Citation Nr: 21032265 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 11-13 890 DATE: May 26, 2021 ORDER From March 1, 2009 to May 9, 2011, an initial compensable rating for left knee degenerative joint disease (DJD), with status post anterior cruciate ligament (ACL) reconstruction is denied. From May 10, 2011, a 10 percent rating, but no higher, for left knee DJD, with status post ACL reconstruction, is granted. From March 1, 2009 to July 13, 2014, a 10 percent rating, but no higher, for DJD with status post ACL reconstruction of right knee is granted. From July 14, 2014 to May 11, 2016, a rating in excess of 40 percent for DJD with status post ACL reconstruction of right knee is denied. From November 14, 2011, a rating in excess of 10 percent for right knee instability is denied. From July 1, 2017, a rating in excess of 30 percent for right total knee arthroplasty is denied. FINDINGS OF FACT 1. From March 1, 2009 to May 9, 2011, the Veteran's left knee DJD was manifested by flexion limited to 140 degrees and extension limited to 0 degrees, with no lay or clinical evidence of painful motion. 2. From May 10, 2011, the Veteran's left knee DJD was shown to cause painful motion, but without flexion limited to 60 degrees or worse; or extension limited to 10 degrees or more; ankylosis; recurrent subluxation or lateral instability; left meniscus removal, a dislocated meniscus with frequent episodes of locking, pain, and effusion; impairment of the tibia or fibula; or genu recurvatum. 3. From March 1, 2009 to July 13, 2014, the Veteran's right knee DJD was shown to cause painful motion, but without flexion limited to 60 degrees or worse; or extension limited to 10 degrees or more; ankylosis; left meniscus removal, a dislocated meniscus with frequent episodes of locking, pain, and effusion; impairment of the tibia or fibula; or genu recurvatum. 4. From July 14, 2014 to May 11, 2016, the Veteran's right knee DJD has not been shown to cause flexion limited to 60 degrees or worse, extension limited to 45 degrees or more; ankylosis; impairment of the tibia or fibula; or genu recurvatum. 5. From November 14, 2011, the Veteran's right knee was not manifested by moderate lateral instability, or worse. 6. From July 1, 2017, the Veteran's right knee replacement has not resulted in chronic residuals from total knee replacement surgery, such as severe painful motion or weakness; ankylosis; flexion limited to extension functionally limited to 5 degrees or more; extension limited to 60 degrees or less; genu recurvatum; or an impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. From March 1, 2009 to May 9, 2011, the criteria for an initial compensable rating for left knee DJD, with status post ACL reconstruction, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5263. 2. From May 10, 2011, the criteria for a 10 percent rating, but no higher, for left knee DJD, with status post ACL reconstruction, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5263. 3. From March 1, 2009 to July 13, 2014, the criteria for an initial 10 percent rating, but no higher, for right knee DJD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5263. 4. From July 14, 2014 to May 11, 2016, the criteria for a rating in excess of 40 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5263. 5. From November 14, 2011, the criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 6. From July 1, 2017, the criteria for a rating in excess of 30 percent for residuals following a total right knee replacement have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to September 1992 and from January 1994 to February 2009. This appeal was previously before the Board of Veterans' Appeals (Board) in October 2015, December 2017, and most recently in July 2019. Pursuant to the December 2017 Board remand, the Veteran was afforded a VA examination for his knees in February 2018. While the evidence of record indicated that the Veteran experienced flare-ups of bilateral knee pain in the winter that caused the need to sit, caused an unsteady gait, and an inability to straighten his legs at times, the February 2018 examination report indicated that the Veteran did not experience flare-ups of knee pain. The VA examiner stated that it was not feasible to produce an opinion about how pain, incoordination, weakness, or fatigability could limit functional ability. The examiner explained that there was no reason to add inaccurate information about how much decrease of range of motion, if any, occurred during flare-ups, since either the Veteran was experiencing a flare-up during examination and the decrease in range of motion would be subjective evidence of painful motion and noted on the examination, or the Veteran would not be experiencing a flare-up during the examination and his description of flare-ups would be an inaccurate self-serving non-objective statement. The July 2019 Board decision noted that the VA examiner's rationale was inadequate, as