Citation Nr: A25035250 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240724-456911 DATE: April 16, 2025 ORDER Entitlement to a disability rating of 20 percent for left ankle status post fracture with degenerative arthritis is granted. Entitlement to a disability rating of 30 percent, but no higher, for bilateral foot pes planus with hallux rigidus status post foot strain is granted. Entitlement to a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's left ankle status post fracture with degenerative arthritis has been manifested by loss limited function most nearly approximating marked limitation of motion during flare-ups, with no ankylosis. 2. Throughout the rating period on appeal, the Veteran's bilateral foot pes planus with hallux rigidus status post foot strain has been manifested by marked deformity without extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation and without severe hallux rigidus. 3. Throughout the rating period on appeal, the Veteran's right knee meniscal tear with degenerative arthritis has been manifested by noncompensable limitation of flexion with pain and functional impairment with normal extension and without instability, subluxation, ankylosis, and locking. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria for a disability rating of 20 percent, but no higher, for left ankle status post fracture with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 3.102, 3.159, Part 4, including § 4.7 and Diagnostic Code 5271. 2. Throughout the rating period on appeal, the criteria for a disability rating of 30 percent, but no higher, for bilateral foot pes planus with hallux rigidus status post foot strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5280, 5281. 3. Throughout the rating period on appeal, the criteria for a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 2023 rating decision, a 10 percent disability rating was assigned for left ankle status post fracture with degenerative arthritis effective June 29, 2023; a disability rating in excess of 10 percent for bilateral foot pes planus with hallux rigidus status post foot strain was denied; and a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis was denied. In July 2024, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected a Hearing with a Veterans Law Judge. In August 2024, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket, effectively changing his docket selection. Therefore, the Board may only consider the evidence of record at the time of the October 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Finally, the Board notes that in his August 2024 VA Form 10182, the Veteran also listed issues including the left elbow and "painful joints", which he noted as including his shoulders, that had been denied in an April 2019 rating decision. The notice of disagreement is not timely as to such issues and they are not in appellate status at this time. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an "opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran's contentions and C&P examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Left ankle The Veteran's left ankle is rated 10 percent disabling per Diagnostic Code 5271. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 38 C.F.R. § 4.71a. Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date of change and apply the version most favorable to the Veteran. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Throughout the rating period on appeal, the Veteran's left ankle disability has not been manifested by ankylosis of the ankle; or tarsal joint ankylosis; os calcis or astragalus malunion; or astragalectomy. Therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. 38 C.F.R. § 4.71a. Based on the evidence of record, as discussed below, the Board has determined that when considering additional functional loss during flare-ups, the Veteran's disability picture most nearly approximates a 20 percent rating throughout the appeal period. In an April 2019 rating decision, service connection was granted for left ankle status post fracture with degenerative arthritis and a noncompensable disability rating was assigned effective May 18, 2018. In June 2023, the Veteran filed an increased rating claim. In July 2023, the Veteran underwent a C&P examination wherein the examiner diagnosed left ankle fracture with degenerative arthritis. The Veteran reported occasional pain. He treated with Diclofenac 75 milligrams as needed. With regard to flare-ups of the left ankle, he reported flare-ups 3 times a week. The left ankle flare-ups were moderate and last a day, worse when cold. The left ankle flare-ups were precipitated by activity and cold weather. The left ankle flare-ups were alleviated by rest and medication. He denied any instability of the left ankle. Plantar flexion was to 40 degrees, and dorsiflexion was to 10 degrees with pain. Passive and active range of motion were the same. There was pain with weight-bearing, active motion, and passive motion which did not result in/cause functional loss. There was no crepitus and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no change on repetitive motion testing. Pain significantly limited functional ability with repeated use over time, resulting in plantar flexion to 40 degrees and dorsiflexion to 10 degrees. Pain and lack of endurance significantly limits functional ability with flare-ups resulting in plantar flexion to 35 degrees and dorsiflexion to 5 degrees. Additional factors contributing to disability include interference with standing, disturbance of locomotion, and swelling. The Veteran reported having to take breaks while standing/walking and could not perform prolonged standing/walking due to left ankle status post fracture with degenerative arthritis. There was no muscle atrophy. There was no ankylosis. Anterior drawer test and Talar tilt test were negative. He