Citation Nr: 22053745 Decision Date: 09/21/22 Archive Date: 09/21/22 DOCKET NO. 15-04 064 DATE: September 21, 2022 ORDER Eligibility for assistance in acquiring specially adapted housing is granted. An initial disability rating higher than 10 percent for right knee strain, stress fracture, limitation of flexion is denied. An initial disability rating higher than 10 percent for left knee strain, stress fracture, limitation of flexion is denied. An initial disability rating higher than 20 percent for right knee strain, stress fracture, limitation of extension is denied. An initial disability rating higher than 20 percent for left knee strain, stress fracture, limitation of extension is denied. An initial disability rating of 10 percent, but no higher, for right knee strain, stress fracture, instability, is granted. An initial disability rating of 10 percent, but no higher, for left knee strain, stress fracture, instability, is granted. FINDINGS OF FACT 1. The Veteran has a permanent and total service-connected disability due to the loss or loss of use of both lower extremities which so affect the functions of balance or propulsion as to preclude locomotion without the aid of a walker or wheelchair. 2. For the entire appeal period, the Veteran's right knee limitation of flexion has at its most severe, manifested in flexion limited to 40 degrees. 3. For the entire appeal period, the Veteran's left knee limitation of flexion has at its most severe, manifested in flexion limited to 40 degrees. 4. For the entire appeal period, the Veteran's right knee limitation of extension has at its most severe, manifested in extension limited to 15 degrees. 5. For the entire appeal period, the Veteran's left knee limitation of extension has at its most severe, manifested in extension limited to 15 degrees. 6. Resolving doubt in the Veteran's favor, her right knee has shown slight recurrent instability for the entire appeal period. Even at its most severe, it has not required surgical repair and has not produced moderate impairment. 7. Resolving doubt in the Veteran's favor, her left knee has shown slight recurrent instability for the entire appeal period. Even at its most severe, it has not required surgical repair and has not produced moderate impairment CONCLUSIONS OF LAW 1. The criteria for eligibility for assistance in acquiring specially adapted housing have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The criteria for a disability rating higher than 10 percent rating for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for a disability rating higher than 10 percent rating for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for a disability rating higher than 20 percent for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5261. 5. The criteria for a disability rating higher than 20 percent for left knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5261. 6. The criteria for a separate disability rating evaluated at 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5257. 7. The criteria for a separate disability rating evaluated at 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to June 1986. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this appeal in November 2018 and August 2021. At the outset, the Board acknowledges the contentions made by the Veteran in an April 2022 statement. She expressed her frustration that "y'all said I withdrew my claim for high blood pressure" and asserted she did not withdraw the appeal. The Board would like to explain that the November 2018 Board remand did not find that the Veteran withdrew the appeals for hypertension or bilateral carpal tunnel syndrome (CTS). Rather, the Board found that because they were not listed in the January 2015 VA Form 9, they were not perfected appeals to the Board. Thus, they were not withdrawn, but the appeals were administratively closed by the RO when a VA Form 9 for these issues was not received during the required time period. As such, these service connection claims did not reach appellate status before the Board. To the extent the Veteran still contends that these disabilities are related to service or any of her service-connected disabilities, she may file a supplemental claim. If the Veteran wishes to file a claim for hypertension and or CTS, she is encouraged to do so using the prescribed form which is available at the local Regional Office or online (https://www.ebenefits.va.gov/ebenefits/). A claim of entitlement to special monthly compensation (SMC) based on aid and attendance is still on appeal, but as this issue is in the Appeals Modernization Act (AMA) docket, this claim will be addressed separately in an opinion consistent with the AMA framework. Special Adapted Housing 1. Eligibility for assistance in acquiring specially adapted housing is granted. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability. This permanent and total service-connected disability must either be amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017 or must be due to: (1) the loss or loss of use of both lower extremities, such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The phrase "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). The United States Court of Appeals for Veterans Claims (Court) has determined that the term "loss of use" in the context of specially adapted housing claims means "a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances. Adjacent modifiers and, in the case of [special monthly compensation], regulatory efforts create that specificity." Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court in Jensen dismissed the concern that "'every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive' [specially adapted housing]" Id. at 15. Rather, it lays out four elements that must be satisfied to establish entitlement to such benefit: "That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard." Id. at 15-16. The Veteran contends that she is entitled to a specially adapted housing grant due to her service-connected disabilities. She described being housebound in a wheelchair. She stated that she is applying for such grant to enable her to remodel her home so that she can try to have a better quality of life. She contends that she has loss of use of her legs due to her service-connected injuries and back surgeries. See March 2011 Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant. The Veteran is service connected for the following disabilities: degenerative disc disease, degenerative joint disease, lumbar spine, lumbosacral strain rated at 60 percent, degenerative arthritis of the cervical spine rated at 20 percent, left knee strain (limitation of extension) rated at 20 percent, right knee strain (limitation of extension) rated at 20 percent, left knee strain (limitation of flexion) rated at 10 percent, right knee strain (limitation of flexion) rated at 10 percent, radiculopathy of the left upper extremity rated at 20 percent, radiculopathy of the right upper extremity rated at 20 percent, radiculopathy of the right lower extremity rated at 20 percent, radiculopathy of the left lower extremity rated at 10 percent, and posterior trunk scar status post intervertebral fusion rated as noncompensable. She is also in receipt of S-1 special monthly compensation and total disability rating based on individual unemployability (TDIU). Also, the Veteran has been awarded a permanent and total rating (Basic Eligibility under 38 USC Chapter 35) due to her service-connected disabilities, effective from August 23, 2000. There is no question she is severely disabled due to her service-connected disabilities. A July 2011 private treatment record illustrates that the Veteran presented to the appointment for treatment related to her low back disability in a wheelchair and assisted by a family member. An October 2011 private evaluation describes the severe impact the Veteran's knee and back disabilities have on her ability to ambulate. The examiner stated, "the patient is unable to ambulate further than a few steps without the assistance or the use of a walker." The examiner went on to state, "patient has lateral instability and is unable to properly ambulate", and that she has "loss range of motion bilaterally with complete immobility of the right." The examiner noted that the Veteran was examined from a seated position in a wheelchair because she was unable to get onto the exam table. The examiner opined that the Veteran's service-connected disabilities to include her "radiculopathy bilaterally are causing the bilateral loss of use of her lower legs." Towards the end of the 5-page evaluation, the examiner stated that the Veteran is wheelchair bound and needs the wheelchair to move around. An October 2014 private clinical treatment record illustrates that the Veteran has limited ability to be ambulatory and that her obesity and chronic pain are contributing factors to her hypertension due to lack of mobility. A March 2017 private summary of medical history was prepared, and the examiner highlighted the October 2000 VA examiner's assessment that the Veteran had loss of use of right leg from the knee to her foot. The Veteran submitted medical treatment office notes dated June 2018. These notes illustrate that as a result of the severe pain from her right knee disabilities to include her radiculopathy, there was an incident where she fell as she attempted to walk without a walker, and that she presented to an appointment in a wheelchair. During the November 2019 VA aid and attendance or housebound examination, the examiner noted that the Veteran's imbalance affects her ability to ambulate constantly. The examiner concluded that the Veteran requires a walker for ambulation. He stated that she is not totally wheelchair dependent, and she can walk around her house her walker, but does require a wheelchair if she has to walk significant distances. The December 2019 VA Back Conditions Disability Benefits Questionnaire (DBQ) illustrates that the Veteran uses a wheelchair constantly. The January 2022 VA Knee and Lower Leg Conditions DBQ describes the use of assistive devices as regular for a brace, constant for a walker, and regular for a wheelchair. The evidence indicates that the Veteran is not able to ambulate without the assistance of a walker or wheelchair due to symptoms from her service-connected radiculopathy of the bilateral lower extremities, bilateral knee disabilities and low back disability. Therefore, resolving all doubt in the Veteran's favor, the Board concludes that the Veteran has a permanent and total service-connected disability due to the loss or loss of use of both lower extremities, such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair. She is therefore eligible for assistance in acquiring specially adapted housing per 38 U.S.C. § 2101 and 38 C.F.R. § 3.809; and award of the benefit sought is warranted. 