Citation Nr: 21031285 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-15 605 DATE: May 21, 2021 ORDER An initial disability rating greater than 10 percent for degenerative joint disease of the left knee is denied. An initial disability rating in excess of 10 percent prior to September 29, 2020 for subluxation of the left knee is denied. A disability rating of 10 percent for subluxation of the left knee is granted as of September 29, 2020. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left knee disability has been manifested by, at worst, flexion to 70 degrees and extension to 5 degrees, even in contemplation of functional loss due to pain and other factors, or as a result of repetitive motion or flare-ups. There is no demonstration of ankylosis, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 2. While there is currently no objective evidence of instability of the left knee, the Veteran is competent and credible in asserting instability in the knee; this supports a finding of no more than slight instability of the left knee throughout the entire appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for degenerative joint disease of the left knee are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010. 2. The criteria for an initial disability rating prior to September 29, 2020 in excess of 10 percent for subluxation of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257; English v. Wilkie, 30 Vet. App. 347 (2018). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a disability rating of 10 percent for subluxation of the left knee have been met since September 29, 2020. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257; English v. Wilkie, 30 Vet. App. 347 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in part, granted service connection for left knee subluxation and residual scar, and left knee degenerative joint disease, chronic, mild; status post left knee arthroscopic lateral release, assigning separate 10 percent disability ratings effective December 26, 2010. In September 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the proceeding has been associated with the claims file. In December 2018, the Board continued the separate 10 percent disability ratings for subluxation and degenerative joint disease of the left knee and granted a separate 10 percent disability rating for painful scar of the left knee. The Veteran appealed the Board's December 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board's December 2018 decision with respect to the issues concerning disability ratings greater than 10 percent for subluxation and degenerative joint disease of the left knee. Notably, the October 2019 Joint Motion did not disturb the Board's decision concerning a separate 10 percent disability rating for painful scar of the left knee. In May 2020, the Board remanded the case for additional development, to include affording the Veteran a new VA knee examination, as directed by the October 2019 Joint Motion. Thereafter, by rating decision dated in November 2020, the RO granted a separate noncompensable disability rating for loss of extension of the left knee and decreased the Veteran's disability rating for left knee instability from 10 percent to noncompensable effective September 29, 2020. While the May 2020 Board remand also directed the RO to obtain updated VA treatment records and such was not accomplished, the Board finds that there has been substantial compliance with the remand directives as updated VA treatment records are not necessary at this point in time, given that the findings of the September 2020 VA examination adequately reflect the current nature of the Veteran's left knee disabilities. Thus, the Board finds substantial compliance with its remand instructions, or that any deficiency was harmless error. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher 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. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the 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 may be 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. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the knees are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claims at this time. Analysis The Veteran seeks a higher disability rating for his service-connected left knee disabilities. By way of history, the Veteran's service treatment records show that he began experiencing problems with his left knee in 2006 and underwent left knee arthroscopic lateral release in April 2009. He submitted an initial claim for service connection for a left knee disability in February 2011 and, by rating decision dated in March 2012, the RO granted service connection for degenerative joint disease of the left knee, status post left knee arthroscopic lateral release as well as subluxation and residual scar, assigning separate 10 percent disability ratings effective December 26, 2010. The Veteran disagreed with this decision and perfected this appeal. The Veteran's degenerative joint disease of the left knee is currently rated under 38 C.F.R. § 4.71a, DC 5010. Prior to February 7, 2021, DC 5010 pertained to traumatic arthritis which was rated as degenerative arthritis under DC 5003. Pursuant to DC 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a , DCs 5003, 5010. Beginning February 7, 2021, DC 5010 provides that post-traumatic arthritis is rated under limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. DCs 5260 and 5261 pertain to limitation of the knees. Pursuant to DC 5260, a noncompensable rating is warranted when there is limitation of flexion of a leg to 60 degrees. A 10 percent disability rating is warranted if flexion is limited to 45 degrees. A 20 percent disability rating is warranted if flexion is limited to 30 degrees. A 