Citation Nr: 22017349 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 07-22 161 DATE: March 24, 2022 ORDER Entitlement to an evaluation in excess of 10 percent for left knee derangement and instability is denied. Entitlement to an evaluation in excess of 10 percent for right knee derangement and instability prior to April 21, 2021, is denied. Entitlement to an evaluation in excess of 20 percent, but no higher, for right knee derangement and instability from April 21, 2021, is granted. Entitlement to an evaluation in excess of 10 percent for left knee limitation of flexion is denied. Entitlement to an evaluation in excess of 10 percent for right knee limitation of flexion is denied. Entitlement to an evaluation in excess of 20 percent for right knee limitation of extension is denied. Entitlement to an evaluation for a lumbar spine disability in excess of 20 percent is denied. Entitlement to an initial evaluation for a cervical spine disability in excess of 10 percent prior to September 5, 2019, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left knee derangement and instability have been slight but not moderate. There is not an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider has not prescribed both an assistive device and/or bracing for ambulation. 2. Prior to April 21, 2021, the Veteran's right knee derangement and instability have been slight but not moderate. 3. From April 21, 2021, the Veteran's right knee derangement and instability has shown an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider has prescribed both an assistive device and/or bracing for ambulation 4. The Veteran's left knee disability is not manifest by flexion limited to 45 degrees or less, extension limited to 10 degrees or more, ankylosis of the knee joint, or other impairment of the tibia or fibula. 5. The Veteran's right knee disability is not manifest by flexion limited to 45 degrees or less, extension limited to 10 degrees or more, ankylosis of the knee joint, or other impairment of the tibia or fibula. 6. From March 28, 2016, the Veteran's right knee disability is not manifested by extension limited to 20 degrees of motion, ankylosis of the knee joint, or other impairment of the tibia or fibula or compensable limitation of flexion. 7. Throughout the period on appeal, the Veteran's lumbar spine disability is manifested by no more than subjective complaints of pain and stiffness without objective evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, total motion of the thoracolumbar spine to less than 120 degrees, and that does not result in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 8. Prior to September 5, 2019, the Veteran's cervical spine disability was not manifested by severe limitation of motion or limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 9. From September 5, 2019, the Veteran's cervical spine disability was not manifested by unfavorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee derangement and instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for an evaluation in excess of 10 percent for right knee derangement and instability prior to April 21, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for an evaluation of 20 percent, but no higher, for right knee derangement and instability from April 21, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement to an evaluation for a left knee disability in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261. 5. The criteria for entitlement to an evaluation for a right knee disability in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261. 6. The criteria for a separate 20 percent rating, but not higher, for limitation of extension of the right knee from March 28, 2016, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 7. The criteria for entitlement to a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242. 8. The criteria for an initial evaluation for a cervical spine disability in excess of 10 percent prior to September 5, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7; 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1981 to August 1989. The matters come to the Board of Veterans' Appeals (Board) from appeals arising from rating decisions in July 2006, June 2015, and March 2016 by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at Board hearings in January 2011 and June 2018 before Veterans Law Judges (VLJ) who are unavailable to participate in a decision; transcripts of these prior Board hearings are of record. In February 2021, the Veteran was notified of his rights to another Board hearing, which he accepted. Another Board hearing was conducted by the undersigned VLJ in October 2021; the transcript is of record. Historically, the Veteran's claim for an increased evaluation for his bilateral knee disorders has been pending since July 2006. Significantly, the Board issued a June 2018 decision denying the Veteran's claims. However, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which remanded that decision in a December 2019 Order, based upon a Joint Motion for Partial Remand (JMPR). Since then, these issues were remanded in July 2020 and in March 2021 and have now returned to the Board for appellate review. Equally, the Veteran's claim for an increased evaluation for a lumbar spine disability has been pending since June 2015. The issue was remanded in July 2020 and March 2021. The matter has now returned to the Board for appellate review. Likewise, the Veteran's claim for an increased initial evaluation for his cervical spine disorder has been pending since March 2016. This matter was remanded in September 2018 and July 2020. The matter has now returned to the Board for appellate review. The Veteran has been in receipt of total disability rating for individual unemployability (TDIU) since 2006 and that issue is not before the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. 