2. An initial disability rating higher than 10 percent for right knee strain, stress fracture, limitation of flexion, is denied. 3. An initial disability rating higher than 10 percent for left knee strain, stress fracture, limitation of flexion, is denied. 4. An initial disability rating higher than 20 percent for right knee strain, stress fracture, limitation of extension, is denied. 5. An initial disability rating higher than 20 percent for left knee strain, stress fracture, limitation of extension, is denied. 6. An initial disability rating of 10 percent, but no higher, for right knee strain, stress fracture, instability, is granted. 7. An initial disability rating of 10 percent, but no higher, for left knee strain, stress fracture, instability, is granted. Legal Criteria The Veteran is rated separately for right knee limitation of flexion, left knee limitation of flexion, right knee limitation of extension, and left knee limitation of extension. The Veteran's right knee limitation of flexion, and left knee limitation of flexion are rated as 10 percent disabling under Diagnostic Code 5260. Her right knee limitation of extension, and left knee limitation of extension are rated as 20 percent disabling under Diagnostic Code 5261. Among other rating criteria, VA's rating schedule includes eight diagnostic codes applicable to evaluating knee and leg disabilities and several diagnostic codes related to arthritis of the musculoskeletal system. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263, 5010, and 5003. During the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5257 VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria as of February 7, 2021. With respect to the applicable Diagnostic Codes to the Veteran's knee disabilities, Diagnostic Codes 5003, 5010, and 5257 were revised, not materially, and will be discussed below. Diagnostic Codes 5260 and 5261 were not revised and will be noted immediately below. Under Diagnostic Code 5260, limitation of flexion of the leg warrants a noncompensable evaluation when flexion is limited to 60 degrees; a 10 percent evaluation when limited to 45 degrees; a 20 percent evaluation when limited to 30 degrees; and a 30 percent evaluation when limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a noncompensable evaluation when extension is limited to 5 degrees; a 10 percent evaluation when limited to 10 degrees; a 20 percent evaluation when limited to 15 degrees; a 30 percent evaluation when limited to 20 degrees; a 40 percent evaluation when limited to 30 degrees; and a 50 percent evaluation when limited to 45 degrees. For VA compensation purposes, the normal range of motion of the knee is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Criteria effective prior to the February 7, 2021 revision Diagnostic Codes 5003 and 5010 pertains to arthritis. Under Diagnostic Code 5003, the knee disability may be rated under provisions for evaluating arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Diagnostic Code 5010 refers to arthritis due to trauma, substantiated by x-ray findings. The code directs that traumatic arthritis be rated as degenerative arthritis (Diagnostic Code 5003). Id. Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling. The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Criteria effective from February 7, 2021 Diagnostic Code 5003 was revised to make clear that this code only applies to degenerative arthritis and not to post-traumatic arthritis. The 10 percent rating for non-compensable limitation of motion has now been removed. Diagnostic Code 5010 was revised to refer to post-traumatic arthritis and the instruction to rate as degenerative arthritis under 5003 was removed. Traumatic arthritis is now rated as "limitation of motion, dislocation, or other specified instability under the affected joint." Diagnostic Code 5257 was revised to remove the terms "severe", "moderate", and "slight" for recurrent subluxation or lateral instability. The revision also adds rating for patellar instability. The revision also includes the language below. Recurrent subluxation or instability: 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 warrants a 30 percent rating. 20 percent rating 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. (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. 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Patellar instability: A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted 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 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 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 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). Evidence The Board acknowledges that there are two VA addendum opinions, dated February 2022 and March 2022. As these opinions do not provide information relevant to the symptoms under the rating criteria for the knees, these reports will not be discussed. During an October 2011 private examination of the Veteran's knees, the examiner noted, "patient has lateral instability" and is unable to properly ambulate. The examiner also noted that the Veteran had severe stiffness and swelling, valgus deformities, and loss of range of motion bilaterally with complete immobility of the right. The examiner stated that over time with osteoarthrosis setting in it is only a matter of time before the knee starts to become stiff, locking up, grinding or giving out with swelling and stiffness and