Citation Nr: 22017346 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-22 964A DATE: March 24, 2022 ORDER Entitlement to an increased disability evaluation for right lower extremity peripheral neuropathy, currently rated as 20 percent disabling, is denied. Entitlement to an increased disability evaluation for left knee osteoarthritis, currently rated as 10 percent disabling, is denied. Entitlement to an increased disability evaluation for right knee tricompartmental osteoarthritis, rated as 10 percent disabling for the rating period prior to May 5, 2021, is denied. Entitlement to an increased disability evaluation for right knee tricompartmental osteoarthritis, rated as 20 percent disabling for the rating period since May 5, 2021, is denied. Entitlement to an increased disability evaluation for right knee limitation of extension, currently rated as noncompensable, is denied. Entitlement to an increased disability evaluation for left knee instability, currently rated as 20 percent disabling, is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity peripheral neuropathy is productive of moderate incomplete paralysis of the sciatic nerve. 2. The Veteran's left knee osteoarthritis is manifested by limitation of flexion, with pain on motion; remaining functional flexion was better than 45 degrees; there was no indication of locking, tibia or fibula impairment, genu recurvatum, or ankylosis, or additional functional loss warranting greater compensation. 3. For the rating period prior to May 5, 2021, the Veteran's right knee tricompartmental osteoarthritis is manifested by limitation of flexion, with pain on motion; remaining functional flexion was better than 45 degrees; there was no indication of locking, tibia or fibula impairment, genu recurvatum, instability, or ankylosis, or additional functional loss warranting greater compensation. 4. For the rating period since May 5, 2021, the Veteran's right knee tricompartmental osteoarthritis is manifested by limitation of flexion; remaining functional flexion was better than 15 degrees; there was no indication of locking, tibia or fibula impairment, genu recurvatum, or ankylosis, but there is additional functional loss due to pain. 5. The Veteran has extension of the right knee to 5 degrees. 6. The Veteran's left knee is productive of no more than moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2021). 2. The criteria for a disability evaluation in excess of 10 percent for left knee tricompartmental osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2021). 3. The criteria for a disability evaluation in excess of 10 percent for right knee tricompartmental osteoarthritis, for the rating period prior to May 5, 2021, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2021). 4. The criteria for a disability rating in excess of 20 percent for right knee tricompartmental osteoarthritis, for the rating period since May 5, 2021, have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2021). 5. The criteria for an initial compensable disability rating for right knee limitation of extension have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2021). 6. The criteria for a disability rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from April 1970 to March 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. During the pendency of the appeal, in a May 2021 rating decision, the Veteran was granted an increased, 20 percent disability evaluation for his right knee tricompartmental osteoarthritis, effective January 8, 2021. In a November 2021 rating decision, the AOJ found clear and unmistakable error in the May 2021 rating decision as to the effective date assigned, and assigned an effective date of May 5, 2021, for the award of a 20 percent disability evaluation for his right knee tricompartmental osteoarthritis. In a November 2021 Board decision, the Board granted a 30 percent rating for instability of the right knee, entitlement to a total disability rating due to individual unemployability, and entitlement to special monthly compensation based on the need for aid and attendance. Thus, these issues are no longer on appeal. In November 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in November 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that new evidence was added to the record after issuance of the November 2021 Supplemental Statement of the Case (SOC), and the Veteran has not waived initial consideration by the RO. However, remand for review by the AOJ in the first instance is not required. To the extent that the VA treatment records are relevant to the issues on appeal, the VA treatment records are duplicative of those previously considered by the AOJ; the remaining VA treatment records pertain to claims not currently before the Board. See 38 C.F.R. §§ 19.37(a), 20.1305(c) (2021). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5257. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board further notes that the Diagnostic Codes governing the evaluation of impairment of the femur were amended effective February 7, 2021. However, the record does not demonstrate any evidence of an impairment of the femur, thus, these changes will not be addressed. 38 C.F.R. § 4.71a, Diagnostic Code 5255. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5255 1. Entitlement to an increased disability evaluation for right lower extremity peripheral neuropathy, currently rated as 20 percent disabling. The Veteran is currently assigned a 20 percent disability evaluation for his peripheral neuropathy of the right lower extremity pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720. Under Diagnostic Code 8720, a 20 percent evaluation is assigned for neuralgia with moderate incomplete paralysis of the sciatic nerve and a 40 percent disability rating requires moderately severe incomplete paralysis. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8720. "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). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the Veteran's right lower extremity peripheral neuropathy most closely approximates the criteria for the currently assigned 20 percent disability evaluation. In this regard, the Board notes that, at the March and June 2017 VA peripheral nerves examinations, the Veteran's right lower extremity radiculopathy of the sciatic nerve manifestations were described as moderate for the right lower extremity; his symptoms were also described as mild or moderate at a May 2018 VA back VA examination. To this point, the Board observes that the Veteran had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness at the 2017 VA examinations; although he had severe intermittent pain, paresthesias and/or dysesthesias, and numbness at a May 2021 VA back examination, his June and October 2021 VA treatment records indicated that his lower extremity pain was due to a combination of the Veteran's gout, pulmonary vascular disease, and radiculopathy. Likewise, at all of his VA examinations, his reflexes were intact and muscle strength was full; the March 2017 examination report attributed his atrophy to his service-connected right knee disability. The Board points out that the Veteran's symptomatology was relatively consistent during the rating period on appeal, and the Veteran's VA treatment records for the rating period do not demonstrate a worsening of manifestations consistent with moderately severe peripheral neuropathy of the right lower extremity. The Board finds that, in considering the evidence as a whole, the characterization of the Veteran's symptomatology by the March 2017 and June 2017 VA examiners to be highly probative. The VA examiners performed a physical examination and relevant testing, and characterized the Veteran's peripheral neuropathy as productive of moderate incomplete paralysis of the right lower extremity. Additionally, the dictionary definition of moderate is in accordance with the Veteran's overall disability picture, his symptoms were not violent, severe, or intense, and were limited in scope and effect. Further, he had normal sensation and muscle strength, no atrophy, and his pain was noted to be moderate. All other symptoms were sensory only. In conclusion, the Veteran's symptomatology most closely approximates the criteria for the currently assigned 20 percent disability evaluation for moderate incomplete paralysis of the sciatic nerve as a result of his service-connected right lower extremity peripheral neuropathy for the entire rating period on appeal. The evidence of record does not show that he experiences moderately severe incomplete paralysis of the right sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected right lower extremity peripheral neuropathy. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased disability evaluation for left knee osteoarthritis, currently rated as 10 percent disabling. 3. Entitlement to an increased disability evaluation for right knee tricompartmental osteoarthritis, rated as 10 percent disabling for the rating period prior to May 5, 2021. 4. Entitlement to an increased disability evaluation for right knee tricompartmental osteoarthritis, rated as 20 percent disabling for the rating period since May 5, 2021. The Veteran is currently assigned a 10 percent rating for his service-connected left knee osteoarthritis. He is also assigned a 10 percent disability evaluation for his right knee tricompartmental osteoarthritis for the rating period prior to May 5, 2021, and a 20 percent disability evaluation thereafter. The Veteran's disability ratings are assigned pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 5260. See 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Board notes that the amended Diagnostic Code 5003, effective February 7, 2021, is substantively unchanged. To this point, the Board notes that Diagnostic Code 5003 was revised to reflect that this Diagnostic Code only applies to degenerative arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran has not reported experiencing any incapacitating exacerbations with regard to his left and right knees. Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As will be discussed below, the Veteran is currently in receipt of a noncompensable disability evaluation, per knee, for limitation of extension. In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. The Board observes that the Veteran is separately evaluated for his right and left knee instability; his right knee instability is not currently on appeal and his left knee instability will be discussed below. 38 C.F.R. § 4.71a, Diagnostic Code 5257. See also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257) (revised regulation for Diagnostic Code 5257). a. Right knee prior to May 5, 2021 The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected right knee tricompartmental osteoarthritis most closely approximate the diagnostic criteria for the currently assigned 10 percent disability rating for the rating period prior to May 5, 2021. With regard to limitation of motion, the Veteran has not demonstrated that his right knee has compensable limitation of flexion in excess of that provided for a 10 percent disability evaluation. The Board observes that the Veteran, at his VA examinations, had flexion of the right knee to no worse than 40 degrees at the March 2017 VA examination; at the June 2017 VA examination, he had flexion to 90 degrees. Nevertheless, the Veteran reported that he experienced pain on flexion based on repeated use over time. Likewise, he had tenderness to palpation of the interior patella of the knee, with crepitus and effusion. The Board acknowledges that the Veteran had flexion limited to 40 degrees at the March 2017 VA examination, but, a higher, 20 percent rating would require flexion of 30 degrees, which was not demonstrated by the medical evidence of record. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260. b. Right knee since May 5, 2021 The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected right knee tricompartmental osteoarthritis most closely approximate the diagnostic criteria for the currently assigned 20 percent disability rating for the period since May 5, 2021. With regard to limitation of motion, the Veteran has not demonstrated that his right knee has compensable limitation of flexion in excess of that provided for a 20 percent disability evaluation. The Board observes that the Veteran, at his May 2021 VA examination, had flexion of the right knee to no worse than 105 degrees; estimated range of motion upon repetitive use testing reflected flexion to 50 degrees and estimated range of motion during a flare-up was flexion to 20 degrees. Nevertheless, the Veteran reported that he experienced pain and weakness based on repeated use over time. Likewise, he had tenderness to palpation of the patella of the knee, with crepitus and effusion. The Board acknowledges that the Veteran had estimated flexion during a flareup limited to 20 degrees at the May 2021 VA examination, but, a higher, 30 percent rating would require flexion of 15 degrees, which has not been demonstrated by the medical evidence of record. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260. c. Left knee The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected left knee osteoarthritis most closely approximates the diagnostic criteria for the currently assigned 10 percent disability rating for the entire rating period on appeal. With regard to limitation of motion, the Veteran has not demonstrated that his left knee has compensable limitation of flexion in excess of that provided for a 10 percent disability evaluation. The Board observes that the Veteran, at his VA examinations, had flexion of the left knee to no worse than 45 degrees at the March 2017 VA examination; at the June 2017 and May 2021 VA examinations, he had flexion to 105 degrees. Nevertheless, the Veteran reported that he experienced pain on flexion and incoordination based on repeated use over time. Likewise, he had tenderness to palpation of the patella of the knee, with crepitus and effusion. The Board acknowledges that the Veteran had flexion limited to 45 degrees at the March 2017 VA examination, but, a higher, 20 percent rating would require flexion of 30 degrees, which has not been demonstrated by the medical evidence of record. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260. d. Other considerations Further, there is no evidence of ankylosis, dislocation of the semilunar cartilage, or locking of the left and/or right knees, tibia or fibula impairment, or genu recurvatum, at any time during the rating period on appeal. Thus, higher ratings for the left and/or right knees based on Diagnostic Codes 5256, 5258, 5259, 5262, and 5262 are not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5262. See also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262) (revised regulations for Diagnostic Code 5262). Finally, with regard to functional loss, the Veteran's current evaluations contemplate pathology productive of painful motion. The evaluation is consistent with the functional equivalent of limitation of flexion to 45 degrees for the left knee; he had the functional equivalent limitation of flexion for the right knee to 40 degrees prior to May 5, 2021, and to 20 degrees flexion for the rating period since May 5, 2021. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees on the left for the entire rating period and on the right for the rating period prior to May 5, 2021; there must be functional equivalent on the right of 15 degrees flexion for the rating period since May 5, 2021 (Diagnostic Code 5260). The Board accepts the lay evidence that the Veteran experiences pain. Similarly, the Board accepts the evidence that he has limitation of flexion and pain upon flexion. However, the limitation of motion due to pain is contemplated in the current evaluation that recognizes his painful motion. Although the Veteran has pain, there is no indication that he has additional functional impairment, above and beyond the current disability evaluations for his service-connected right and left knee osteoarthritis would support a higher rating for either knee, during any part of the rating periods on appeal. The Board acknowledges that the VA examination reports reflect complaints of pain; however, there was no objective evidence of deformity. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Veteran's right knee muscle atrophy is contemplated in his separate disability evaluation for service-connected right knee instability. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See Brady v. Brown, 4 Vet. App. 203, 206 (1993). See also 38 C.F.R. § 4.14. Here, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the right and/or left knees during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, none of the medical evidence demonstrates ankylosis or the equivalent of ankylosis during flare-ups. Thus, additional compensation on this basis is not warranted. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). Therefore, the Board finds that the evidence does not support increased disability evaluations for the Veteran's service-connected right knee tricompartmental osteoarthritis and left knee osteoarthritis during any portion of the rating periods on appeal. 5. Entitlement to an increased disability evaluation for right knee limitation of extension, currently rated as noncompensable. The Veteran is currently assigned a noncompensable disability rating for his service-connected limitation of extension of the right knee pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants 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. The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected limitation of extension of the right knee most closely approximate the diagnostic criteria for the currently assigned noncompensable disability rating. With regard to limitation of motion, the Veteran has not demonstrated that his right knee has compensable limitation of extension. The Board observes that the Veteran, at his VA examinations, had extension of the right knee to no worse than 5 degrees. Nevertheless, the Veteran reported that he experienced pain on motion based on repeated use over time. A higher, 10 percent rating would require extension limited to 10 degrees. In the absence of this level of limited motion, a higher rating based on limitation of extension is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As previously indicated, with regard to functional loss, the Veteran's current evaluation contemplates pathology productive of painful motion. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of extension to 10 degrees. The Board accepts the lay evidence that the Veteran experiences pain. Similarly, the Board accepts the evidence that he has limitation of motion. However, the limitation of motion due to pain is contemplated in the current evaluation that recognizes his painful motion. Although the Veteran has pain, such pain does not functionally limit extension to 10 degrees; the May 2021 VA examiner found that a flare-up would not change the Veteran's range of motion. There is no indication that he has additional functional impairment which would support a higher rating for extension of the right knee. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. Here, neither the medical nor lay evidence suggests that his limitation of motion approximated 10 degrees extension for the right knee. Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the right knee. Therefore, the Board finds that the evidence does not support a compensable disability evaluation for the Veteran's service-connected right knee limitation of extension for the entire rating period on appeal. 6. Entitlement to an increased disability evaluation for left knee instability, currently rated as 20 percent disabling. The Veteran is currently assigned a 20 percent disability evaluation for his left knee instability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the prior rating criteria for Diagnostic Code 5257, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Under the amended rating criteria for Diagnostic Code 5257, effective February 7, 2021, a 20 percent rating is assigned for one of the following: (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 an 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. The new rating criteria for Diagnostic Code 5257 also indicates that for patellar instability, 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 rating is assigned for a diagnosed condition involving the patella femoral 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) indicates for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) indicates 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 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected left knee instability most closely approximate the criteria for a 20 percent disability rating, under both the old and new rating criteria, for the rating period on appeal. In this regard, the Board observes that the Veteran does not have a meniscal tear or patellar dislocation during any part of the rating period. The Board acknowledges that the Veteran uses a walker for ambulation, but VA examination reports and treatment records reflect that the Veteran uses a walker for the combined effects of his service-connected disabilities and nonservice-connected disabilities. Moreover, VA examination reports and treatment records consistently demonstrated that the Veteran has symptoms reflecting no more than moderate instability of the left knee. The March and June 2017 VA examination reports reflect that the Veteran had slight lateral instability and recurrent subluxation. At the May 2021 VA examination, he had moderate lateral instability, without patellar dislocation or recurrent subluxation. The VA examination reports also reflect that the Veteran does not have an unrepaired or failed repair of complete ligament tear of the left knee, and that there is no evidence of patellar instability. As such, the criteria for a higher, 30 percent disability evaluation are not met under the revised rating criteria. Therefore, the 20 percent rating for instability of the left knee compensates him for the extent of his instability. For these reasons, the Board finds that the evidence does not support a disability evaluation in excess of 20 percent for left knee instability for the entire rating period on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.