the examiner's role is not to simply record the Veteran's subjective complaints, but rather to provide a medical assessment on the additional functional limitations suffered by the Veteran, based on examination, interview with the Veteran, and a review of the medical record. As it was unclear whether the examiner's findings were influenced by this misconception, the Board found that remand was necessary for a more accurate examination of the Veteran's bilateral knee disabilities. The July 2019 Board decision also noted that a supplemental statement of the case (SSOC) was issued, but the SSOC failed to address the issue of the Veteran's right knee instability. The Board found that remand of the Veteran's right knee instability was required for issuance of a SSOC. The July 2019 Board decision also remanded for a new VA examination to assess the current severity of the Veteran's bilateral knee disability, consistent with Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner was also asked to elicit information regarding the history of the Veteran's flare-ups and to comment on the Veteran's flare-ups, expressed as additional loss of range of motion, if possible. Following the July 2019 Board remand, the Veteran was afforded VA examinations for his knees, in December 2019 and in July 2020. The Board notes that the Regional Office (RO) found that the December 2019 and July 2020 VA examinations were found to be inconsistent with the evidence of record. Specifically, the RO noted that the December 2019 VA examination noted no instability in either knee, whereas, the July 2020 examination report noted moderate instability in both knees. The RO found that a new VA examination was necessary to determine whether there was actual instability in the knees, or for the examiner to provide an opinion how a significant increase in instability occurred in the time between the VA examinations. Although the RO found that the December 2019 and July 2020 VA examinations were inconsistent regarding knee instability, the Board notes that the July 2020 VA examiner elicited information regarding the history of the Veteran's flare-ups and provided an opinion regarding functional loss, during a flare-up. The Veteran was afforded a VA examination in December 2020. The examiner provided a complete examination, consistent with Correia. Here, the December 2019, July 2020, and December 2020 VA examinations, in conjunction with one another, have addressed all of the July 2019 Board remand directives. The Board also notes that a January 2021 SSOC addressed the Veteran's increased rating claims for bilateral knee disabilities, to include the right knee instability. Further, the Board also notes that VA received the Veteran's representative's Appellate Brief in April 2021. The representative acknowledged that the Veteran received three VA examinations after the July 2019 Board remand and found that the third examination, in December 2020, was adequate in nature. As such, the Board finds that there has been substantial compliance with the July 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Diagnostic Codes 5258 and 5259 evaluate the semilunar cartilage, which is synonymous with the meniscus. Under Diagnostic Code 5258, when the meniscus is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. Under Diagnostic Code 5259, when the meniscus has been removed, but remains symptomatic, a 10 percent rating is assigned. Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (i.e. at least 10 percent) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the United States Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. The Board notes that a new General Rating Formula for knee disabilities applies to Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed May 5, 2021). Under these criteria regarding recurrent subluxation and instability, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear that causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Note (2). The Board also notes that Diagnostic Code 5262 has also changed, regarding, impairment of the tibia and fibula. However, the record contains no evidence of an impairment of the tibia and fibula. As such, the change in this Diagnostic Code does not affect the way his knees will be evaluated. 1. From March 1, 2009 to May 9, 2011, an initial compensable rating for left knee DJD, with status post ACL reconstructionprior is denied. 