30 percent disability rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, pursuant to DC 5261, a noncompensable rating is warranted when there is limitation of extension of a leg to 5 degrees. A 10 percent disability rating is warranted if extension is limited to 10 degrees. A 20 percent disability rating is warranted if extension is limited to 15 degrees. A 30 percent disability rating is warranted if extension is limited to 20 degrees. A 40 percent disability rating is warranted if extension is limited to 30 degrees. A 50 percent disability rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Where a claimant has both limitation of flexion and limitation of extension of the same leg, he must be rated separately under DC's 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (September 17, 2004). Under certain circumstances, a separate disability evaluation may be assigned for arthritis of the knee under DC 5003 in addition to the rating for instability under DC 5257. VAOPGCPREC 9-98 and VAOPGCPREC 23-97. A number of other diagnostic codes also potentially apply to knee ratings. Under DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under DC 5257, 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. Under DC 5258, dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. Under DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. Notably, beginning February 7, 2021 DC 5257 clarifies the meaning of slight, moderate, and severe instability and requires that the condition be diagnosed based on objective medical findings. Evidence relevant to the current level of severity of the Veteran's left knee disability includes VA knee examinations dated in July 2011, February 2013, September 2016, and September 2020. During the July 2011 VA general examination, the Veteran reported that he experienced daily mechanical left knee pain with a severity of 5-6/10. He also experienced flare-ups of similar pain but with a severity of 7/10 three times per month which will last for one to two hours. He also reported experiencing episodic effusion three times per week which will last for several hours. According to the Veteran, his left knee gave way frequently. He reportedly used an over-the-counter shelf knee brace for the left knee which was somewhat beneficial and denied any ill effects other than it felt tight. The Veteran denied the use of medications for the condition. The Veteran was a full-time community college student. He reported that he could no longer run due to knee pain and also had trouble with stairs and ladders. On physical examination of the knees, the Veteran's knees appeared normal without visible arthropathy or effusion and the skin was of normal color and temperature. There were three arthroscopic portal scars on the lateral aspect of the left knee. The superior scar measured 5x4 millimeters (mm) in diameter and the inferior scar measured 5x3 mm in diameter on the medial side. The portal scar was 1-3 mm. All three scars were well healed and barely visible without signs of inflammation, infection, adhesion, depression, or keloid formation. They were also non-disfiguring and had a total surface area of 0.58 square centimeters. There was no ligamentous laxity and McMurray's sign was negative but patellar compression test was positive with pain and crepitus. Range of motion testing of the left knee revealed flexion to 125 degrees and normal extension (to 0 degrees). Range of motion testing of the right knee was also performed but will not be discussed. There was no apparent pain, weakness, fatigability, or loss of coordination during or following three repetitions of the range of motion. X-ray examination of the left knee revealed mild degenerative arthritic changes. The examiner diagnosed left knee degenerative joint disease, chronic, mild; status post left knee arthroscopic lateral release in April 2009. During the February 2013 VA knee examination, the examiner continued a diagnosis of left knee degenerative joint disease and lateral meniscal tear secondary to plica syndrome status post-surgical repair. At the time of the examination, the Veteran reported experiencing pain on a daily basis in the left knee with associated swelling during exercise. Pain was increased with sitting or standing for over 5 minutes. The Veteran also had difficulty sitting, standing, and/or driving for over an hour. It was noted that a 2011 magnetic resonance imaging (MRI) scan revealed lateral meniscus tear and mild degenerative joint disease of the left knee. The Veteran reported experiencing flare-ups of the left knee. Range of motion testing of the left knee revealed flexion to 130 degrees (with pain beginning at 100 degrees) and again normal extension to 0 degrees. The Veteran was able to perform repetitive use testing with three repetitions. Flexion remained to 130 degrees and extension remained to zero degrees after repetitive testing. The examiner noted that there was no additional limitation of motion of the knees following repetitive use testing but there was functional loss and/or functional impairment of the left knee, specifically less movement than normal, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. The examiner also noted tenderness or pain to palpation of the joint line or soft tissues of the left knee. Range of motion testing of the right knee was also performed but will not be discussed. Muscle strength testing was normal for knee flexion and extension. Joint stability testing, specifically anterior instability (Lachman test), posterior instability (posterior drawer test), and medial-lateral instability) was also normal. There was evidence of mild recurrent patellar subluxation or dislocation. There was no history of "shin splints" (medial tibial stress syndrome), stress fracture, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There was a meniscal condition, specifically meniscal tear of the left knee, but the Veteran had not undergone meniscectomy. There was a history of left knee plica repair and debridement resulting in intermediate decrees of residual weakness, pain, or limitation of motion. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms, other than scars which were neither painful and/or unstable and did not have a total area greater than 39 square centimeters. The Veteran denied using an assistive device and the examiner noted that the Veteran's left knee disorder did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies showed arthritis but were negative patellar subluxation. The examiner found that the Veteran's left knee disability impacted his ability to work in that he was unable to engage in manual labor but was able to engage in sedentary employment. During the September 2016 VA examination, the examiner continued diagnoses of left knee degenerative arthritis as well as left knee subluxation. The Veteran reported suffering from more frequent pain in his left knee and his knee giving out more frequently. He described the pain as sharp and throbbing and rated the pain an eight out of 10. He treated his pain with over-the-counter pain medication as well as occasional injections. He stated that the pain was aggravated by sitting for more than 15 to 20 minutes, standing for more than 5 to 10 minutes, and walking for more than 20 to 25 minutes. Further, he was unable to run, squat, lift more than 15 to 20 pounds, sit with his legs crossed or with his knee in flexion, or perform household chores. However, he denied any limitation with his daily living activities. In terms of flare-up episodes, he reported that they occurred daily. They lasted for five minutes at a time and consisted of increased pain that stopped him in his tracks, which he rated between nine and 10 out of 10. The Veteran also reported experiencing functional loss/impairment, described as an inability to squat and get back up. Upon range of motion testing, the Veteran had flexion to 130 degrees and extension to 0 degrees. Significantly, the examiner found that the Veteran's range of motion was normal given his age and body habitus and that the Veteran's range of motion did not contribute to a functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the left knee as well as crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion after three repetitions. The Veteran's left knee was not examined immediately after repetitive use over time and/or during a flare-up and the examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time and/or during a flare-up. While pain, fatigue, weakness, lack of endurance and incoordination would significantly limit functional ability during a flare-up and with repetitive use over time, the VA examiner was unable to describe this in terms of range of motion because the examination was conducted neither immediately following repetitive use over time nor during a flare-up. Additional factors of disability included disturbance of locomotion, interference with sitting, and interference with standing. The Veteran could only in engage in prolonged sitting for 15 to 20 minutes, standing for 5 to 10 minutes, walking for 20 to 25 minutes, and lifting more than 15 to 20 pounds. Also, the Veteran was unable to run, squat, sit with his legs crossed, or perform certain household chores/activities. Muscle strength testing was negative and there was no evidence of muscle atrophy. There was no evidence of ankylosis. There was no history of recurrent subluxation but there was a history of severe left lateral instability as well as recurrent effusion. However, joint stability testing was negative. There was no evidence of "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There was also no indication that the Veteran had a meniscus condition as the Veteran underwent meniscectomy in 2008 and 2015. There were no other pertinent findings other than scars. The Veteran reported using an assistive device to aid in locomotion due to his left knee disability, specifically regular use of a brace and occasional use of a cane. The examiner noted that the Veteran's left knee disorder did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed arthritis. The examiner found that the Veteran's left knee disability impact his ability to perform occupational tasks, specifically the Veteran could only in engage in prolonged sitting for 15 to 20 minutes, standing for 5 to 10 minutes, walking for 20 to 25 minutes, and lifting more than 15 to 20 pounds. During the September 2020 VA knee examination, the examiner continued a diagnosis of left knee meniscal tear as well as chondromalacia with degenerative arthritis. At that time, the Veteran reported experiencing constant left knee pain with an intensity of 6/10 and intermittent flare-ups. He also reported that his left knee "goes out" occasionally, described as occurrences when his knee becomes so painful that he cannot put pressure on it or bend it. It was noted that the Veteran worked as an emergency room coordinator at a hospital. The Veteran reported experiencing flare-ups of the left knee, described as occurring with prolonged standing or sitting of greater than one hour. This was described as being 9/10 in severity, lasting approximately 20 minutes, and resulting in the Veteran having to walk slower. The Veteran also reported experiencing functional loss/impairment of the left knee, described as difficulty getting back up after squatting as well as increased knee pain after prolonged standing/sitting greater than one hour. Range of motion testing of the left knee revealed flexion to 110 degrees and extension to 2 degrees. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue (described as mild tenderness in the medial and lateral knee joint) as well as objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of motion The Veteran's left knee was not examined immediately after repetitive use over time and the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and resulted in the following additional loss of motion: flexion to 90 degrees and extension to 5 degrees. The Veteran's left knee was not examined during a flare-up and the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability during a flare-up and resulted in the following additional loss of motion: flexion to 70 degrees and extension to 5 degrees. Range of motion testing of the right knee was also performed but will not be discussed. There were no additional factors contributing to disability. Additional factors contributing to disability included disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, there was no reduction in muscle strength, and there was no muscle atrophy. There was also no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed and was negative for any instability. There was no evidence of "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. With regard to meniscal conditions, it was noted that the Veteran had a history of meniscal tear, frequent episodes of joint pain/effusion, as well as previous meniscectomy. There were no other pertinent findings, other than scars. The Veteran denied using an assistive device and the examiner noted that the Veteran's left knee disorder did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed arthritis. The examiner found that the Veteran's left knee disability impacted his ability to perform occupational tasks. Specifically, it was noted that the Veteran's left knee disability impaired his capacity to perform occupational tasks that require repetitive kneeling, squatting, stairs/ladders, or prolonged standing/walking. However, the Veteran's left knee disability did not preclude sedentary activities. With regard to Correia, the examiner noted that passive range of motion testing was also completed and was the same as active range of motion. With regard to weight bearing testing of the left knee, the examiner noted that this was not physiologically feasible. Only extension could be measured when the knee is actively extended and the Veteran had full extension when standing (i.e., weight bearing). The September 2020 VA examiner also provided a retrospective opinion as to whether there would be additional limits on the Veteran's functional ability on repeated use or during flare-ups based on allegations made during the July 2011, February 2013, and September 2016 VA examinations. Significantly, the September 2020 VA examiner wrote that the nature of the Veteran's flare-ups from 2011 to 2016 is the same as it currently is and that, therefore, the additional limits on his functional ability on repeated use or during flare-ups is the same as noted in the September 2020 VA examination. The September 2020 VA examiner was also asked to consider the seemingly inconsistent findings when comparing December 2012 and September 2016 lay reports of instability with the finding of no instability in the September 2016 VA examination report. Upon consideration of this evidence, the September 2020 VA examiner indicated that he could find no objective evidence of knee subluxation in September 2020. Also of record are VA and private treatment records dated through November 2016. These records show treatment for the Veteran's left knee. In particular, September and October 2011 VA treatment record shows complaints of left knee pain, swelling, and instability but, on each occasion, the examiner found that the Veteran's range of motion for the left knee was within normal limits. VA treatment notes from 2012 are limited, but they disclose that he continued to report knee pain, popping, locking, grating and giving way. Even still, he continued to exhibit full range of motion of the left knee. A VA treatment note from February 2013 shows the Veteran continued to demonstrate patellar tracking upon examination, but there was no evidence of instability following a ligamentous examination. Even so, he had good range of motion. The Veteran continued to complain of left knee pain into 2014 and underwent left knee arthroscopy and chondroplasty in August 2014. Immediately following these procedures, his range of motion was decreased. Specifically, while he was able to achieve extension of 0 degrees, he was only able to achieve flexion of 110 degrees. While the Veteran reported falling in October 2014, it was because he tripped over his dog and fell on his left knee. There is a dearth of VA treatment records from 2015. The available VA treatment records disclose the Veteran continued to report pain in his left knee, which was worse following a busy day of walking or standing. He relayed having difficulty with sitting with the knee flexed for any amount of time. Notably, a January 2015 VA treatment record shows flexion to 120 degrees and extension to 0 degrees. There was no evidence of instability and his muscle strength was normal in all respects. In a January 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire completed by Dr. M.U.B. the Veteran had flexion to 140 degrees and extension to 0 degrees. Significantly, this report is positive for flare-ups but is negative for a history of recurrent subluxation or lateral instability. Dr. M.U.B. also noted that the Veteran had previously had a meniscal tear, but it was asymptomatic at the time of examination. Dr. M.U.B. found that while pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or with repetitive use over time, it was not feasible to express in terms of degrees the resulting limitation of motion due to these symptoms. Furthermore, during the September 2016 Board hearing, the Veteran provided testimony regarding the functional impairment he exhibits due to his service-connected left knee disabilities. Significantly, the Veteran testified that his knee will "give out" on him while walking and his knee gave out on him just three days earlier. He also reported constant cracking and popping of the knee and that it locks up on him occasionally. The Veteran also testified that, while he was not currently working, he was a full-time student. 