Citation Nr: 22014347 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 10-32 012A DATE: March 12, 2022 ORDER Prior to January 10, 2017, a 10 percent rating, but no higher, is granted for limitation of flexion of the right knee. From January 10, 2017, entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee is denied. From June 4, 2021, a rating in excess of 10 percent for right knee patellar subluxation is denied. Entitlement to a rating in excess of 10 percent for limitation of flexion for left knee sprain with shin splints is denied. From July 26, 2013, a rating in excess of 10 percent for limitation of extension of the left knee from July 26, 2013 is denied. From June 4, 2021, a rating in excess of 10 percent for left knee patellar subluxation is denied. FINDINGS OF FACT 1. During the appeal period, the evidence persuasively supports a finding that the Veteran's right knee disability with shin splints was manifested by painful motion of the knee and shin splints with slight muscle disability, flexion limited to 70 degrees and extension to 0 degrees, without lateral instability of the knee or subluxation prior to June 4, 2021, and without 12 month of consecutive treatment for right shin splints. 2. During the appeal period, the evidence persuasively supports that the Veteran's left knee disability was manifested by painful motion of the knee and shin splints with slight muscle disability, flexion limited to 85 degrees and extension to 0 degrees prior to July 26, 2013, without lateral instability of the knee or recurrent subluxation prior to June 4, 2021, and without 12 months of consecutive treatment for left shin splints. 3. During the appeal period from July 26, 2013, the evidence persuasively supports that the Veteran had extension of the left knee limited to 5 degrees, at worst. 4. From June 4, 2021, the evidence persuasively supports that the Veteran had subluxation of the right and left knees with 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., canes, crutches, walker) or bracing for ambulation. He did not have unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutches, walker) or bracing for ambulation. CONCLUSIONS OF LAW 1. Prior to January 10, 2017, the criteria for a 10 percent rating, but no higher, are met for limitation of flexion of the right knee. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 2. From January 10, 2017, the criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 3. From June 4, 2021, the criteria for a rating in excess of 10 percent for patellar subluxation of the right knee have not been met. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DC 5257. 4. The criteria for a rating in excess of 10 percent for left knee strain limitation of flexion with shin splints have not been met. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 5. From July 26, 2013, a rating in excess of 10 percent for limitation of extension of the left knee have not been met. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 6. From June 4, 2021, the criteria for a rating in excess of 10 percent for patellar subluxation of the left knee have not been met. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2000 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the VA Regional Office (RO). In January 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. The Board remanded this matter for additional development in March 2015, September 2016, and October 2017. A March 2019 Board decision denied a rating in excess of 10 percent for left knee sprain with shin splints. The March 2019 Board decision granted a separate 10 percent rating for limitation of extension of the left knee from July 26, 2013. The decision denied a compensable rating for right knee strain prior to January 10, 2017 and a rating in excess of 10 percent for right knee strain from January 10, 2017. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Remand, which vacated the portion of the Board decision that denied a rating in excess of 10 percent for limited flexion of the left knee with shin splints and denied an initial compensable rating for right knee strain prior to January 10, 2017 and in excess of 10 percent from January 10, 2017. Those matters were remanded for readjudication. The portion of the Board decision that granted a separate 10 percent rating for limitation of extension of the left knee was not disturbed. These claims were subsequently remanded for additional development in April 2020, March 2021, and October 2021. A December 2021 letter advised the Veteran that the VLJ who conducted the hearing was retired and advised him of his right to another hearing. The Veteran did not respond within 30 days of the letter. Accordingly, the Board assumes that the Veteran does not wish to have another hearing, and the Board will proceed to decide the claim. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102 , 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's knees have been evaluated on multiple occasions during the appeal period; however, prior to April 2021, none of the examination reports were fully compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017). These claims were remanded in April 2020 to satisfy the duty to assist by providing an adequate examination of the knees. The April 2021 VA examination satisfies the requirements of Sharp. The Board finds the April 2021 examination is adequate to determine the nature, extent, and severity of the Veteran's left and right knee disabilities. The April 2021 examination contained tests for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The examiner also considered functional loss due to pain, weakness, excess fatigability, and incoordination along with reported flare-ups or lack thereof. The Board finds that the Veteran is not prejudiced by any inadequacy in determining functional impairment from the VA examinations prior to April 2021. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). The demonstrated joint motion of the knees is much greater than the contemplated motion loss by the next higher rating criteria. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 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 [or 4.73] criteria."). More information as to the functional impairment during the period prior to April 2021 would not overcome the large gap from the specified motion loss to more nearly approximate the next higher ratings for limitation of motion. For these reasons, a request for additional information would not assist in the substantiation of the right or left knee claims. Under these circumstances, another remand for a retrospective opinion would serve no useful purpose. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 . Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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. Painful motion is entitled to at least the minimum compensable rating. See Burton v. Shinseki, 25 Vet. App. 1 (2011). This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The United States Court of Appeals for Veterans' Claims also has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance." Id., quoting 38 C.F.R. § 4.40. In Sharp, supra., the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Court has held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). DC 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 38 C.F.R. § 4.71a; DC 5260. DC 5261, limitation of extension of a leg, provides a noncompensable disability rating when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Id. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71; Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. See VAOPGCPREC 9-2004. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a Veteran who has instability of the knee may be rated separately under DC 5257, provided that a separate rating must be based upon additional disability. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may be rated separately under DC's 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that, if a veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. The terms slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55 (b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. Muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56 (d). The muscles of the calf form a part of Group XI and are rated under DC 5311. Under DC 5311, a slight disability is rated as noncompensable, moderate disability is rated as 10 percent, moderately severe disability is rated as 20 percent, and a severe disability is rated as 30 percent. The rating criteria for knee disabilities were amended, effective February 7, 2021. The revisions include new rating criteria for recurrent subluxation and instability, patellar instability, and medial tibial stress syndrome (MTSS) or shin splints. Under the revised criteria of DC 5262 for shin splints in effect from February 7, 2021, a 30 percent rating is assignable for shin splints requiring treatment for no less than 12 consecutive months and unresponsive to surgery and other shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assignable for shin splints requiring treatment for no less than 12 consecutive months and unresponsive to surgery and other shoe orthotics, one lower extremity. A 10 percent rating is assignable for shin splints requiring treatment for no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A non-compensable rating is assignable for shin splints requiring treatment for less than 12 months, one or both lower extremities. When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Ratings for left and right knee disabilities A July 2008 rating decision granted service connection for left knee sprain, shin splints, and ruptured aponeurosis of the left lower extremity. A 10 percent rating was assigned from January 2008 under DC 5257, based on motion limited by pain. Although the rating decision listed DC 5257, the 10 percent rating was based on painful limited motion of the left knee and not a finding of instability. A June 2010 rating decision continued a 10 percent rating for left knee sprain with lower extremity shin splint. The left shin splint was included in the evaluation of the left knee. A February 2017 rating decision continued a 10 percent rating for left knee sprain with lower extremity shin splint. A March 2019 Board decision granted a separate 10 percent rating for limitation of extension of the left knee from July 26, 2013. The Board decision was implemented by a March 2019 Board decision. A July 2021 rating decision granted a separate 10 percent rating for patellar subluxation of the left knee, effective from June 4, 2021. A January 2008 rating decision granted service connection for shin splints of the bilateral lower extremities and assigned a non-compensable rating for the right leg. A June 2010 rating decision continued a non-compensable rating for right lower extremity shin splint under DC 5311. The rating decision revised the January 2008 rating decision to reflect that there was ruptured aponeurosis of the right lower extremity, rather than the left. A February 2017 rating decision granted a 10 percent rating for right knee strain with shin splints from January 10, 2017. The evaluation was based on painful motion of the right knee under DC 5260. A July 2021 rating