2. From May 10, 2011, a 10 percent rating, but no higher, for left knee DJD, with status post ACL reconstruction, is granted. The Veteran asserts that he is entitled to higher ratings, than those assigned, for his left knee disability. Specifically, he asserts that he has extensive arthritis pain, does not have normal range of motion, and cannot fully extend his left knee. See VA Form 9 dated May 10, 2011. In an April 2009 rating decision, a 0 (zero) percent disability rating was assigned to left knee DJD, effective March 1, 2009, a day after the Veteran's separation from the military. The noncompensable rating was assigned based on full and painless range of motion. In an August 2014 rating decision, a 10 percent disability rating was assigned, effective July 14, 2014, the date of a VA examination. The 10 percent rating was based on painful motion of the knee. 38 C.F.R. § 4.59. Here, the Board will determine whether the Veteran is entitled to higher and/or separate ratings than those assigned, for his left knee disability. The Veteran was afforded a VA examination in February 2009. On examination, flexion was to 140 degrees and extension to 0 degrees, with no objective evidence of pain noted on examination. There was no instability in the left knee. VA received the Veteran's VA Form 9 on May 10, 2011, which included statements and assertions of the Veteran. He reported that he had extensive pain in both knees and could not fully extend them. He also stated that his range of motion in his knees were not normal. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and 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. 38 C.F.R. § 4.59. Here, the Board finds that the Veteran is entitled to a 10 percent rating from May 10, 2011, based on his subjective reports of painful motion of his left knee. However, the Board finds that he is not entitled to an initial compensable rating for left knee DJD based on a limitation of motion because he showed full range of motion for both flexion and extension at the February 2009 VA examination, and such examination report does not reflect any subjective complaints or objective findings of pain on motion. The Board has carefully reviewed the Veteran's post-service medical records and there was no evidence of painful motion of the left knee and there is no range of motion testing which showed findings consistent with a compensable rating. Further, the Veteran did not indicate painful motion of the left knee, prior to the submission of his May 10, 2011 VA Form 9. There was no evidence of ankylosis, lateral instability impairment of the tibia and fibula, or genu recurvatum of the left knee and the Veteran did not describe or report symptoms of any of the aforementioned conditions. As such, a compensable rating left knee DJD is not warranted for the period prior to May 10, 2011. Accordingly, an initial compensable rating for left knee DJD is denied, but a 10 percent rating is granted, from May 10, 2011. From May 10, 2011 The Veteran was afforded a VA examination in July 2014. The Veteran reported that he could not straighten his left knee and that his left knee gives out. He reported that he usually has an achy-type pain, rated as 7/10, but during the winter, goes up to 10/10. He reported having flare-ups during the winter, which caused increased pain. On examination, he showed left knee flexion to 120 degrees and extension to 0 degrees. Painful motion was noted to begin at 120 degrees of flexion. He was able to perform repetitive use testing with no additional loss of range of motion. Joint stability testing showed normal results for the left knee. Muscle strength testing showed normal strength in the left knee. There was no indication that the Veteran had any meniscus problems in his left knee and there was no evidence of ankylosis. Here, based on the finding of painful motion of the left knee, the RO assigned the Veteran a 10 percent rating, from July 14, 2014, forward. However, this Board decision has found that the first indication that the Veteran had painful motion of the left knee began on May 10, 2011 and has assigned a 10 percent rating, effective as of that date. The Veteran was afforded a VA examination in February 2018. He reported pain in both of his knees. He did not report having flare-ups of the knees. On examination, he showed flexion to 115 degrees and extension to 0 degrees, with pain noted on examination, but did not result in functional loss. There was also evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Muscle strength testing showed normal strength of the left knee. There was no evidence of ankylosis. Joint stability testing showed no lateral instability. There was no evidence of tibial and/or fibular impairment in the left knee. There was evidence of a left meniscal tear. The examiner reported that the Veteran wore knee braces regularly. The Veteran was afforded a VA examination in December 2019. The Veteran reported bilateral knee pain, rated as 10/10 constant aching pain. He reported that he used knee braces on both knees. He did not report flare-ups in the knees. On examination, he showed flexion to 120 degrees and extension to 50 degrees. There was no pain noted on examination. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. The examiner did not provide any opinions on flare-ups because the Veteran reported that he did not have them. Muscle strength testing showed normal strength of the left knee. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed no lateral instability. There was evidence of shin splints, but otherwise no evidence of tibial and/or fibular impairment in the left knee. Corriea testing showed no objective evidence of pain on passive range of motion testing, weight-bearing, or in non-weight-bearing. The Veteran was afforded a VA examination in July 2020. The Veteran reported left knee pain, rated at 10/10. The Veteran reported having flare-ups of the knees and described a decreased range of motion and swelling; and occurred daily when walking on hard floors. On examination, he showed flexion to 90 degrees and extension to 15 degrees. There was pain noted on examination, and pain with weight-bearing. The examiner reported that the Veteran's range of motion was abnormal, but also noted that the Veteran had suboptimal effort during testing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Regarding flare-ups, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner reported that they were not able to describe in terms of range of motion. The examiner explained that after a review of the Veteran's records and giving consideration to his subjective complaints and objective examination findings, given their clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion during a flare-up. Muscle strength testing showed 3/5 strength in both left knee flexion and extension. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed slight posterior and anterior instability and moderate medial and lateral instability. The examiner indicated that he had moderate lateral instability of the left knee. There was no notation of any meniscal problems. The examiner noted that the Veteran used knee braces. Corriea testing showed objective evidence of pain on passive range of motion and in non-weight-bearing. The Veteran was afforded a VA examination in December 2020. The Veteran reported that he had worsening bilateral knee pain in the last few months and had a left knee injection in the last month. He described pain, stiffness, and occasional swelling in his knees. He reported that he did not have flare-ups of the knees. On examination, he showed flexion to 90 degrees and extension to 0 degrees, pain noted on examination, but did not result in functional loss. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Regarding flare-ups, the examiner did not provide an opinion because the Veteran denied having flare-ups. The examiner reported that there were additional factors that contributed to the disability; that he walked with a limp, had difficulty standing after sitting for a while, and pain while standing. Muscle strength testing showed normal strength in the left knee. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed normal stability in all areas of the left knee. The examiner noted that the Veteran had a left meniscal tear but did not have any associated symptoms. The examiner noted that the Veteran used knee braces on a regular basis. Corriea testing showed objective evidence of pain on passive range of motion and in non-weight-bearing. Regarding limitation of flexion in the left knee, at worst, he showed flexion limited to 90 degrees at both the July 2020 and December 2020 VA examinations. The Board acknowledges that the Veteran was reported to have pain on examination and has reported flare-ups, however, there has been no indication by any VA examiner that additional pain during a flare-up would cause any additional loss in terms of range of motion. Here, the July 2020 VA examiner opined that based on their clinical knowledge and medical expertise, there was no rational basis to make a notation regarding any additional losses of function or motion during a flare-up. Here, there has been no clinical evidence of flexion being limited to 60 degrees or worse, even in consideration of flare-ups and repetitive use. As such, the Veteran does not meet the criteria for an increased rating for limitation of flexion of the left knee. It is also worth noting that the Veteran was capable of performing repetitive motion testing without seeing additional limitation of motion, suggesting that while flare-ups might have caused an increase in symptoms, they did not lead to significant additional functional limitation. Turning to limitation of extension, the Veteran consistently showed full extension (0 degrees) in his left knee, except at the December 2019 and July 2020 VA examinations, where he showed extension to 50 degrees and 15 degrees, respectively. The Board notes that the RO found that those examinations were not consistent with the evidence of record and ordered a new VA examination; further, the Veteran was found to have given suboptimal effort on examination at the July 2020 VA examination. The Veteran was afforded another VA examination in December 2020, where he showed extension to 0 degrees. The Board acknowledges the findings of the December 2019 and July 2020 VA examinations, but finds that the significant increase in extension limitation were an anomaly and