1. Entitlement to an evaluation in excess of 10 percent for left knee derangement and instability 2. Entitlement to an evaluation in excess of 10 percent for right knee derangement and instability prior to April 21, 2021 3. Entitlement to an evaluation in excess of 20 percent, but no higher, for right knee derangement and instability from April 21, 2021 The Veteran's left and right knee derangement and instability is currently rated separately as 10 percent disabling pursuant to Diagnostic Code 5257. The Veteran contends that he is entitled to a higher evaluation for the entire period on appeal because his bilateral knee disabilities manifest severe pain that has required multiple surgical procedures. As an initial matter, the Board notes that the Veteran is in receipt of a temporary 100 percent rating for the right knee disability from March 19, 2015, to April 30, 2015, for surgical treatment necessitating convalescence. As this is the maximum schedular rating available, the Board will not consider whether a higher rating is warranted during this period for the Veteran's right knee derangement and instability. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent evaluation is warranted for slight symptoms; a 20 percent evaluation is warranted for moderate symptoms; and a 30 percent evaluation is warranted for severe symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). The words "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 for "equitable and just decisions." 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Prior to the regulatory change, the Rating Schedule did not define "slight," "moderate," or "severe;" however, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021, which included revisions to Diagnostic Code 5257. 85 Fed. Reg. 230 (Nov. 30, 2020). Under the revised Diagnostic Code 5257, a 20 percent evaluation is warranted 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 either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a maximum 30 percent evaluation is warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). If there is patellar instability, 10 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) which does not require a prescription from a medical provider for a brace, cane or walker. 20 percent is available 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. 30 percent will be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair which requires a prescription by a medical provider for a brace and either a cane or a walker. The following notes to the diagnostic code provide further explanation: Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components which 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). Turning to the record, at a February 2006 VA examination, the Veteran reported a history of his knees giving way and locking. Although the examiner noted considerable crepitus at the time of the examination, the examiner determined that there was no laxity of the cruciates or the collaterals. VA treatment records from January and June 2006 reveal that the Veteran complained of pain in his knees. Also, the Veteran reported that his knees would swell during his active military service and have swollen since service. Additional VA treatment records from March 2010 show that the Veteran denied any instability or giving way in his knees. Further, VA treatment records from March 2010 noted some laxity in varus and valgus positioning. In January 2011, the Veteran testified at a Board hearing that his right knee became more problematic after surgery. He further related that he participated in physical therapy after surgery. Additionally, he testified that he has tailor-made braces for his feet that were prescribed by a VA physician. At another VA examination in October 2011, the Veteran complained of some lateral instability bilaterally, with more emphasis on the right knee. Physical examination revealed a stable joint to varus and valgus stress testing, negative anterior and posterior drawer testing. The examiner noted that the Veteran demonstrated mild discomfort medially with McMurray's testing. In August 2013, the Veteran was afforded another VA examination in connection with his claim. At the time of the examination, joint stability testing was reported as normal bilaterally. The Veteran further reported the occasional use of a knee brace. VA treatment records from September 2013 reveal that the Veteran complained of bilateral knee instability during a consult to obtain bilateral knee braces. Further, in November 2013 the Veteran reported continued problems with his right knee after quadricep tendon repair. In June 2014, the Veteran reported that his right knee was unstable, and his history of a quadricep rupture repair in 2011 was noted. In April 2015, the Veteran underwent a VA examination, which was later found to be inadequate by the Court's January 2020 JMPR because the examination did not consider the extent to which pain may result in functional loss either during a flare-up or as a result of repetitive use. However, a report of functional loss due to pain does not impact any joint stability testing performed at the time of the examination. Notably, the examiner reported that joint stability testing normal bilaterally. Also, additional VA treatment records from January 2015 show a positive McMurray test in the right knee. Records from May 2015 reveal that the Veteran reported pain in varus and valgus in the left knee, and again in September 2017, but there was no gross laxity. In February 2016, the Veteran was afforded another VA examination in connection with his claim. Muscle strength testing was normal bilaterally, with the exception of a slight reduction at the right knee extension. Further, muscle atrophy was reported at the right lower extremity, which showed a 3cm difference between the normal side and the atrophied side. Bilateral joint stability testing was normal. The