Citation Nr: 22014087 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-43 026 DATE: March 11, 2022 ORDER For the entirety of the appeal period, entitlement to a 30 percent rating, but no higher, for right knee instability is granted. Prior to December 7, 2013, entitlement to a rating in excess of 10 percent (excluding a period of convalescence) for limitation of flexion of the right knee is denied. Beginning December 7, 2013, entitlement to a rating of 20 percent, but no higher, for limitation of flexion of the right knee is granted. A separate rating of 10 percent for limitation of extension for the right knee, beginning November 26, 2019, is granted. REMANDED Entitlement to service connection for a bilateral foot disorder (other than bilateral calcaneal spurs) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee was shown to have symptomatology more closely approximating severe instability manifested by lateral instability, giving way on a frequent basis, and requiring the use of a cane and brace. 2. Prior to December 7, 2013, the Veteran's right knee flexion was painful but limited to no worse than 90 degrees, no tibia or fibula impairment, ankylosis or its equivalent during flare-ups, recurrent effusion, genu recurvatum or additional functional loss were present. 3. Beginning December 7, 2013, the Veteran's right knee flexion was limited to 30 degrees due to pain, no tibia or fibula impairment, ankylosis or its equivalent during flare-ups, genu recurvatum or additional functional loss were present. 4. The Veteran's right knee disability is manifested by limitation of extension to 10 degrees beginning November 26, 2019; prior to this date, the Veteran exhibited extension without limitation. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. Prior to December 7, 2013, the criteria for a rating in excess of 10 percent for limitation of right knee flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. Beginning December 7, 2013, the criteria for a rating of 20 percent, but no higher, for limitation of right knee flexion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. Beginning November 26, 2019, but no earlier, the criteria for a rating of 10 percent for limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from April 1972 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded the matter for further development. Specifically, the Board directed the RO to obtain a VA addendum opinion to ascertain the etiology of the Veteran's bilateral foot disability and to schedule the Veteran for a VA examination to ascertain the current severity of the Veteran's service-connected right knee disability pursuant to the decision in Sharp v. Shulkin, 29. Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. In connection with the Veteran's service connection claim for a bilateral foot disorder, medical opinions were associated with the claims file in November 2019 and December 2019. The Board, however, finds that further development is necessary to properly adjudicate the matter. Thus, the Board must remand the matter. In connection with the Veteran's increased rating claim for his service-connected right knee, the Veteran underwent a VA examination in November 2019. The Board finds that the VA examination is adequate. Thus, the Board finds that there has been substantial compliance with the Board's April 2018 Remand directives, and further remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right knee instability is rated as 20 percent disabling from May 1, 2008 under Diagnostic Code 5257. His service-connected right knee DJD s/p arthroscopy associated with s/p right knee arthroscopy with internal derangement of the right knee is rated 10 percent from May 1, 2008; 100 percent from December 10, 2012 (which the Board will not consider an increased rating for); and 10 percent from February 1, 2013. Here, the Veteran is compensated for instability of the knee (Diagnostic Code 5257) and limitation of flexion (Diagnostic Code 5260). The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Codes 5257 and 5262, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code 5003, degenerative 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 diagnostic code 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 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent disability rating is warranted with x- ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, there is no evidence of x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disabilities of the knees are evaluated pursuant to the criteria within 38 C.F.R. § 4.71a, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Diagnostic Code 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under the former rating criteria for Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability of a knee, a 10 percent rating is assigned for slight impairment; a 20 percent rating for moderate impairment; and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The terms "mild," "moderate," and "severe" are not defined in the Schedule. However, "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). Here, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 The revised criteria for Diagnostic Code 5257, effective February 7, 2021, evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. Regarding recurrent subluxation or 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for 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 (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for 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. Regarding patellar instability, under the revised criteria for Diagnostic Code 5257, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent disability rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). Note (2) provides that 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). See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Diagnostic Code 5258 provides for a 20 percent rating when semilunar cartilage is dislocated with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for a 10 percent rating when semilunar cartilage has been removed but remains symptomatic. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, which evaluates limitation of flexion, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, which evaluates limitation of extension, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Under the former rating criteria for Diagnostic Code 5262, which evaluates impairment of the tibia and fibula, a 10 percent rating is assigned for slight knee or ankle disability, a 20 percent rating for moderate knee or ankle disability, a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating for nonunion with loose motion, requiring a brace. 38 C.F.R. § 4.71a The revised criteria for Diagnostic Code 5262, effective February 7, 2021, evaluates impairment of the tibia and fibula. A noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing, is rated at 10 percent. 38 C.F.R. § 4.71a. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board notes that a review of the record reveals that, while the most recent November 2019 VA examination satisfies the requirements of both Correia and Sharp, the prior VA examinations of record do not. However, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to November 2019, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. 1. Entitlement to a rating in excess of 20 percent for a right knee disability In this case, the Veteran's increased rating claim for his right knee disability was received on March 11, 2008. From February 8, 2008 to May 1, 2008, the Veteran was in receipt of a total rating for his right knee condition. As no higher rating is available for this period, a higher rating prior to May 1, 2008 is not at issue. Similarly, for the period from December 10, 2012 to February 1, 2013, the Veteran was awarded a total rating for his right knee due to convalescence, thus a higher rating is not available for this period. For the period from May 1, 2008, to December 9, 2012, and from February 1, 2013, the Veteran's right knee arthritis has been evaluated at 10 percent under Diagnostic Code 5260-5010 for painful motion that does not meet the criteria for compensable limitation of motion. The Veteran has additionally been awarded a separate 20 percent evaluation for instability of the right knee for the period beginning May 1, 2008, under Diagnostic Code 5257. Evidence of Record The Veteran was afforded a VA examination for his knees in October 2008. The Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, and locking. He also stated that he has constant pain in the right knee which traveled to the hip. The pain was elicited by physical activity, and relieved by rest, Motrin, and Vicodin. The examiner noted that there was tenderness and guarding of movement, but there were no objective signs of edema, effusion, weakness, redness, heat, or subluxation. The VA examiner confirmed a diagnosis of right knee degenerative joint disease associated with residuals of internal derangement of the right knee. On examination, range of motion testing revealed right knee flexion to 90 degrees with objective evidence of painful motion beginning at 90 degrees, right knee extension to 0 degrees with no objective evidence of painful motion, and left knee flexion and extension without limitation. On the right, the joint function was additionally limited by the following after repetitive use: pain, lack of endurance with and pain causing the major functional impact. The joint function on the right was not additionally limited by the following after repetitive use: fatigue, weakness, and incoordination. There was no additional limitation in degree. On the left, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The anterior and posterior cruciate ligaments stability test of the right knee was abnormal with moderate instability. The medial and lateral collateral ligaments stability test of the right knee is abnormal with moderate instability. The medial and lateral meniscus test of the right knee is abnormal with moderate degree of severity. The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral meniscus test of the left knee is within normal limits. The examiner also noted that the effect of the condition on the Veteran's usual occupation and daily activity was moderate. The Veteran was afforded a VA examination for his knees in December 2013. The Veteran reported that he underwent two right knee surgeries and one left knee surgery. He stated that his last surgery was in December 2012, and that he had no relief since his surgery, noting further that both knees had gotten worse and that he walked with a brace. He reported flare-ups of the knee, noting that his knees swell up with fluid and that he hears popping sounds coming from both knees four to five times a week. The Veteran also reported that