will not grant a separate rating for limitation of extension based on those results. Here, the Board has also considered whether flare-ups would lead to a limitation of extension to 10 degrees; however, as previously explained, the July 2020 VA examiner did not find a rational basis to provide an opinion regarding any additional losses of function of range of motion. As such, the Veteran is not found to meet the criteria for a separate rating for limitation of extension. Turning to knee instability, the Veteran's VA examinations of record have consistently reported that there was no lateral instability of the left knee. The Board does acknowledge the findings of moderate lateral instability of the left knee at the July 2020 VA examination. However, the Board also reiterates that the RO found that the examination was not consistent with the evidence of record and ordered a new VA examination to address the inconsistency. Upon reexamination in December 2020, the Veteran was shown to have normal stability in his left knee. The Board also acknowledges the Veteran's use of a knee brace for his left knee. However, even though the Veteran utilizes a brace, the weight of the evidence is against finding that there is clinical evidence of any left knee instability. Additionally, the VA examiners of record have indicated that the Veteran did not have episodes of dislocation or recurrent subluxation. Further, in considering the recent revisions to Diagnostic Code 5257, there has been no lay or clinical evidence indicating that there has been persistent instability or any diagnosed condition involving the patellofemoral complex with recurrent instability in the left knee. As such, the Veteran has not met the criteria for a separate rating under Diagnostic Code 5257. Turning to the meniscus, the Veteran was shown to have a torn meniscus during the period on an appeal. However, there was no indication that he had his meniscus removed. As such, Diagnostic Code 5259 is not applicable. Although the Veteran was shown to have a torn meniscus, there was no clinical evidence of frequent episodes of locking, pain and effusion into the joint, nor has the Veteran described such symptoms. As such, a separate rating under Diagnostic Code 5258 is not appropriate. It is acknowledged that the Veteran's left knee is painful, but such impairment was considered, and is the basis for, the 10 percent rating that was assigned. Lastly, there has been no clinical or lay evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. As such, separate ratings under Diagnostic Codes 5256, 5262, and 5263 are not applicable. Accordingly, an initial compensable rating for left knee DJD is denied; however, a 10 percent rating, but no higher, from May 10, 2011, forward, is granted. Right Knee Disability The Veteran asserts that he is entitled to higher ratings, than those assigned for his right knee disability. Specifically, he asserts that he has extensive arthritis pain, does not have normal range of motion, and cannot fully extend his right knee. See VA Form 9 dated May 10, 2011. In an April 2009 rating decision, service connection was granted for a right knee disability and an initial noncompensable rating was assigned, effective March 1, 2009. The noncompensable rating was assigned based on full and painless range of motion. In the August 2014 rating decision, a 10 percent disability rating was assigned effective November 14, 2011, the date of a private record showing that an increased rating was warranted. The 10 percent rating was based on painful motion of the knee. 38 C.F.R. § 4.59. A 40 percent rating was assigned, effective July 14, 2014, the date of a VA examination. The 40 percent rating was based on extension being limited to 30 degrees. Finally, a separate 10 percent rating was assigned for slight right knee instability, effective November 14, 2011, the date of a private record showing instability of the right knee. The Veteran underwent a right total knee arthroplasty on May 12, 2016, and he was assigned a temporary total 100 percent rating, effective the date of the surgery. His 100 percent rating was in effect until June 30, 2017, and from July 1, 2017 a 30 percent disability rating is in effect. Here, the Board will determine whether the Veteran is entitled to higher and/or separate ratings than those assigned, for his right knee disability. 