decision granted a separate 10 percent rating for patellar subluxation of the right knee from June 4, 2021. At a May 2008 VA examination, the Veteran complained of shin splints, right greater than left. He reported pain to the anterior tibial region, which was described as 10/10, sharp in nature, and intermittent. He stated that walking, bending, and standing were not affected by the pain in his shins. The Veteran stated that he had left knee pain that was sharp in nature, intermittent, and located outside of his knee. He reported a history of locking. He denied any giving way sensation, dislocation, or subluxation. He denied the use of a brace or a cane. He reported that his activities of daily living were only affected when it came to running. He denied any surgery. The Veteran reported that he injured his left knee in 2005 (during service) when he was working on a F-16. He stated that he noticed pain to the left knee with some locking type pain. He went to sick call and was treated conservatively for a left knee sprain. He reported that he noticed shin splints during an airmen leadership course and was referred to orthopedics, which diagnosed a right aponeurosis tear. The examiner noted that service records shows treatment for left knee sprain and normal knee x-rays. Examination of the left knee showed no edema, effusion, guarding, or atrophy. There was pain to palpation noted to the lateral posterior joint line. The left knee was stable to varus and valgus stress at neutral and 30 degrees of flexion. The examiner diagnosed shin splints, ruptured aponeurosis of the left lower extremity, and left knee sprain. Testing showed a negative Lachman test bilaterally. There was a questionable McMurray's test of the left knee. The examination report noted that the examination showed a suspicion of a meniscus tear of the left knee, with a follow up MRI recommended. A June 2008 MRI report reflects that there was no meniscal tear of the left knee. A July 2013 VA examination reflects that the Veteran reported bilateral knee pain with ambulation. The examination noted normal joint stability of the left and right knees. There was no history of recurrent patellar subluxation or dislocation. The examination noted a history of shin splints, with symptoms of pain with weight-bearing. The examination noted evidence of acquired genu recurvatum with weakness and insecurity in weight bearing. There were no meniscal conditions. The Veteran reported that he regularly used a brace and occasionally used a cane during flare-ups. There was no x-ray evidence of traumatic arthritis or recurrent subluxation. The July 2013 examination showed left knee extension limited to 5 degrees, which was the basis of a grant of a separate compensable rating for limitation of extension. At a Board hearing in January 2015, the Veteran testified that he had pain on use of his knees. An August 2015 examination noted a diagnosis of left knee sprain with shin splints and right leg shin sprints with ruptured aponeurosis. The Veteran reported a problem with intermittent pain over the anterior tibial region that was triggered by high impact activities like running and/or jumping due to the conditions mentioned above. The Veteran reported intermittent left knee pain with high impact activities and/or kneeling. The Veteran reported sharp pain, with locking up. There was no reduction in muscle strength of the left knee. There was no muscle atrophy. He did not have ankylosis of the left knee. The examination noted that the Veteran did not report right knee pain. Joint stability tests were normal. The examination report noted shin splints with pain over the anterior tibial area. The examination noted that the shin splints did not affect the range of motion of the ankle or knee. There was no recurrent effusion and no history of meniscal conditions. There was tenderness to palpation of the anterior tibial area. There was no evidence of muscle hernia. The Veteran reported that he regularly used a brace for his shin splints. Degenerative or traumatic arthritis was not documented. A January 2017 VA examination reflects a diagnosis of knee strain of both knees. The Veteran reported pain in both knees. There was no ankylosis of the knee and no history of recurrent subluxation or lateral instability. Joint stability tests were normal. The examination noted that the Veteran did not have any meniscus conditions. Imaging studies did not show traumatic or degenerative arthritis. A January 2018 VA examination noted that was no ankylosis of either knee, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran did not have any meniscus conditions of either knee. The examination noted regular use of a brace. The examination noted that the Veteran had a compression brace for his left knee but reported that he used a brace on both knees at times. Imaging studies indicated that there was no degenerative or traumatic arthritis. The Veteran reported that he had lost 0-1 weeks of work in the past year due to his knee disabilities. The Veteran reported that he changed careers due to his knee problems from an aircraft mechanic to an IT specialist. A July 2020 VA examination noted right and left knee strain. There was no ankylosis present. There was no history of lateral instability, recurrent subluxation, or effusion. Joint stability tests were normal. The examiner noted a history of shin splints, with no current symptoms. There were no meniscus conditions. The Veteran reported regular use of a brace. Imaging studies were performed. Degenerative or traumatic arthritis was not documented. At an April 2021 VA examination, the examiner diagnosed bilateral