examiner noted that the Veteran reported frequent episodes of bilateral joint pain. An additional VA medical opinion from March 2016 also noted that there was no lateral instability or subluxation in the Veteran's bilateral knees. In June 2018, the Veteran testified at another Board hearing in connection with his claim. In particular, the Veteran related that he continued to have pain in both of his knees. He further indicated that his bilateral knee pain was worsening. Pursuant to the Board's July 2020 remand, a retrospective VA medical opinion was obtained in September 2020. However, this opinion only related to the Veteran's bilateral knee range of motion testing and did not discuss any bilateral knee joint stability testing or results. Next, another VA examination was conducted in April 2021 pursuant to the Board's March 2021 remand. At the time of the examination, the Veteran reported a history of bilateral knee instability. The examiner noted a history of 3 surgical procedures to the right knee, to include two arthroscopy procedures and quadricep tendon rupture repair. There was objective evidence of crepitus. The examiner determined that the Veteran did not have recurrent subluxation or persistent instability of the right or left knee. Further, the examiner found that there had not been a ligament tear in either the left or the right knee. Additionally, the examiner determined that the Veteran did require prescription knee braces bilaterally for ambulation. There was no evidence of recurrent patellar instability reported. In October 2021, the Veteran testified at another Board hearing in connection with his bilateral knee instability disability. The Veteran testified that his knees are in constant pain and that he continues to wear bilateral knee braces. Further, the Veteran related that he believed that he did not have any adequate VA examinations because the examiners did not consider the effect of his bilateral knee disabilities on his whole disability picture. The Board finds the VA examinations adequate as to instability. The Veteran was examined and interviewed by a clinician. Regarding his whole disability picture, the Veteran is in receipt of a TDIU. Based on above, the Board finds that prior to April 2021, the evidence of record does not show that the Veteran has moderate or severe symptoms of right knee instability. Rather, overwhelmingly the evidence Veteran's joint stability testing has been reported as normal for this period. Consequently, the Veteran's entitlement to an evaluation in excess of 10 percent for right and left knee instability under Diagnostic Code 5257 prior to April 2021 is not warranted. Likewise, the evidence of record does not show that the Veteran has moderate symptoms of left knee derangement and instability for the entire period on appeal. In this regard, the records shows that joint stability testing for the Veteran's left knee have been overall been normal. Moreover, the record specifically notes that the Veteran has not had any surgical procedures on his left knee. Therefore, the symptomatology reported for the Veteran's left knee derangement and instability more closely approximates slight instability throughout the period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020 & 2021). The Board has carefully considered the Veteran's reports about instability. English v. Wilke, 30 Vet. App. 347, 352-53 (2018). However, the overall lay and medical evidence indicate that the right knee derangement and instability prior to April 21, 2021, and left knee derangement and instability symptoms for the entire period on appeal, have varied and do not suggest symptoms more nearly approximating moderate. Indeed, the Veteran's statements of instability are consistent with the 10 percent rating assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and joint instability which have been clinically observed and measured in the Veteran's medical records. Additionally, the Board has considered other related or analogous diagnostic codes pertaining to the knee and determined that a higher evaluation is not available for right and left knee instability under any other diagnostic code. From April 21, 2021, the Veteran's right knee derangement and instability warrants an evaluation of 20 percent, but no higher, based on the Veteran's reports and history of ligament tears requiring an assistive device prescribed by a medical provider for ambulation. Specifically, the April 2021 VA examination details that the Veteran has had multiple surgical procedures to repair the ligaments in his bilateral knees, and that he has constantly used a medically prescribed assistive device for his bilateral knee instability. In this regard, the Veteran is entitled to separate evaluations of 20 percent, but no higher, for right and left knee instability under Diagnostic Code 5257 pursuant under the revised regulation effective February 2021. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2021). In conclusion, the Board finds that the evidence of record supports an evaluation of 20 percent, but no higher, for right and left knee instability prior to April 2021, and it persuasively weighs against an evaluation in excess of 10 percent for right and left knee instability prior to April 21, 2021. As the evidence of record persuasively weighs against an increased evaluation for right and left knee instability for the period prior to April 21, 2021, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. Entitlement to an evaluation in excess of 10 percent for left knee limited painful motion 5. Entitlement to an evaluation in excess of 10 percent for right knee limited painful motion 6. Entitlement to an evaluation in excess of 20 percent for right knee limited painful extension The Veteran's left knee disability is rated as 10 percent disabling pursuant to Diagnostic Code 5003-5260. Likewise, prior to March 28, 2016, the Veteran's right knee disability is rated as 10 percent disabling pursuant to Diagnostic Code 5003-5260. From March 28, 2016, the Veteran's right knee disability is rated as 20 percent disabling pursuant to Diagnostic Code 5003-5261. The Veteran seeks a higher evaluation for his service-connected bilateral knee disabilities for the entire period on appeal. At the time the Veteran's claim for an increased rating was filed, he was in receipt of a 10 percent rating for his right and left knee disabilities under Diagnostic Code 5010-5260. However, from March 28, 2016, the Veteran was in receipt of a 20 percent rating his right knee disability under Diagnostic Code 5003-5261. 