3. From March 1, 2009 to July 13, 2014, a 10 percent rating for right knee DJD, but no higher, is granted. The Veteran was afforded a VA examination in February 2009. The examiner noted that there was diffuse right knee pain. On examination, the Veteran showed flexion to 140 degrees and extension to 0 degrees, with no objective evidence of pain noted on examination. There was no instability in the right knee. The Veteran provided a private treatment record dated November 14, 2011. The private physician noted that the Veteran had a history of right ACL reconstruction 11 years ago. On examination, he showed right knee flexion to 120 degrees and extension to 5 degrees. He was noted to have slight instability in the Lachman's testing. VA received the Veteran's VA Form 9 on May 10, 2011, which included statements and assertions of the Veteran. He reported that he had extensive pain in both knees and could not fully extend them. He also stated that his range of motion in his knees were not normal. Here, the Board finds that the Veteran is entitled to an initial 10 percent rating from March 1, 2009 based on the February 2009 VA examination report that noted right diffuse knee pain and his VA treatment records which also noted pain in his right knee. See VA Treatment Record dated January 2, 2009; 38 C.F.R. § 4.59. However, the Board also finds that he is not entitled to an initial rating in excess of 10 percent for a right knee disability based on a limitation of motion because he showed full range of motion for both flexion and extension at the February 2009 VA examination and showed flexion to 120 degrees and extension to 5 degrees at the November 2011 private examination. The Board acknowledges that limitation of extension to 5 degrees is commensurate with a noncompensable rating; however, finds that a rating based on painful motion is more advantageous to the Veteran. The Board has carefully reviewed the Veteran's post-service medical records and although there was evidence of painful motion of the right knee, there is no range of motion testing, other than the November 2011 report, which showed findings consistent with a rating in excess of 10 percent. There was no evidence of ankylosis, lateral instability, impairment of the tibia and fibula, or genu recurvatum of the right knee and the Veteran did not describe or report symptoms of any of the aforementioned conditions. As such, an initial rating in excess of 10 percent for a right knee is not warranted. Accordingly, an initial 10 percent rating, but no higher, for right knee DJD from March 1, 2009 to July 13, 2014, is granted. 4. From July 14, 2014 to May 11, 2016, a rating in excess of 40 percent for right knee DJD is denied. 5. From November 14, 2011 to May 11, 2016, a rating in excess of 10 percent for right knee instability is denied. The Veteran was afforded a VA examination in July 2014. The Veteran reported that he could not straighten his right knee and that his right knee gives out. He reported that he usually has an achy-type pain, rated as 7/10, but during the winter, goes up to 10/10. He reported having flare-ups during the winter, which caused increased pain. On examination, he showed right knee flexion to 80 degrees and extension to 30 degrees. Painful motion was noted to begin at 80 degrees of flexion and 30 degrees of extension. He was able to perform repetitive use testing with no additional loss of range of motion. The examiner declined to provide an estimate of additional loss in terms of range of motion during a flare-up because he was not examined during a flare-up and would otherwise be speculation. Muscle strength testing showed 4/5 strength in the right knee for both flexion and extension. Joint stability testing showed slight anterior, posterior, and medial-lateral instability. The examiner indicated that the Veteran had a right meniscus condition and resulted in frequent joint locking, chronic pain, swelling, and limited motion. There was no indication of tibia and/or fibula impairment or ankylosis. Based on the range of motion testing at the July 2014 VA examination, the RO assigned the Veteran a 40 percent rating, for extension limited to 30 degrees. He also underwent a total knee replacement surgery on May 12, 2016, in which he was assigned a 100 percent rating until June 30, 2017. As such, the Board will adjudicate whether he is entitled to a rating in excess of 40 percent prior to May 12, 2016. The Board has carefully reviewed the Veteran's post-service treatment records but has not uncovered any range of motion testing results. There is also no indication that the Veteran had ankylosis, genu recurvatum, or a tibial or fibular impairment. Nor were there any complaints or discussion about instability or meniscal symptoms. Regarding a limitation of motion, at worst, he showed a limitation of extension to 30 degrees, well in excess of 45 degrees, the criteria for an increased 50 percent rating. He showed flexion to 80 degrees, well in excess of 60 degrees, the criteria for even a compensable rating. As such, the Veteran has not shown the criteria for an increased rating for limitation of extension, or a separate rating for limitation of flexion. Accordingly, a rating in excess of 40 percent for a right knee disability is denied. Regarding the Veteran's instability of the right knee, based on the November 2011 private examination report, the Veteran was granted a 10 percent rating, effective November 14, 2011. Further, the joint stability testing in July 2014 confirmed that the Veteran had slight lateral