1. An initial disability rating greater than 10 percent for degenerative joint disease of the left knee is denied. Given the evidence of record, the Board finds that a disability rating greater than 10 percent is not warranted for loss of flexion pursuant to DC 5260. As above, the Veteran had flexion to 125 degrees during the July 2011 VA examination, flexion to 130 degrees (110 degrees with pain) during the February 2013 VA examination, flexion to 130 degrees during the September 2016 VA examination, and flexion to 110 degrees (90 degrees with repetition and 70 degrees with flare-ups) during the September 2020 VA examination. Such range of motion findings are consistent with VA treatment records during these same periods of time. Pursuant to DC 5260, a 20 percent evaluation is only warranted if flexion is limited to 30 degrees or less. As such a disability rating greater than 10 percent is not warranted for the Veteran's loss of left knee flexion pursuant to DC 5260. Furthermore, the Veteran is already in receipt of a separate noncompensable rating for his loss of extension to 5 degrees during the September 2020 VA examination. A compensable rating is not warranted under DC 5261 unless extension is limited to 10 degrees. With regard to the potential for a higher rating for the left knee based upon additional loss of motion due to flare-ups of the left knee pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board notes that, even considering the Veteran's flare-ups during the September 2020 VA examination, the Veteran still had flexion to 75 degrees. As for the period of time prior to September 2020, the September 2020 VA examiner found that the nature of the Veteran's flare-ups from 2011 to 2016 is the same as it currently is and that, therefore, the additional limits on his functional ability on repeated use or during flare-ups is the same as noted in the September 2020 VA examination. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear and, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time additionally limited function in a quantifiable way, nor did they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. The Board accepts that the Veteran has functional impairment, pain, and pain on motion (see DeLuca) and finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 10 percent rating is warranted and no more. Moreover, as there is no evidence of ankylosis, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, DCs 5256, 5258, 5262, and 5263 are not for application. As for the scars of the Veteran's knees, the Board notes that the Veteran is in receipt of a separate 10 percent disability rating for a painful scar of the left knee and has not expressed disagreement with this disability rating. As such, an initial disability rating greater than 10 percent the left knee is not warranted. 2. An initial disability rating in exess of 10 percent, prior to September 29, 2020 is denied for subluxation of the left knee; however, continuation of the 10 percent rating is granted as of September 29, 2020. As above, based on findings of instability of the left knee in a July 2011 VA examination, by rating decision dated in March 2012, the RO granted service connection for subluxation of the left knee, assigning a 10 percent disability rating effective December 26, 2010. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in November 2020, the RO decreased the Veteran's disability rating for left knee instability from 10 percent to noncompensable effective September 29, 2020. This was based on the findings of no instability in the subsequent February 2013, September 2016, and September 2020 VA examinations. Significantly, the September 2020 VA examiner was also asked to consider the seemingly inconsistent findings when comparing December 2012 and September 2016 lay reports of instability with the finding of no instability in the September 2016 VA examination report. Upon consideration of this evidence, the September 2020 VA examiner indicated that he could find no objective evidence of knee subluxation in September 2020. However, the Veteran has consistently reported experiencing instability of the left knee during the pendency of this appeal. Furthermore, pursuant to English v. Wilkie, 30 Vet. App. 347, 349 (2019), objective evidence of lateral instability is not required to assign a rating under DC 5257. Accordingly, while the February 2013, September 2016, and September 2020 VA examinations found no evidence of instability on testing, the Board finds that the Veteran is competent and credible in asserting instability in the knees, to include giving out. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and find that slight recurrent lateral instability is shown to warrant a 10 percent disability rating under DC 5257 throughout the appeal. However, the Board finds that the preponderance of the evidence is against a finding of more than slight instability as objective signs or indicators of instability have not been found on examination, that would warrant a finding of more than slight recurrent lateral instability. Therefore, a separate rating of 10 percent, but not higher, for slight left knee instability is warranted throughout the appeal. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.