knee strain and shin splints and right chondromalacia patellae. The Veteran reported pain, occasional swelling, and occasional buckling of the knees. The Veteran denied flare-ups of his knees or lower legs. The Veteran described his functional loss as not being able to stand or walk for long periods of time. The Veteran denied flare-ups or the knees and/or lower leg. The examination noted that there was no history of recurrent subluxation or lateral instability. There was no history of frequent effusion of the knee. The examination noted that abnormal range of motion contributed to functional loss with difficulty with prolonged kneeling, squatting, and climbing stairs. The Veteran had flexion of the right knee to 70 degrees and extension to 0 degrees. Passive range of motion of the right knee was the same as active motion. The Veteran had flexion of the left knee to 85 degrees and extension to 0 degrees. Passive range of motion of the left knee was the same as active range of motion. There was pain with weight-bearing, non-weight bearing, active motion, and passive motion. There was objective evidence of crepitus. The examiner noted that pain caused functional loss. The examiner did not find that there was additional limitation of motion attributable to pain, weakness, fatigability, or incoordination. The April 2021 examination indicated that there was no additional limitation of motion of the knees with repetition. The examiner opined that the procured evidence does not show that the Veteran's functional ability of the knee is additionally limited due to pain, fatigability, weakness, lack of endurance, or incoordination with repeated use over time. The examiner opined that the procured evidence does not suggest that pain, fatigability, weakness, lack of endurance, or incoordination limits functional ability with flare-ups. There were no additional factors contributing to disability. There was no ankylosis of either knee. The Veteran did not have recurrent subluxation or persistent instability. He did not have a ligament tear and did not require a prescription for a cane, walker, crutches, or brace. He did not have any meniscal conditions of either knee. The Veteran had left and right shin splints with treatment for less than 12 consecutive months. The Veteran reported the regular use of a brace. In an April 2021 addendum opinion, the examiner indicated that the Veteran's knees were tested in active and passive motion and weight-bearing and non-weight-bearing. The examiner again noted that the Veteran did not have flare-ups. A private treatment record date in June 2021 reflects a diagnosis of painful right knee degenerative arthritis and bilateral patellofemoral subluxation. Evaluation of the right knee and shin splints The Veteran had a non-compensable rating for his right knee disability prior to January 10, 2017. VA examination in July 2013 showed a complaint of bilateral knee pain with ambulation. The July 2013 VA examination and the Veteran's hearing testimony in 2015 provided credible evidence of painful motion of the right knee. The Board notes that for painful motion assigned pursuant to 38 C.F.R. § 4.59 and Burton, a lay person is competent to provide "objective" evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415, 424-30. Painful motion is entitled to at least the minimum compensable rating for the joint under 38 C.F.R. § 4.59. The Board finds that a 10 percent rating is warranted under DC 5260 for painful motion of the right knee during the rating period prior to January 10, 2017. A rating higher than 10 percent is not assignable for limitation of motion of the right knee, as the Veteran does not have flexion limited to 30 degrees or extension limited to 10 degrees. During the appeal period, the Veteran had flexion of the right knee no worse than 70 degrees, with consideration of functional loss. He had full extension of his right knee. The Veteran denied flare-ups on his most recent VA examination. The examiner found that there was no additional limitation of motion due to pain, fatigability, weakness, lack of endurance, incoordination with repeated use over time, or flare-ups. In light of the medical and lay evidence, even with consideration of additional range of right knee motion lost due to pain and weakness and other functional loss factors during flare-ups or after repetitive motion, the Board finds that the Veteran's limitation of right knee flexion at no point warrants a rating in excess of 10 percent. See 38 C.F.R. §§ 4.40, 4.45; 4.59; Sharp, 29 Vet. App. at 33; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. The Board has considered the impact of functional loss upon the Veteran's range of motion for his right knee. VA regulations addressing functional loss do not require the assignment of a higher schedular rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson, supra., at 785-86 (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a)."). In the present case, limitation of right knee flexion to 30 degrees, which is necessary to meet the criteria for a higher 20 percent rating under Diagnostic Code 5260, is not shown. See 38 C.F.R. § 4.71a. The evidence does not show that he has additional functional loss of the right knee due to pain and flare-ups which approximates the criteria for a higher rating. Even with consideration of painful motion of the right knee, he had flexion to 70 degrees and full extension. The April 2021 examiner found that the Veteran did not have additional limitation of motion attributable to flare-ups, pain, weakness, fatigability, or incoordination. With regard to a separate rating for limitation of extension of the right knee (Diagnostic Code 5261), VA's General Counsel has further held that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same knee joint, without violating the rule against pyramiding. See VAOPGCPREC 9-2004 (Sept. 17, 2004). However, in this case, a separate rating for right knee extension is not warranted because the clinical evidence of record establishes no compensable limitation of extension for the right knee under Diagnostic Code 5261. During the rating period, imitation of extension at worst was noted to be full at 0 degrees, even when considering functional loss and painful motion. This constitutes a noncompensable degree of limitation of extension for the right knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has also considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the left knee. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the criteria for separate ratings under other diagnostic codes for knee disabilities are not more appropriate because the facts of the case do not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5258 (dislocated semilunar cartilage / meniscus injury); Diagnostic Code 5259 (removal of the semilunar cartilage / meniscectomy); Diagnostic Code 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum). No probative medical or lay evidence of record supports application of any of these diagnostic codes for the right knee. No meniscus conditions of the right knee have been diagnosed. The Veteran does not have malunion of the tibia and fibula. While an examination in July 2013 noted acquired genu recurvatum, no other examination during the appeal period showed an assessment of genu recurvatum. Therefore, the Board finds that the assignment of a separate rating under DC 5263 for genu recurvatum is not appropriate. The Board finds that a separate rating for instability of the right knee is not warranted. VA examinations in May 2008, July 2013, August 2015, January 2017, January 2018, and June 2020 did not show a history, complaints, or findings of instability, giving way sensation, or subluxation. An April 2021 VA examination noted a complaint of occasional buckling of the knees. However, the April 2021 examination found that persistent instability was not present. The Court has held that Diagnostic Code 5257 does not require objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). The medical and lay evidence prior to April 2021 did not show complaints of instability of the right knee. Although he reported occasional buckling in April 2021, the examiner did not diagnose persistent instability of the right knee. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. Accordingly, weighing both the lay and medical evidence, a separate rating for instability of the right knee is not warranted. A private treatment record dated in June 2021 reflects a diagnosis of subluxation of the right knee. A 10 percent rating has been assigned for recurrent subluxation from June 29, 2021. The criteria for a rating in excess of 10 percent for subluxation are not met, as the evidence does not show that a medical provider has prescribed an assistive device (e.g., cane, crutch, walker) or bracing for ambulation. The Board finds that the criteria for a separate compensable rating for shin splints are not met under either the criteria for muscle disability or the revised criteria in effect from February 2021. The evidence during the appeal period shows that right shin splints was manifested by no more than slight muscle disability, which warrants a noncompensable rating under DC 5311. The August 2015 VA examination noted that there was tenderness to deep palpation over the anterior tibial area on both legs, with no evidence of any muscle hernia of the lower extremities was found on exam. The Veteran's gait was normal. Thus, the evidence reflects no more than slight muscle disability. Applying the revised rating criteria in effect from February 7, 2021, the April 2021 VA examination shows that the Veteran's shin splints required treatment for less than 12 consecutive months. As shin splints required treatment for less than 12 consecutive months, the criteria for a compensable rating under the revised criteria of DC 5262 are not met. For the above reasons, the evidence supports a finding that a 10 percent rating, but no higher, is warranted for limitation of flexion of the right knee prior to January 10, 2017. The evidence is neither evenly balanced nor approximately so with regard to whether higher ratings are warranted for limitation of flexion of the right knee after January 10, 2017 or recurrent subluxation of the right knee. Rather, the evidence persuasively weighs against the assignment of higher ratings for limitation of flexion after January 10, 2017 and recurrent subluxation of the right knee. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Evaluation of the left knee and shin splints The Veteran has a 10 percent rating for a painful left knee joint under Diagnostic Code 5003-5260 because his left knee arthritis has manifested in painful but noncompensable limitation of flexion of the left knee. 38 C.F.R. § 4.71a. His left knee has not demonstrated compensable limitation of flexion at any time during the rating period. Further, although the initial rating was assigned under DC 5257, the RO found that the Veteran did not have recurrent subluxation or instability of the left knee. In the February 2017 rating decision, the rating code was changed to DC 5260 based upon painful motion of the knee, rather than instability. The Board finds that a rating in excess of 10 percent for limitation of motion of the left knee is not warranted. The evidence does not show that he has additional functional loss of the left knee due to pain and flare-ups which approximates flexion limited to 30 degrees, which is required for a higher rating. The April 2021 examiner found that the Veteran had left knee flexion limited to 85 degrees, with consideration of painful motion of the knee. The examiner found that there were no flare-ups and no additional limitation of motion attributable to pain, weakness, fatigability, or incoordination. Therefore, even with consideration of functional loss due to pain, the range of motion of the left knee flexion does not approximate the criteria for a rating higher than 10 percent under DC 5260. Thompson, supra. The Board has considered whether a separate rating is warranted for limitation of extension of the left knee prior to July 26, 2013. He had full extension of his left knee prior to July 26, 2013. There was no additional limitation of motion due to pain or flare-ups. The Board found that a 10 percent rating was warranted based on limitation of extension of the left knee from July 26, 2013. The evidence does not show that the Veteran had left knee extension limited to 15 degrees at any point, even with consideration of functional loss. On examination in April 2021, the Veteran had full left knee extension to 0 degrees. The Veteran denied flare-ups. The examiner found that the Veteran did not have additional limitation of the left knee due to pain weakness, fatigability, or incoordination. Therefore, a rating higher than 10 percent is not warranted for limitation of extension of the left knee at any point. In addition, a compensable rating is not assignable prior to July 26, 2013, as the evidence during that period showed full extension of the left knee. The Board has also considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the left knee. See Butts, supra. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, supra v. Brown; Lyles, supra. However, other diagnostic codes for left knee disabilities are not more appropriate because the facts of the case do not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5258 (dislocated semilunar cartilage / meniscus injury); Diagnostic Code 5259 (removal of the semilunar cartilage / meniscectomy); Diagnostic Code 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum). No probative medical or lay evidence of record supports application of any of these diagnostic codes for the left knee. The Veteran has not been diagnosed with a meniscus condition of the left knee. The Veteran does not have malunion of the tibia and fibula. The Board notes that while an examination in July 2013 noted acquired genu recurvatum, no other examination or private treatment record during the appeal period contains a diagnosis genu recurvatum. Therefore, the Board finds that the assignment of a separate rating for genu recurvatum is not appropriate. The Board finds that a separate compensable rating for instability of the left knee is not warranted. Initial evidence of recurrent subluxation of the left knee was shown in a private treatment record dated in June 2021. There were no findings of instability or subluxation prior to that date. VA examinations in May 2008, July 2013, August 2015, January 2017, January 2018, and June 2020 did not show a history, complaints, or findings of instability, giving way sensation, or subluxation. Those examinations noted that there was no history of recurrent subluxation or lateral instability. An April 2021 VA examination showed a complaint of occasional buckling of the knees. As noted, the Court has held that Diagnostic Code 5257 does not require objective evidence of instability. English, supra. The April 2021 examiner found that persistent instability of the knee was not present. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. The Board finds that examination report more probative as to the presence of instability of the left knee. Accordingly, having considered the lay evidence and the examination results, the Board finds that the evidence does not support a separate rating for instability of the left knee. The medical and lay evidence prior to June 29, 2021 does not show complaints of recurrent subluxation of the left knee. Accordingly, the criteria for a compensable rating for subluxation were not met prior to June 29, 2021. The criteria for a rating in excess of 10 percent for subluxation of the left knee are not met after June 29, 2021, as the evidence does not show that a medical provider has prescribed an assistive device (e.g., cane, crutch, walker) or bracing for ambulation. The Board finds that the criteria for a separate compensable rating for shin splints are not met under either the criteria for muscle disability or the revised criteria in effect from February 2021. The evidence during the appeal period shows that left shin splints was manifested by no more than slight muscle disability. This warrants a noncompensable rating under DC 5311. Applying the revised rating criteria, the April 2021 VA examination shows that the Veteran's shin splints required treatment for less than 12 consecutive months. As shin splints required treatment for less than 12 consecutive months, the criteria for a compensable rating under the revised criteria of DC 5262 are not met. (Continued on Next Page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether higher ratings are warranted for limitation of flexion, limitation of extension, and recurrent subluxation of the left knee. Rather, the evidence persuasively weighs against the assignment of higher ratings. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.