinations cited herein did not explicitly provide these findings, the Board reiterates the pertinent ratings of the knee with or without symptoms such as pain. Thus, any deficiency of the knee examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating. Additionally, to the extent that earlier examinations discussed herein did not explicitly provide findings of pain on both active and passive motion, or in weight-bearing and non-weight-bearing, they are nonetheless the most probative evidence available with regard to the severity of the disabilities at the time those examinations were conducted. Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the contemporaneous range of motion evidence already of record. Therefore, remand for any additional retrospective opinion is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). In light of the aforementioned evidence, the Board determines that ratings of 10 percent, but no higher, are warranted for the Veteran's bilateral knee disability throughout the appeal period. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan, 451 F.3d 1331; Washington, 19 Vet. App. at 368-69. The Veteran contends that his right knee symptoms warrant a higher rating. The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. Layno, 6 Vet. App. 465. That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 10 percent currently assigned for his bilateral knee disability during the appeal period based on the symptomology present. His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, his claim for an increased rating is denied. T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.