it hurts to walk, and that he must take Motrin 800 mg to help with swelling. He also stated that he can only bend his knees 14 of capacity and he can only walk short distances. He further reported that he uses a mobile device for assistance. The VA examiner confirmed diagnoses of a bilateral knee meniscal tear status post, bilateral knee joint osteoarthritis, right knee degenerative joint disease, status post right knee arthroscopy with internal derangement, and left knee degenerative joint disease status post left knee surgery. On examination, range of motion testing revealed right knee flexion from 50 to 140 degrees, right knee extension to 0 degrees, left knee flexion from 25 to 140 degrees, and left knee extension without limitation. The examiner noted that the Veteran's abnormal range of motion contributed to functional loss. Range of motion testing after repetitive use revealed right knee flexion to 40 degrees, right knee extension to 0 degrees, left knee flexion to 20 degrees, and left knee extension without limitation. The examiner noted that the ROM movements were painful on active, passive, and/or repetitive use testing, bilaterally that contributed to functional loss or additional limitation of ROM. The examiner also noted that there was pain when the joint was used in weight-bearing or non weight-bearing, bilaterally and that pain contributed to functional loss or additional limitation of ROM. The Veteran had localized tenderness or pain to palpation of the joints or soft tissue, bilaterally in the anterior knees and patellas. Contributing factors of disability included less movement than normal, bilaterally; incoordination, impaired ability to execute skilled movements smoothly, bilaterally; and pain on movement, bilaterally. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time, bilaterally. Range of motion due to pain and/or functional loss during flare-ups or when the joint was used repeatedly over a period of time was noted to be 30-40 degrees of right knee flexion, 0 degrees of right knee extension, 30-40 degrees of left knee flexion, and 0 degrees of left knee extension. Muscle strength testing, bilaterally, was noted to be 4/5 (active movement against some resistance), and there was not a reduction in muscle strength. The Veteran did not have muscle atrophy or ankylosis. There was no history of recurrent subluxation, bilaterally. There was moderate lateral instability, bilaterally. There was also a history of recurrent effusion. Joint stability was tested, but there was no finding of joint instability of either knee. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment. The Veteran was noted to have a meniscus condition, bilaterally, and his symptoms included that of a meniscal tear; frequent episodes of joint locking; frequent episodes of joint pain; and frequent episodes of joint effusion. The Veteran underwent arthroscopic surgeries, bilaterally, to include right knee surgeries in 2008 and 2012 and left knee surgery in 2012. The Veteran used a brace on a regular basis and a cane on a constant basis. Functional impact of each condition included difficulty with prolonged standing, walking, bending, and lifting. In January 2015 and November 2015 statements, the Veteran stated that his right knee was unstable and would give out on him, requiring him to use a prosthetic device to maintain his balance. In a May 2015 letter, the Veteran stated that his knees swell and pop. He also stated that on many occasions, his right knee has given out on him and requires him to use a prosthetic device to maintain his balance. The Veteran underwent a Knee and Lower Leg Conditions DBQ in August 2015. The Veteran reported flare-ups of the right knee and lower leg, characterized by chronic constant pain. He also stated that with pain, the knee swells up and down to the ankle and foot. He also noted that it is unstable and buckles about three times a day. He stated that he is unable to sleep well during the night due to the pain, and he cannot walk without a cane and braces. As to functional impairment, the Veteran stated that he must use a cane to stand and walk, and the knees become non-functional during a flare-up and his ankles and feet swell up. The examiner noted a diagnosis of right knee joint osteoarthritis status-post arthroscopic surgery. On examination, range of motion testing revealed right knee flexion to 70 degrees, right knee extension to 0 degrees, left knee flexion to 90 degrees, and left knee extension without limitation. Range of motion itself contributed to functional loss, to include pain with guarding and limited range of motion. There was evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and objective evidence of crepitus of both knees. The Veteran was able to perform repetitive use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions, bilaterally. The Veteran was being examined immediately after repetitive use over time. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. Range of motion testing with repeated use resulted in right knee flexion from 0 to 70 degrees; right knee extension from 70 to 0 degrees; left knee flexion from 0 to 90 degrees; and left knee extension from 90 to 0 degrees. The examination was being conducted during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. Range of motion testing resulted in right knee flexion from 0 to 70 degrees, right knee extension from 70 to 0 degrees, left knee flexion from 0 to 90 degrees, and left knee extension from 90 to 0 degrees. Additional factors contributing to disability of both knees included less movement than normal; weakened movement; swelling; disturbance of locomotion; interference with sitting; and interference with standing. There was additionally instability of station of the right knee. Muscle strength testing of the right knee was rated 4/5 (active movement against some resistance) in flexion and extension. There was normal strength of the left knee. The Veteran did not have muscle atrophy and ankylosis of either knee joint. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint instability testing was indicated, but the Veteran was not able to perform due to severe pain. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran did not have any meniscus condition. The Veteran underwent arthroscopic surgeries of the right knee in 1987, 1999, and 2012. Residual signs or symptoms due to meniscectomy included chronic pain and instability. The Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions. The Veteran used an assistive device, to include a brace and cane on a regular basis. Imaging studies of the knee been performed, and which revealed degenerative or traumatic arthritis of the right knee. There were no other significant diagnostic test findings or results. The examiner noted that the Veteran's condition impacted his ability to perform any type of occupational task, to include that prolonged sitting aggravates his knees. In a November 2015 VA Form 9, the Veteran reported that his right knee was unstable and that he required a cane to ambulate. He also stated that his right knee gives out five to seven times per week. The Veteran was afforded a Knee and Lower Leg Conditions DBQ in April 2016. At the time of the examination, the Veteran reported flare-ups of the knee and/or lower leg. Specifically, the Veteran stated that the flare-ups of his right knee could be manifested with knee pain, swelling, and decreased range of motion. The Veteran did not, however, report having any functional loss or functional impairment of the joint or extremity. The examiner noted a diagnosis of left knee degenerative joint disease, status post arthroscopy associated with status post right knee arthroscopy with internal derangement of the right knee. On examination, range of motion testing revealed right and left knee flexion from 0 to 140 degrees and right and left knee extension from 140 to 0 degrees. The examiner stated that there was no objective evidence of crepitus or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, bilaterally. The examiner noted that the Veteran was able to perform repetitive-use testing of the right knee with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. No range of motion was described. The examination was not being conducted during a flare up. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There were no additional factors contributing to disability. Muscle strength testing of both knees was normal. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, bilaterally. Joint stability testing was performed and there was no evidence of joint instability, to include anterior instability, posterior instability, medial instability, and lateral instability. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran was noted to have had a meniscus condition, described as a meniscal tear of both sides and status post bilateral knee arthroscopic surgery. The Veteran underwent arthroscopic surgery of the right knee in 2013 and arthroscopic surgery in 2005. The Veteran did not have any other physical findings, complications, conditions, signs, or symptoms related to any conditions. The Veteran used a brace and cane on a constant basis to ambulate. Imaging studies of the knee were performed, and they revealed degenerative or traumatic arthritis, bilaterally. Other significant diagnostic test findings or results revealed early bilateral knee osteoarthritis. The examiner noted that the Veteran's knee disabilities did not cause functional impact. In the remarks section of the report, the examiner noted that the Veteran was uncooperative and provided submaximal effort with exaggerated pain response on physical examination of both knees. An observation revealed that the Veteran walked with a normal gait and was able to sit and stand without discomfort. Here, the Board notes that although the Veteran reported that he had flare-ups of his right knee which he described as knee pain, swelling, and decreased range of motion, the VA examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The Veteran underwent a Knee and Lower Leg Conditions DBQ in November 2019. At the time of the examination, the Veteran reported that he experienced severe flare-ups of the right knee that occurred five to seven days a week and lasted up to four weeks at a time. The right knee flare-ups were precipitated with walking with no support and alleviated by Motrin at night. Flare-ups of the left knee were described as severe and occurred five to seven times a week. The Veteran reported that the left knee flare-ups lasted four weeks. They were precipitated by walking without support, and they were alleviated by Motrin. The Veteran reported having functional loss or functional impairment, to include that he was precluded from exercising and playing sports. The examiner noted a diagnosis of bilateral knee joint osteoarthritis. On examination, range of motion testing of the right knee revealed flexion from 10 to 75 degrees and extension from 75 to 10 degrees, but range of motion did not contribute to functional loss. Range of motion testing of the left knee revealed flexion from 0 to 90 degrees and extension from 90 to 0 degrees, but range of motion did not contribute to functional loss. The Veteran experienced pain on flexion and extension, bilaterally and there was evidence of pain with weight bearing bilaterally. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, bilaterally. There was not objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. Range of motion after repetitive use over time resulted in right knee flexion from 10 to 50 degrees, right knee extension from 50 to 10 degrees, left knee flexion from 0 to 75 degrees, and left knee extension from 75 to 0 degrees. The examination was not being conducted during a flare-up, but pain and lack of endurance significantly limited functional ability with flare-ups, bilaterally. Range of motion testing resulted in right knee flexion from 10 to 30 degrees, right knee extension from 30 to 10 degrees, left knee flexion from 0 to 70 degrees, and left knee extension from 70 to 0 degrees. There were no additional factors contributing to disability. Muscle strength testing, bilaterally, was rated 4/5 (active movement against some resistance), and there was reduction in muscle strength. The Veteran did not have muscle atrophy or ankylosis of either knee. The Veteran did not have recurrent subluxation or lateral instability. The Veteran had a history of recurrent effusion described as recurrent bilateral knee swelling with pain. Joint stability testing was performed, revealing normal posterior instability of the right knee. However, joint stability testing of the right knee revealed 2+ (5-10 millimeters) of anterior instability and 1+ (0-5 millimeters) of medial instability and lateral instability. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran did not have a meniscus condition. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to any condition. The Veteran used a cane on a regular basis and a walker on an occasional basis as a normal mode of locomotion. Imaging studies revealed bilateral degenerative traumatic arthritis. There were no other significant diagnostic test findings or results. As to functional impact, the examiner noted that the Veteran is unable to stand, walk for any length of time, and he is unable to go up and down a flight of stairs. Analysis - Instability As noted above, the Veteran's status post right knee arthroscopy with internal derangement of the right knee has been awarded a separate rating of 20 percent under Diagnostic Code 5257 for the appeal period. Here, the Board finds that from May 1, 2008, the evidence of record reflects severe instability of the right knee. In this regard, the Veteran reported in October 2008 that his right knee gave way. There was moderate lateral instability noted in the October 2008 and December 2013 DBQs. Additionally, in January 2015 and May 2015 statements, the Veteran stated that his right knee was unstable, would give out on him, and that he required an assistive device for ambulation. The Veteran additionally reported instability of the right knee in the August 2015 DBQ, and it was noted that he required a cane and braces to ambulate. In November 2015, the Veteran stated that his right knee was unstable, that he required a cane to ambulate, and that his right knee would give way five to seven times a week. The November 2019 examiner noted right knee anterior instability of 5 to 10 millimeters and medial and anterior instability of 0 to 5 millimeters. Here, the Veteran was noted to use a cane on a regular basis and a walker on an occasional basis. The Board also recognizes that there were no objective findings on DBQs dated August 2015 and April 2016. Yet, the Board notes that medical evidence is not categorically more probative than lay evidence under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Here, the Board finds that the Veteran is competent and credible to describe instability of his right knee, to include the frequency and severity of such symptoms. Further, the Board finds that since May 2008, the Veteran's right knee instability is best contemplated by a 30 percent rating for severe impairment as he requires a cane and brace for locomotion. Additionally, the Board finds that the Veteran's instability is "of a great degree" as defined by the Merriam-Webster Dictionary. As such, the Board finds that a 30 percent disability rating from May 1, 2008 is warranted. The Board notes that both the former and revised criteria under Diagnostic Code 5257 allows for a maximum evaluation of 30 percent. Therefore, application of the amended rating criteria under Diagnostic Code 5257 from February 7, 2021 would not result in a higher disability rating. Analysis - Right Knee Arthritis With regard to the Veteran's right knee degenerative joint disease, based on limitation of flexion under Diagnostic Code 5260, the Board finds that a disability rating greater than 10 percent for the period prior to December 7, 2013, is not warranted, and a higher rating of 20 percent as of this date is warranted, for limitation of flexion. Additionally, a separate 10 percent rating for limitation of extension is warranted from November 26, 2019, under Diagnostic Code 5261. The Board notes that at no time during the appeal period is there evidence of tibia or fibula impairment, genu recurvatum, ankylosis or the functional equivalent of ankylosis during flare-ups. Accordingly, higher evaluations under Diagnostic Codes 5256, 5262, and 5263 are not warranted under either the pre February 2021 regulations of the amended regulations. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, and 5263. Under Diagnostic Code 5260, prior to December 7, 2013, the October 2008 VA examination noted right knee flexion to 90 degrees, with objective evidence of pain at 90 degrees. After repeated use with three repetitions, flexion of right knee remained the same. No other evidence of record demonstrates flexion limited to less than 90 degrees even with consideration of functional loss due to pain and after repetitive use. Thus, the assigned 10 percent rating for this period is appropriate. At the December 7, 2013, VA examination, the examiner noted right knee flexion to 140 degrees. However, after repeated use with three repetitions, flexion of the right knee reached only 40 degrees and, notably, after flare-ups, range of motion was noted to be "30-40 degrees." The August 2015 VA examination noted right knee flexion to 70 degrees, with no additional loss of range of motion following repetitive use with three repetitions or during flare-ups. The April 2016 VA examination noted right knee flexion to 140 degrees, with no additional loss of range of motion following repetitive use with three repetitions or during flare-ups. The November 2019 VA examination noted right knee flexion to 75 degrees. After repeated use with three repetitions, flexion of the knee was limited to 50 degrees and with flare-ups, flexion of the knee was limited to 30 degrees. While the Board notes that the August 2015 and April 2016 examinations did not note limitation of flexion to 30 degrees during flare-ups and after repetitive use, however, these examinations while adequate for reporting range of motion at the examination, are not adequate for reporting functional loss as they did not explain the basis for their findings or lack thereof. Accordingly, the Board finds that the December 2013 and November 2019 examinations are the most probative evidence regarding the Veteran's limitation of motion of the right knee due to pain caused by functional loss during flare-ups. As a result, beginning December 7, 2013, a 20 percent rating is warranted based on limitation of flexion due to pain during flare-ups. With regard to the Veteran's right knee limitation of extension, based on the evidence of record, the Board finds that a separate disability rating of 10 percent is warranted beginning November 26, 2019 under Diagnostic Code 5261. Specifically, the November 2019 VA examination noted right knee extension to 10 degrees. Prior to this date, however, there was no evidence of compensable limitation of extension on examination. See October 2008, December 2013, August 2015, April 2016 DBQs. Nor was there any evidence of functional loss during flare-ups or upon repetitive use causing additional compensable limitation of extension. Accordingly, the Board finds that the Veteran's right knee limitation of extension is best contemplated by a 10 percent disability rating beginning November 2019. With regard to Diagnostic Codes 5258 and 5259, governing symptomatic meniscal conditions and compensation for episodes of frequent locking, recurrent effusion and pain, the Board finds that additional compensation under these provisions is not warranted. The Veteran's pain was compensated in the 10 percent assigned under Diagnostic Code 5260-5010. Thus, the criteria for a separate 10 percent rating under Diagnostic Code 5259 is not available as it would constitute prohibited pyramiding by compensating the same symptom twice. As for Diagnostic Code 5258, prior to December 7, 2013, there was no indication of recurrent effusion of the joint, and as noted the Veteran's pain was already compensated, thus, a rating under this provision for this period is not warranted. For the period after December 7, 2013, the Veteran was in receipt of a 20 percent rating under Diagnostic Code 5260 for painful motion, and there were no reports of locking. Further, the reports of effusion were inconsistent, showing up in the 2013 examination but not the others, except as a history of effusion in the 2019 examination report. Accordingly, the Board finds that a rating under Diagnostic Code 5258 is not warranted at any time during the appeal period as the Veteran has not demonstrated the presence of frequent episodes of locking and recurrent effusion at any time during the appeal period as required by this provision, and his pain has been compensated throughout the appeal period by his ratings under Diagnostic Code 5260, so separately rating his pain again is prohibited. 