severe pain. The examiner concluded that she/he was unable to perform flexion of the knees, legs, due to pain and swelling. During the December 2019 VA examination of the knees, the examiner noted 1986 diagnoses of stress fracture of the tibia, 2019 diagnoses of degenerative arthritis of both knees. The Veteran reported pain in both knees, with more pain in the right and more pain upon walking. She reported not having surgery on either knee. She stated, "I've really quit doing everything. I rely on my sister and niece for everything. I can only get on the porch if I'm in my wheelchair." She denied flare-ups but described functional loss/impairment as knees hurting with walking, right more than left. Initial range of motion (ROM) testing revealed right knee flexion from 0 to 80 degrees, extension from 80 to 0 degrees. Pain was noted during the examination, and it caused functional loss. The ROM was described as abnormal and explained as must get help with dressing. The ROM that exhibited pain on exam was at flexion. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue of the right knee. The location, severity, and relationship to the condition was stated as tender joint lines. There was no objective evidence of crepitus. Initial ROM testing revealed left knee flexion from 0 to 90 degrees, extension from 90 to 0 degrees. There was no pain noted during the examination. The ROM was described as abnormal and explained as must get help with dressing. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue of the left knee or objective evidence of crepitus. The Veteran could not perform repetitive use testing with at least three repetitions of her right knee, as she stated her knee was too weak and painful. She could perform repetitive use testing of the left knee with at least three repetitions, with no additional loss of function or range of motion was noted. She was not being examined immediately after repetitive use over time of the right knee. Weakness and lack of endurance are the factors that caused this functional loss. The examiner could not describe the functional loss in terms of ROM as the Veteran declined to do even minimal ROM active and complained of pain when put through passive ROM at flexion and extension. She was not being examined immediately after repetitive use over time of the left knee. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There were no additional contributing factors indicated for either knee. There was reduction in muscle strength of the right knee, 4/5 of flexion and extension. The examiner concluded that the reduction in strength was not due to the right knee, but to the Veteran's low back disability. There was no reduction in muscle strength of the left knee. There was no muscle atrophy or ankylosis of either knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion of either knee. Joint stability testing was not performed. The Veteran did not then have, nor had she ever had, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment, or a meniscus condition. Constant use of a wheelchair was noted. Imaging studies have been performed and documented degenerative or traumatic arthritis of both knees. The abnormal findings were described as "mild medial tibfib oa bilaterally." Impact on occupational tasks was described as pain in knees with walking any distance. There is evidence of pain on passive ROM testing and evidence of pain when the joint is used in non-weight bearing. The examiner stated that the opposing joint is undamaged. During a January 2022 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) the examiner noted 1956 diagnoses of stress fracture of tibia, knee strain, shin splints, 2003 diagnoses of joint knee osteoarthritis, 2019 diagnoses of degenerative arthritis, and a new January 2022 diagnoses of tendinitis. The Veteran described her current symptoms as chronic constant bone pain to the anterior bilateral shin with a heaviness feeling, as well as chronic constant aching bilateral knee pain, and described as feeling like bone on nerve pain with electric shooting pain down her bilateral lower extremity. The reported flare-ups were described as occurring daily to every other day, lasting hours, throbbing pulsing pain to knee, sharp pain, swelling, and severe. Functional impairment was described as increased sleep disturbances, swelling of knee so bad that it causes decreased ROM of knee for flexion. Functional loss/functional impairment was described as decreased endurance for prolonged sitting, walking, and standing. It was also described as sleep disturbance due to bilateral knee shin pain, difficulty using stairs, often cannot ascend stairs, reduced speed of ambulation, and required use of a walker and or wheelchair. The Veteran reported instability/recurrent subluxation. She stated that her knees give out all the time and just "buckle." She reported or has a history of frequent effusion of both knees, described as swelling of the knees near daily and it can get so bad, she has trouble bending her knees. Initial ROM was described as abnormal for both knees. The ROM contributed to functional loss, described as decreased ROM due to knee pain would limit ability to sit/stand/walk for extended time, decreased speed of ambulation, unable to use the stairs, and altered ability to sit in chair with a 90-degree knee flexion. Active ROM of the right and of the left knee were 50 degrees at flexion and 10 degrees at extension. Pain