instability. Here, the Board acknowledges the clinical findings that showed slight instability of the right knee. However, there was no clinical evidence, or lay assertions that the Veteran experienced moderate instability, or worse. The Board also acknowledges that the Veteran appears to have been prescribed a knee brace in November 2010. Here, the Board finds that although the Veteran was prescribed a knee brace in November 2010, the overall symptomatology, in conjunction with the clinical evidence of record shows that the Veteran's right knee lateral instability is best characterized as slight. Accordingly, a rating in excess of 10 percent for right knee lateral instability, from November 14, 2011 to May 11, 2016, is denied. The Board acknowledges the July 2014 VA examiner's notation that the Veteran had a partial meniscectomy in 1989, but still had a meniscus condition, which resulted in chronic pain, frequent episodes of locking, and swelling. While acknowledging Diagnostic Code 5258, the Board finds that such symptomatology associated with the meniscus is contemplated by the 40 percent rating in effect for right knee DJD and the 10 percent rating in effect for instability. Due to his May 12, 2016 total knee replacement, his meniscus problems were resolved. Thus, there is no basis for the assignment of a separate rating per Diagnostic Code 5258. 6. From July 1, 2017, a rating in excess of 30 percent for total right knee replacement is denied. The Veteran underwent a total knee replacement on May 12, 2016 and was assigned a 100 percent rating until June 30, 2017, when he was assigned a 30 percent rating, under Diagnostic Code 5055, the minimum rating following a prosthetic replacement. As such, the Board will adjudicate whether he is entitled to a rating in excess of 30 percent from July 1, 2017. Diagnostic Code 5055 evaluates knee replacement. A 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in an intermediate degrees of residual weakness, pain or limitation of motion, a 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness, and a 100 percent rating may be assigned for one year following implantation of prosthesis. The Veteran was afforded a VA examination in February 2018. He reported pain in both of his knees. He did not report having flare-ups of the knees. On examination, he showed flexion to 100 degrees and extension to 0 degrees, with pain noted on examination, but did not result in functional loss. There was also evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Muscle strength testing showed normal strength of the right knee. There was no evidence of ankylosis. Joint stability testing showed no lateral instability. There was no evidence of tibial and/or fibular impairment in the left knee. There was no evidence of right meniscal problems. The examiner reported that the Veteran wore knee braces regularly. The Veteran was afforded a VA examination in December 2019. The Veteran reported bilateral knee pain, rated as 10/10 constant aching pain. He reported that he used knee braces on both knees. He did not report flare-ups in the knees. On examination, he showed flexion to 100 degrees and extension to 50 degrees. There was pain noted on rest/nonmovement. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Muscle strength testing showed 4/5 strength in both right knee flexion and extension. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed no lateral instability. There was evidence of shin splints, but otherwise no evidence of tibial and/or fibular impairment in the left knee. The examiner reported that the residuals of the Veteran's total right knee replacement was, chronic residuals consisting of severe painful motion or weakness. Corriea testing showed no objective evidence of pain on passive range of motion testing, weight-bearing, or in non-weight-bearing. The Veteran was afforded a VA examination in July 2020. The Veteran reported left knee pain, rated at 10/10. The Veteran reported having flare-ups of the knees and described a decreased range of motion and swelling; and occurred daily when walking on hard floors. On examination, he showed flexion to 90 degrees and extension to 20 degrees. There was pain noted on examination, and pain with weight-bearing. The examiner reported that the Veteran's range of motion was abnormal, but also noted that the Veteran had suboptimal effort during testing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. Muscle strength testing showed 4/5 strength in both right knee flexion and extension. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed slight posterior instability and moderate medial and lateral instability. The examiner indicated that he had slight lateral instability of the right knee. There was no notation of any meniscal problems. The examiner noted that the Veteran used knee braces. The examiner reported that the residuals of the Veteran's total right knee replacement was intermediate degrees of residual weakness, pain, or limitation of motion. Corriea testing showed objective evidence of pain on passive range of motion and in non-weight-bearing. The Veteran was afforded a VA examination in December 2020. The Veteran reported that he had worsening bilateral knee pain in the last few months. He described pain, stiffness, and occasional swelling in his knees. He reported that he did not have flare-ups of the knees. On examination, he showed flexion to 95 degrees and extension to 0 degrees, pain noted on examination, but did not result in functional loss. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing, with no additional loss in terms of range of motion. The examiner reported that there were additional factors that contributed to the disability; that he walked with a limp, had difficulty standing after sitting for a while, and pain while standing. Muscle strength testing showed normal strength in the right knee. There was no evidence of ankylosis or genu recurvatum. Joint stability testing showed normal stability in all areas of the left knee. The examiner noted that the Veteran used knee braces on a regular basis. The examiner reported that the residuals of the Veteran's total right knee replacement was, intermediate degrees of residual weakness, pain, or limitation of motion. Corriea testing showed objective evidence of pain on passive range of motion and in non-weight-bearing. Here, the evidence of record does not establish that the Veteran's right knee disability warrants a rating in excess of 30 percent, under Diagnostic Code 5055. The medical evidence does not demonstrate severe painful motion or weakness. The Board acknowledges that the December 2019 VA examiner noted that the residuals of the Veteran's total right knee replacement was, chronic residuals consisting of severe painful motion or weakness. However, the RO found that there was an inconstancy between the findings of the December 2019 and July 2020 VA examiners. The December 2019 VA examiner found chronic residuals consisting of severe painful motion or weakness and the July 2020 VA examiner found that there was intermediate degrees of residual weakness, pain, or limitation of motion. The RO found that a new VA examination was necessary to clarify the inconsistent findings. The December 2020 VA examiner resolved the inconsistency and found that there was intermediate degrees of residual weakness, pain, or limitation of motion. The Board acknowledges the Veteran's consistent reports of right knee pain but also notes that he showed above average strength in his right knee at the December 2019 and July 2020 VA examinations and was shown to have 5/5 strength at the December 2020 VA examination. Regarding range of motion, the Board finds that the criteria for a rating in excess of 30 percent has not been met. During this period on appeal, at worst, he showed flexion to 90 degrees, which is well in excess of 60 degrees, the criteria for even a noncompensable rating. The Board acknowledges that he showed extension to 50 degrees and 20 degrees at the December 2019 and July 2020 VA examinations, but as previously discussed, the RO found that there were incontinences with the evidence of record. Upon reexamination in December 2020, he was found to have full extension, to 0 degrees. Here, the Board finds that the most probative VA examination of record, during this period on appeal is the December 2020 VA examination because it is consistent with the evidence of record. As such, the Board finds that the Veteran has not met the criteria for an increased rating based on a limitation of motion. There has been no evidence of ankylosis, lateral instability, impairment of the tibia and fibula, or genu recurvatum of the right knee and the Veteran did not describe or report symptoms of any of the aforementioned conditions. As such, a rating in excess of 30 percent, from July 1, 2017, forward, is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and 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. 38 C.F.R. § 4.59. Here, while the Veteran has been consistently shown to have pain on examination, he was still able to consistently complete repetitive use testing, with no additional loss of range of motion. Furthermore, the evidence simply does not support that the Veteran's right knee disability has resulted in findings consistent with a higher rating. Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca. While the Veteran has been shown to experience knee pain, the Court has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). 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. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained flexion and extension, well in excess of the ratings assigned. As such, there is no basis for increased ratings under Diagnostic Codes 5260 or 5261. Accordingly, a rating in excess of 30 percent for residuals of the right knee replacement is denied. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.