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 rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. DC 5003 pertains to degenerative arthritis (hypertrophic or ostearthritis). DC 5260 pertains to the limitation of flexion of the leg. DC 5261 pertains to the limitation of extension of the leg. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5260, 5261. As noted above, during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, however, Diagnostic Codes 5260 and 5261 were not changed. Under Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Other diagnostic codes pertaining to the knee and leg that provide for higher than 10 percent evaluations do not apply in this case, as the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256); dislocated semilunar cartilage with locking, pain and effusion into the joint (Diagnostic Code 5258); or impairment of the tibia and fibula (Diagnostic Code 5262). In February 2006, a VA examination revealed that the Veteran reported constant pain, weakness, and stiffness at the bilateral knees. Physical examination was negative for effusion. The examiner noted considerable crepitants with extension flexion overlying the left patella. Range of motion testing revealed that the Veteran had full active range of motion bilaterally, with full extension. Diagnostic testing revealed degenerative arthritis of the bilateral knees. In January 2011, the Veteran testified at his first Board hearing. The Veteran testified that he was diagnosed with degenerative arthritis in both of his knees. He further explained that as time had passed, the symptoms of his bilateral knee disability worsened. Also, the Veteran related that he had been treated with physical therapy for his bilateral knee disabilities. In October 2011, the Veteran was afforded another VA examination in connection with his claim. The examiner noted that the Veteran had complained of chronic bilateral knee pain over many years. Specifically, chronic diffuse, daily aches bilaterally, and clicking. The Veteran also reported that he used knee braces and that his left knee locked with prolonged sitting. Range of motion testing revealed that the right knee lacked 10 degrees of extension and flexion was limited to 110 degrees. The examiner found no change with repetition. Another VA examination was conducted in August 2013. At the time of the examination, the Veteran complained of worsening pain bilaterally. Range of motion testing revealed flexion limited to 130 degrees bilaterally. Extension was reported as normal for the right knee and painful extension at 30 degrees for the left knee. As noted above, the April 2015 VA examination was deemed inadequate for rating purposes pursuant to the Court's January 2020 JMPR. Therefore, the Board will not consider its range of motion findings. At a February 2016 VA examination, range of motion testing for the right knee showed flexion limited to 105 degrees and extension limited to 5 degrees. Range of motion testing for the left knee revealed flexion limited to 120 degrees and full extension. In a March 2016 VA addendum opinion, the examiner found also found flexion of the right knee limited to 105 degrees and extension limited to 5 degrees. Further, the examiner reported left knee flexion limited to 120 degrees with full extension. In June 2018, the Veteran testified at another Board hearing. The Veteran described pain in his bilateral knees to the present day. He further testified that his symptoms had worsened. Pursuant to the Board's July 2020 remand, a retrospective VA medical opinion was obtained. The examiner determined that the Veteran's right knee disability had been constantly improving and that range of motion was only mildly reduced at all examinations. Further, the examiner found that range of motion was reduced by 10 degrees during flare-ups, but there were no significant flare-ups noted by history. Next, at an April 2021 VA examination, the Veteran reported dully aching bone pain stabbing both of his knees. He further reported flare-ups several times a week, lasting up to a few hours after walking long distances. Range of motion testing for the right knee revealed flexion limited to 95 degrees with full extension. There was objective evidence of crepitus. Estimated range of motion during flare ups indicated flexion limited to 85 degrees with full extension. Left knee range of motion testing revealed flexion limited to 120 degrees and extension to 10 degrees, both with pain. In October 2021, the Veteran attended another Board hearing. He testified that he has constant pain in his bilateral knees. The Veteran further explained that his whole disability picture was not considered at the time of his last VA examination; rather, he stated the examiner solely focused on his specific knee problems. He further described that his bilateral knee symptoms as aching and a numbing pain. Based on a careful review of the subjective and clinical findings the Veteran's service-connected left knee disability does not warrant a higher than 10 percent evaluation for limitation of motion under Diagnostic Codes 5260 or 5261. In other words, the clinical findings do not demonstrate that the Veteran's left knee disability manifested flexion limited to 30 degrees