was noted during the examination, at flexion and extension of both knees. Grimacing, wincing, moaning, guarding, weakness, increased respirations were the factors identified. There was evidence of pain with weight bearing, non-weight bearing, active motion, on rest/non-movement of right and of the left knee. The pain caused functional loss and was described as decreased ROM due to real or anticipated pain. There was objective evidence of crepitus and objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue of the right knee and of the left knee. The location, severity, and relationship to the condition was described as "ttp." The location was stated as anterior medial and lateral patellar region, patellar tendon, and medial joint line. The severity was described as wincing, pulling away, grimacing, and guarding. The Veteran could perform repetitive use testing with at least three repetitions on both knees, with no additional loss of function or range of motion. She was not examined immediately after repetitive use over time. Evidence from the Veteran suggested functional loss and flare-ups, and the factors that caused such were pain, fatigability, weakness, and lack of endurance. This functional loss and flare-ups were described in terms of ROM. The functional loss ROM was 45 degrees at flexion and 15 degrees at extension of both the right knee and the left knee. The ROM during flare ups was 40 degrees at flexion and 15 degrees at extension of both the right knee and the left knee. Additional factors contributing to the disabilities of the right knee and left knee were stated as interference with standing, disturbance of locomotion, less movement than normal, weakened movement, interference with sitting, and swelling. Less movement than normal was described as less movement of the knee joint due to pain or anticipated pain. Weakened movement was described as likely due to generalized pain, veteran has other comorbid conditions which induce pain which causes her tolerance for bilateral knee pain to decrease. Swelling was described effusion to the right knee noted on exam and seems to contribute to discomfort with extension and flexion of knee due to grimacing and wincing and localized tenderness to palpation of the effusion at the anterior generalized knee worse at the anterior patellar region at the medial and lateral aspects. Disturbance of locomotion was described as history spinal conditions and radiculopathy which impacts gait, speed, and contributes to nerve pain throughout the lower extremities. Interference with sitting was described as unable to flex knee to a 90-degree angle. Interference with standing was described as shin and knee pain with weight bearing (shin pain: subjective claim, no "ttp" on examination). There was no muscle atrophy, ankylosis, recurrent subluxation or persistent instability, or ligament tear (sprain) of either knee. The section requesting whether the Veteran's knee disabilities required a prescription by a medical provider for any assistive device for ambulation is blank. Stress fracture was shown in both knees and was described as pain of bilateral anterior medial and lateral shins with standing and cramping of associated "tib/fib musculoskeletal region spontaneously. Bone scan 1986 bilateral lower extremities abnormal and bone scan repeated in 1987: resolved." Shin splints were indicated in both knees and the treatment/symptoms were described as unresponsive to shoe orthotics or other conservative treatment. The Veteran has not then nor ever has been diagnosed with meniscus condition. She has not had surgery on either knee. The examiner noted that radiculopathy of the bilateral lower extremity contributes to falls. Imaging studies were not performed in conjunction with this examination. The examiner provided additional notation in the remarks section. Passive ROM was not performed on either knee. Passive ROM is medically contraindicated as it may cause the Veteran severe pain or risk of further injury. It is not medically advisable to conduct passive ROM because the Veteran stated that she was unable to climb the step stool to sit on the exam able to do the exam and refused. The exam was done while sitting in an office chair to the best of their ability. She could hardly do active ROM and passive ROM was attempted; however, she could not tolerate passive manipulation of the knee due to pain. The examiner stated, "I was unable to measure the attempted passive ROM. PROM stopped to avoid injury or cause additional pain." The examiner also stated that joint stability testing was not performed as the Veteran was unable to tolerate due to pain, and so it was avoided to maintain patient safety and the examiner advised her to seek medical evaluation of the knee. Analysis The Board acknowledges that the Veteran is separately rated for radiculopathy of her bilateral lower extremities. However, as that is separate and distinct from the bilateral knee disabilities on appeal these are not part of the appeal and will not be discussed. Also, of note, there is nothing to indicate a worsening of symptoms of the radiculopathy and the Veteran has not made such contentions. The issues before the Board are whether ratings higher than 10 percent are warranted for right knee-flexion and left knee-flexion, and whether ratings higher than 20 percent are warranted for right knee-extension and left knee-extension, as of March 2011 (the date the claim for