38 C.F.R. § 4.14. With regard to functional loss, the Board finds that the assigned ratings for limitation of flexion, instability and limitation of extension adequately compensate the Veteran for his functional loss of the right knee. His pain, giving way and limitations during flare-ups is contemplated specifically in his assigned rating for limitation of flexion, extension and instability. The Board finds no additional compensation is warranted under 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board acknowledges the Veteran's December 2013 statement asserting that he could only bend his knee 14 of capacity. However, as this statement was made at the time of a contemporaneous examination, the Board finds that this claimed limitation did not amount to right knee flexion limited to 15 degrees or right knee extension limited to 15 degrees. Further, the Board finds that the objective medical findings by skilled professionals are more persuasive, as their findings reflect that range-of-motion testing incorporated the Veteran's reports of limitation of motion and pain. And, as indicated above, the VA examinations of record do not support higher disability ratings for the Veteran's service-connected right knee disabilities. In sum, the Board finds that a 30 percent disability rating for the Veteran's right knee instability is warranted for the entirety of the appeal period. The Board also finds that a disability rating of 20 percent for right knee DJD status post arthroscopy based on limitation of flexion, beginning December 7, 2013 is warranted. Prior to this date, however, a 10 percent rating is warranted. Lastly, the Board finds that a separate 10 percent disability rating for right knee DJD status post arthroscopy based on limitation of extension, beginning November 26, 2019 is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder (other than bilateral calcaneal spurs) is remanded The Veteran contends that service connection is warranted for a left and right foot disorder (claimed as bilateral foot disorder and pes planus). See November 2015 Application for Disability Compensation and Related Compensation Benefits. While the Veteran was service connected for bilateral calcaneal spurs in March 2019, the evidence of record shows that the Veteran has been diagnosed with a number of bilateral foot disorders, to include bilateral pes planus; bilateral plantar fasciitis; and osteoarthritis of the first metatarsophalangeal joint, bilaterally. See December 2013 DBQ, June 2021 DBQ. To afford the Veteran the broadest possible scope for his claim, the issues have been recharacterized accordingly to that of entitlement to service connection for a bilateral foot disability other than bilateral calcaneal spurs. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Specific to the claim for bilateral pes planus, the Veteran contends that this disorder is related to service or, alternatively, secondary to his service-connected back and knee disorders. The Board notes that a June 2016 VA clinician noted a diagnosis of congenital pes planus, unspecified foot. Several VA opinions were then associated with the claims file, to include one dated December 2019 in which the examiner concluded that the "claimed pes planus (documented as congenital), which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the Veteran's service-connected knee conditions." The Board finds that further development is necessary as the June 2016 VA clinician did not specify what foot was deemed to be congenital and further VA examiners relied upon such documentation. Further, no examiner of record has clarified whether the Veteran's pes planus is a congenital defect or disease, which may have a significant impact on his service connection claim. Therefore, a new medical examination and opinion is necessary to evaluate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specific to the other diagnosed foot disorders, including bilateral plantar fasciitis and bilateral osteoarthritis of the first metatarsophalangeal joint, the Board notes that no etiology opinion has been provided. As such, the Board must remand the matter to determine the nature and etiology of his foot disorders. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of any foot disorder (other than service-connected bilateral calcaneal spurs) that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Pes Planus (a) Indicate whether the Veteran has pes planus in the left and/or right foot. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. (b) For any identified pes planus, the examiner should explain whether it is a congenital defect, a congenital disease, or a disorder not of congenital/developmental origin. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (c) If the pes planus that is determined to be a congenital defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (d) If the pes planus is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran's entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service. (e) If the pes planus is not congenital and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during active service or is otherwise related to active service. (f) If the pes planus is not congenital and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is proximately due to or aggravated beyond its normal progression by his service-connected back and/or knee disabilities. Other Foot Disorders (a) Then, indicate whether the Veteran has any other diagnosis affecting the left and/or right foot, to include bilateral plantar fasciitis and/or bilateral osteoarthritis of the first metatarsophalangeal joint. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. (b) For any identified foot disorder (other than service-connected bilateral calcaneal spurs/bilateral pes planus), the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during active service or is otherwise related to active service. 2. Readjudicate the matter. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.