or extension limited to 15 degrees. In particular, at worst the Veteran's left knee flexion was limited to 120 degrees, and his extension was limited to 10 degrees. Furthermore, the Veteran's left knee disability continued to experience painful motion; therefore, a 10 percent evaluation is still appropriate based on 38 C.F.R. § 4.59, which provides for a minimum compensable evaluation for such painful motion. Thus, the overall objective findings show that the Veteran is not entitled to a higher than 10 percent evaluation for his left knee disability under Diagnostic Codes 5260 or 5261, or on the basis of functional loss. He has compensable limitation of extension with painful motion, but non compensable limitation of flexion. As such a rating over 10 percent for limitation of motion is not warranted. Likewise, for the period prior to March 28, 2016, the Veteran's right knee disability does not warrant a higher than 10 percent evaluation for limitation of motion under Diagnostic Codes 5260 or 5261. Specifically, during this period, the evidence of record does not demonstrate that the Veteran's right knee disability manifested flexion limited to 30 degrees or extension limited to 15 degrees. At worst, the Veteran's right knee disability showed flexion limited to 105 degrees and extension limited to 5 degrees of motion. Furthermore, the Veteran's right knee disability continued to experience painful motion; therefore, a 10 percent evaluation is still appropriate based on 38 C.F.R. § 4.59, which provides for a minimum compensable evaluation for such painful motion. Thus, the overall objective findings show that the Veteran is not entitled to a higher than 10 percent evaluation for his right knee disability under Diagnostic Codes 5260 or 5261, or on the basis of functional loss. He has compensable limitation of extension with painful motion, but non compensable limitation of flexion. As such a rating over 10 percent for limitation of motion is not warranted. Equally, for the period from March 28, 2016, the Board finds that the symptomatology of the Veteran's right knee disability is more nearly approximated by 20 percent rating criteria under the Diagnostic Code 5003-5261 because during this period his limitation of extension was to 15 degrees. A higher evaluation would be warranted if the limitation of extension was 20 degrees or more, or if there was compensable limitation of flexion. As discussed in detail above the Veteran is in receipt of a separate compensable rating for bilateral knee instability. The Board has also considered whether the Veteran's bilateral knee disabilities resulted in a level of functional loss greater than that already contemplated by the assigned ratings for these periods. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Range of motion based on flare ups was estimated, in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), but it did not provide for an increase. Notably, the history of increasing symptoms and impairment suggests that the last examiner's determinations would, at worst, be an overestimation of the general effect of repeated use over time and flares. As for Correia v. McDonald, 28 Vet. App. 158 (2016), active, passive range of motion findings during weight bearing did not provide for increase in the April 2021 VA examination report. There is no undamaged knee joint to measure. The Board finds no prejudice results from any failure to report range of passive motion or in non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Range of motion testing performed for the knees requires standing testing, which is considered to be testing on weight bearing because the Veteran must support the weight of his body while undergoing such testing. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. The Board acknowledges the Veteran's contentions that his service-connected bilateral knee disabilities warrant an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to musculoskeletal disorders, to include a right and left knee disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's statements are consistent with the ratings assigned. Indeed, the Veteran testified at multiple Board hearing describing the pain that his bilateral knee disabilities cause him. However, the occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected bilateral knee disabilities. Further, the Veteran already is highly rated for his knee disabilities and runs the risk of running afoul of the amputation rule. See 38 C.F.R. § 4.68. In sum, the evidence persuasively establishes that the Veteran's service-connected right knee disability warrants no higher than a 10 percent rating for the period prior to March 28, 2016, and no higher than 20 percent thereafter. Equally, the evidence persuasively establishes that the Veteran's service-connected left knee disability warrants no higher than a 10 percent rating for the entire period on appeal. As such, the reasonable doubt doctrine is not for application. 38 U.S.C. § 5107 (b). 7. Entitlement to an evaluation for a lumbar spine disability in excess of 20 percent The Veteran contends that his service-connected lumbar spine disability warrants an evaluation in excess of 20 percent disabling for the entire appeal period. VA examinations of joints are required to record a veteran's relevant joint's active and passive ranges of motion, and to test a veteran's relevant joint for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, to conduct similar tests on a veteran's opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 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. at 202; see also Mitchell v. Shinseki, 25 Vet. App. at 44. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Effective February 7, 2021, VA published a final rule amending its regulations on the musculoskeletal system, to include amending DCs. See 85 Fed. Reg. 76453 (November 30, 2020). Claims pending prior to the February 2021 effective date will be considered under both old and new rating criteria and whichever criteria is more favorable to the Veteran will be applied. Consequently, rating criteria prior to and after the February 2021 effective date for the new criteria will be considered. The new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. Otherwise, the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine remained the same as prior to February 7, 2021. As noted above, the Veteran's lumbar spine disability is currently rated 20 percent disabling. VA assigns a 20 percent disability rating where a lumbosacral strain results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. VA assigns a 40 percent rating where a lumbosacral strain results in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. VA assigns a 50 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire thoracolumbar spine. Finally, VA assigns a 100 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. There is an alternative formula for rating intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, this is not discussed further as the medical evidence of record contains no evidence or suggestion that the Veteran has been diagnosed with IVDS. Turning to the record, private chiropractic treatment records from December 2014 revealed forward flexion of the lumbar spine limited to 60 degrees with pain, and extension limited to 15 degrees. In June 2015, the Veteran was afforded a VA examination in connection with his claim. The Veteran described chronic daily mid and low back pain for years. He reported using a back brace. Range of motion testing revealed forward flexion limited to 60 degrees and extension limited to 10 degrees. The examiner found that there was no additional loss of function or range of motion after repetition. The examiner found localized tenderness not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal and there was no evidence of muscle atrophy. Deep tendon reflexes and sensory examination were normal. There was no evidence of radicular symptoms or ankylosis. The examination was negative for IVDS. The Veteran reported the regular use of a back brace. Diagnostic testing revealed arthritis. VA treatment records from October 2015 reveal that the Veteran reported chronic lumbar spine pain that radiated to his legs. Additional VA treatment records from July 2020 also indicate that the Veteran reported chronic lumbar spine pain. In September 2020, another VA examination was conducted. The Veteran reported occasional flare ups, but constant pain. Range of motion testing revealed forward flexion limited to 60 degrees, and extension limited to 10 degrees. There was no evidence of guarding or spasms. Muscle strength testing and sensory examination was normal. There was no evidence of radicular pain or ankylosis. The examination was negative for IVDS. The Veteran reported the regular use of a brace for his lumbar spine disability. The examiner noted that the Veteran's lumbar spine disability essentially remained unchanged. Further, the examiner remarked that the Veteran's pain appeared constant and there was no limitation during flare ups. At the October 2021 Board hearing, the Veteran testified about his lumbar spine disability. The Veteran related that he sees a chiropractor monthly for his lumbar spine disability. Further, the Veteran explained that his musculoskeletal disabilities impact each other, and he is in constant pain. Based on this evidence, the Board finds that the symptoms of the Veteran's lumbar spine disability do not meet the criteria for a rating in excess of 20 percent. In order to meet the criteria for the next highest disability rating, the evidence would have to show either limitation of forward flexion to 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The results of the examinations above document that the Veteran has always had more flexibility in his thoracolumbar spine than contemplated by the 40 percent criteria during the appeal period. Indeed, the most recent examiner noted that his lumbar spine disability picture remained unchanged with forward flexion limited to 60 degrees. For Correia, it's clear the examination took place with weight-bearing on the spine in active range of motion in 2020, which is the would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on a VA examination that involved active range of motion testing or weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Similarly, for Sharp, the examiner explained there was no further range of motion impairment during a flare up. The Board acknowledges the Veteran's contentions that his service-connected lumbar spine disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. at 470. Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to musculoskeletal disorders, to include a lumbar spine disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2019). See also Jandreau v. Nicholson, 492 F.3d at 1376-77. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected lumbar spine disability. See also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran's statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected lumbar spine disability. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for a lumbar spine disability. As the evidence of record persuasively weighs against an increased evaluation for a lumbar spine disability, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th at 776. 8. Entitlement to an initial evaluation for a cervical spine disability in excess of 10 percent prior to September 5, 2019, and in excess of 20 percent thereafter The Veteran's cervical spine disability is currently rated as 10 percent disabling for the period prior to September 5, 2019, and as 20 percent disabling thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, the General Rating Formula for Diseases and Injuries of the Spine. The Veteran contends that he is entitled to a higher evaluation for the entire period on appeal. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. As noted above, during the pendency of the appeal, the criteria for rating the musculoskeletal system changed, with the new regulation becoming effective February 7, 2021. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. Otherwise, the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine remained the same as prior to February 7, 2021. Turning to the records, the Veteran was afforded a VA examination in October 2011. At the time of the examination, the Veteran complained of aches at the base of the cervical spine in the midline on a daily basis. The Veteran reported treatment with physical therapy. The examiner noted that the Veteran has had no other hospitalizations, surgery, or trauma, related to a cervical spine disorder. Physical examination revealed normal symmetry and no spinal tenderness. Range of motion revealed forward flexion to 40 degrees. The examiner noted that there was no change with repetition. The examiner determined that the Veteran's cervical spine symptoms were attributable to the Veteran's fibromyalgia. In August 2013, another VA examination was conducted in connection with the Veteran's claim. Range of motion testing revealed forward flexion limited to 40 degrees, with no objective painful motion. The examiner did not find any localized tenderness or pain to palpation at the cervical spine. Muscle strength testing was normal and there was no evidence of muscle atrophy. Deep tendon reflexes and sensory examination were normal. The examination was negative for IVDS. Diagnostic testing revealed arthritis of the cervical spine. In June 2018, the Veteran testified at a Board hearing the Veteran testified that he had severe and moderate degeneration in his upper spine. He explained that he was being treated by a chiropractor and that he recently had stopped acupuncture. Another VA examination was performed in November 2019. The Veteran described his neck pain as a constant tingling and that he had an intermittent shoulder ache. Range of motion testing revealed forward flexion limited to 25 degrees with an estimated forward flexion limited to 20 degrees with repetition. The examiner found muscle spasm and guarding of the cervical spine resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was reduced at the bilateral elbow flexion and extension. There was no evidence of muscle atrophy. There was no evidence of ankylosis of the spine. The examination revealed IVDS of the cervical spine without any episodes of acute signs and symptoms that required bed rest and/or treatment prescribed by a physician in the prior 12-month period. Private treatment records from May 2020 discuss the Veteran's cervical spine range of motion limitation solely in terms of functional impairment. Specifically, that the Veteran had spasm like stiffness bilaterally at the arm and the shoulder; no measurements were reported. However, additional private treatment records from June 2020 revealed the Veteran's cervical range of motion was limited to 40 degrees of forward flexion. In September 2020, the Veteran was afforded another VA examination to determine the severity of his service-connected cervical spine disorder. Range of motion testing revealed forward flexion limited to 35 degrees with pain noted on examination. The examination was negative for any muscle spasms or guarding of the cervical spine. Muscle strength testing was normal. Sensory examination was normal and there was no evidence of ankylosis. The examination was negative for IVDS. In October 2021, another Board hearing was conducted, at which the Veteran testified. The Veteran described that he wakes up with excruciating pain in this neck and that it goes down his whole right arm to his hands. He related that this pain is constant. Applying the range of motion measurements to the General Ratings Formula, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 10 percent for his cervical spine disability for the period prior to September 5, 2019. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. During this period, there is no medical evidence of forward flexion limited to 30 degrees or less, combined range of motion of the cervical spine to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. Id. From September 5, 2019, the Veteran's cervical spine disability does not warrant an evaluation higher than the 20 percent already assigned. Specifically, the evidence detailed above does not demonstrate that that forward flexion was limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. Rather, at worst the Veteran's forward flexion was reported to be limited to 25 degrees with no ankylosis found during any examination during this period. For Correia, the Board finds there was no pain on active range of motion with weightbearing on the last examination. There is not an opposite undamaged joint to consider. Active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. For Sharp, there was no additional loss in range of motion with reported sporadic flare ups. The Board acknowledges the Veteran's subjective complaints of pain through his ranges of motion of the cervical spine for the entire period on appeal, including his multiple Board testimonies. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the cervical spine to less than those levels discussed above and, as such, does not serve as a basis for evaluations in excess of those assigned herein. See Mitchell v. Shinseki, 25 Vet. App. at 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for a cervical spine disability prior to September 5, 2019, and in excess of 20 percent thereafter. As the evidence of record persuasively weighs against an increased evaluation for a cervical spine disability, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th at 776. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.