service connection was filed). Additionally, as the record shows instability of both knees, the Board must also consider whether separate ratings for instability of the knees are warranted at any time during the appeal period. Upon review of the record, the Board finds that the currently assigned ratings for the right knee and left knee disabilities are proper and therefore higher ratings are not warranted, for the flexion or extension disabilities. However, as will be described below the Board finds that separate, compensable ratings for instability of the right and left knee disabilities are warranted. Analysisright knee and left knee limitation of flexion The currently assigned 10 percent disability ratings for the right knee and the left knee (flexion) are warranted as the record shows flexion to 40 degrees and includes consideration of functional loss due to painful motion under 38 C.F.R.§ 4.59. A higher rating of 20 percent rating is not warranted as the Veteran's flexion, at its most severe, was 40 degrees for both knees. Even after repetitive testing and accounting for flare-ups, the estimated ROM provided by the January 2022 VA examiner was 40 degrees for both knees. Throughout the appeal period she has consistently reported and shown objective pain on movement. The examinations of record consistently described the ROM of the knees as abnormal and noted the reported pain at flexion. It also shows flexion, at its most severe at 40 degrees. These symptoms are all consistent with the currently assigned 10 percent disability ratings. The probative evidence of record does not indicate a rating higher than 10 percent under Diagnostic Code 5260, as flexion is not limited to 30 degrees. The Board recognizes that the January 2022 VA examiner provided estimations of ROM of 45 at flexion and 40 at flexion to account for functional loss and flare-ups. However, these estimated ROMs only support a rating of 10 percent, the currently assigned rating. As such, higher ratings of 20 percent are not warranted at any time during the appeal period for the flexion disabilities of the right knee or of the left knee. The evidence shows reduced range of motion, flexion, of the Veteran's right knee and left knee, but the record does not support a finding of a rating higher than 10 percent, as the totality of the probative evidence does not illustrate flexion limited to 30 degrees. In the March 2022 rating decision, the RO granted 10 percent evaluations for the right knee and the left knee based on painful motion under Diagnostic Code 5260 (flexion) as described in 38 C.F.R. § 4.59. In the April 2022 rating decision, the RO continued the 10 percent evaluations for the right knee and the left knee based on limitation of flexion of 31 to 45 degrees under Diagnostic Code 5260 (flexion). Although the Veteran has consistently reported pain in her knees and the record illustrates how impactful her knees are in her ability to ambulate, flexion, at its most severe is the estimated flexion of 40 degrees as reflected in the January 2022 VA examination report. The evidence shows flexion limited to 31 to 45 degrees as contemplated by the 10 percent evaluation currently assigned. With respect to disabilities of the knee, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 (ankylosis), 5258 (dislocated cartilage), 5259 (removal of cartilage), 5262 (impairment of tibia or fibula), and 5263 (genu recurvatum) are not applicable, as the record does not indicate a diagnosis of ankylosis, a cartilage condition, a tibia impairment, a fibula impairment or genu recurvatum at any time during the appeal period. The Board acknowledges that the record illustrates diagnoses of degenerative arthritis of both knees and as no medical professional has separate these symptoms from those attributed to the service-connected disability, the Board considers all the symptoms to be attributable to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam)("when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. 61 Fed. Reg. 52698 (Oct. 8, 1996)."). However, as the Veteran has compensable ratings for her knees, separate ratings for arthritis for the knees are not permitted as it would constitute impermissible pyramiding. 38 C.F.R. 4.14. Additionally, a rating under Diagnostic Codes 5003 or 5010 would only provide a 10 percent rating, the currently assigned ratings. In arriving at this conclusion, the Board has carefully considered the Veteran's lay assertions, including reports of flare-ups. Even during flare-ups and considering pain, the VA examinations, VA treatment records, and private examination do not show functional loss warranting a rating higher than 10 percent. The Board is sympathetic to her pain, and although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell, 25 Vet. App. 32. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Mitchell, DeLuca, and §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). The current evaluations of 10 percent incorporate consideration of the Veteran's statements regarding pain combined with a slightly reduced range of motion and functional impairment caused by flare-ups. As such, ratings higher than 10 percent are not warranted for limitation of flexion for the right knee or left knee. As the persuasive evidence is against the claims for increased disability ratings higher than 10 percent for the Veteran's right knee and left knee flexion disabilities, the benefit of the doubt doctrine is not applicable. As such, the claims are denied. Separate ratings under other applicable diagnostic codes are assigned for the right knee and the left knee and will be discussed below. Analysisright knee and left knee limitation of extension In an April 2022 rating decision, the RO granted limitation of extension of the right knee and of the left knee, assigning disability ratings of 20 percent. The RO noted the findings in the January 2022 VA examination as to why 20 percent was granted, and assigned an effective date of March 2011, the date the claim was filed. The January 2022 VA examination shows limitation of extension of the right knee and of the left knee 15 to 19 degrees. As such the currently assigned 20 percent ratings are warranted. The 20 percent ratings are warranted as the evidence shows extension limited to 15 degrees. Higher ratings of 30 percent are not warranted as there is no limitation of extension limited to 20 degrees. As explained above, Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not applicable. As the persuasive evidence is against the claims for increased disability ratings higher than 20 percent for the Veteran's right knee or left knee extension disabilities, the benefit of the doubt doctrine is not applicable. As such, the claims are denied. Analysisright knee and left knee instability A review of the record illustrates that the earliest dated probative record to show compensable rating under Diagnostic Code 5257 is the date of the private evaluation, October 2011. The Board recognizes that the December 2019 VA examiner concluded that there was no history of recurrent subluxation, lateral instability, or recurrent effusion of either knee and that the January 2022 VA examiner concluded that there is no persistent instability, or ligament tear (sprain) of either knee. Despite this, and in favor of the Veteran, the Board finds that the Veteran's service-connected right knee and left knee disabilities include diagnoses of lateral instability prior to February 2021 and diagnoses of patellar instability thereafter. Additionally, the Veteran reported that her knees give out all the time and just buckle during the January 2022 VA examination. Although the October 2011 private evaluation is the earliest record to illustrate lateral instability, as the examination was submitted in connection with the claim, and resolving reasonable doubt in favor to the Veteran, the Board finds that separate ratings for instability of the right knee and instability of the left knee are warranted as of March 2011, the date the claim was filed. Under the old regulations, the evidence prior to February 7, 2021 does not show moderate impairment to warrant a 20 percent rating. The October 2011 private examiner diagnosed lateral instability but did not provide much information regarding the severity of the instability in either knee. The examiner noted that the Veteran is unable to properly ambulate. Of note, giving out and locking up of the knees did not appear to be symptoms at the time of the exam, as the examiner described that those symptoms would likely occur in the future. The December 2019 VA examination report does not show instability, nor does it indicate any reported symptoms by the Veteran of symptoms related to instability. As such, the Board finds that the record, prior to the February 7, 2021 revision, more nearly approximates slight impairment of the instability of the right knee and left knee, consistent with a 10 percent rating. There is no probative evidence of record indicating moderate impairment. Therefore, 10 percent ratings are warranted as of March 2011 for instability of the right knee and of the left knee. As of the February 7, 2021 revision, the Board must apply both the old and new regulations and apply the most favorable criteria to the Veteran. The Board finds that under both the old and new regulations, a 10 percent rating is warranted From February 7, 2021, there is no evidence indicating more than slight impairment due to instability or subluxation under the old regulation. While the Veteran reports her knee buckling and giving out in January 2022, the objective medical examination and testing revealed no ligament tear or sprain, or persistent instability. While the Veteran's report of bucking and giving out is credible, she is service-connected for multiple disabilities of the lower extremities and does not have the medical training to give a competent opinion that this is due to ligament tear or subluxation. The examiner, on the other hand, is competent to diagnosis ligament tear and instability. The Board assigns more probative weight to the medical opinion on this question. The most probative evidence therefore persuasively weighs against finding moderate instability warranting a 20 percent rating under the old regulations. Under the new regulation, the higher 20 percent rating requires "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." The Veteran has not had a surgical repair to either knee. Therefore, the criteria for the 20 percent rating are not met under DC 5257 for either knee under the amended regulations. Conclusion (Continued on the next page) The Board grants entitlement to a 10 percent rating under DC 5257 for the left knee and a 10 percent rating under DC 5257 for the right knee. Higher ratings under all other DCs pertaining to the knees are denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.