did not use any assistive devices. The 10 percent rating in effect pursuant to Diagnostic Code 5271 compensates the Veteran for moderate symptomatology associated with his left ankle to include pain and limitation of motion during flare-ups. The Board has considered assigning a 20 percent rating per Diagnostic Code 5271 for marked limitation of motion. A 20 percent disability rating per Diagnostic Code 5271 is not warranted as marked limitation of motion of the ankle, as defined under the revised Diagnostic Code 5271, has not been shown. As detailed, dorsiflexion was to 10 degrees, reduced to 5 degrees during flare-ups, and plantar flexion was to 40 degrees, reduced to 35 degrees during flare-ups. Per Diagnostic Code 5271, limitation of dorsiflexion to less than 5 degrees is characterized as marked limitation of motion. The findings of examination show dorsiflexion to exactly 5 degrees during flare-ups; however, given that the finding is an estimate, and in consideration of the Veteran's complaints of pain, the Board resolves doubt and concludes that, at its worst during periods of flare-up, the left ankle symptoms rise to the level of marked disability. Again, no other diagnostic codes are applicable in this case; thus, there is no basis for a rating in excess of 20 percent. In sum, affording the benefit of the doubt, a 20 percent rating, but no higher, is deemed warranted for the Veteran's left ankle status post fracture with degenerative arthritis. Bilateral foot The Veteran's bilateral foot pes planus with hallux rigidus status post foot strain is rated 10 percent disabling per 38 C.F.R. § 4.71a, Diagnostic Code 5276. In June 2023, he filed an increased rating claim. Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 0 percent disability rating is assigned for pes planus (flat foot acquired) mild symptoms relieved by built-up shoe or arch support; a 10 percent disability rating is assigned for pes planus, regardless of whether the condition is unilateral or bilateral, where there is evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet; a 20 percent disability rating for unilateral pes planus or a 30 percent disability rating for bilateral pes planus is assigned where there is a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, characteristic callosities; a 30 percent disability rating for unilateral pes planus or a 50 percent disability rating for bilateral pes planus requires a pronounced condition manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Per Diagnostic Code 5281, hallux rigidus, unilateral, severe is to be rated as hallux valgus, severe. Under Diagnostic Code 5280, a 10 percent disability rating is warranted for unilateral hallux valgus, if severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5281. A July 2023 C&P examination reflects diagnoses of bilateral pes planus and bilateral hallux rigidus. The Veteran reported extreme pain which would often wake him up from sleep. He denied current treatment or medications. He reported a 50 percent reduced capacity in work ability and mood swings. He denied flare-ups of the feet. With regard to functional impairment, he reported that increased activities cause more pain. With regard to pain on use of the feet, this affects both sides with no pain accentuated on use. He had no pain on manipulation of the feet. There was no indication of swelling on use. He did not have characteristic calluses. He did not use arch supports. He did not have extreme tenderness of plantar surfaces on one or both feet. He had decreased longitudinal arch height of both feet on weight-bearing. There was objective evidence of marked deformity of both feet. There was marked pronation of both feet; he did not use orthopedic shoes or appliances. The weight-bearing line was not over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was no inward bowing of the Achilles' tendon of the feet. He did not have marked inward displacement nor severe spasm of the Achilles' tendon on manipulation of the feet. With regard to hallux rigidus, he had mild or moderate symptoms of both feet, specifically tender to palpation to dorsal aspect bilateral great toe MTP joints. He had pain on physical exam with disturbance of locomotion and interference with standing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups and/or after repeated use over time. The examiner commented that more activities cause more pain. There was pain with active motion and weight-bearing, specifically facial expression/wincing upon movement. He did not use any assistive devices. Based on the Veteran's complaints and objective findings pertaining to his feet documented in the C&P examination report, the Board finds that a 30 percent disability rating is warranted per Diagnostic Code 5276. A 30 percent disability rating is warranted based on the objective findings of marked deformity, thus the Board finds that the Veteran's bilateral flatfoot is considered severe. The Board acknowledges that there were no objective findings of pain on manipulation and use accentuated, indications of swelling on use, or characteristic callosities. However, in light of the findings of marked deformity with marked pronation of the feet causing alteration of the weight-bearing line and affording the Veteran the benefit of the doubt the Board finds that a 30 percent disability rating is warranted. However, the next-higher 50 percent rating is not warranted per Diagnostic Code 5276. While there were objective findings of marked pronation, there was no extreme tenderness of the plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendon Achilles on manipulation. The Board finds that the Veteran's bilateral plantar fasciitis most closely approximates the criteria for a 30 percent rating. The Board has considered the diagnostic criteria for hallux rigidus/hallux, but there were no objective findings of severe, equivalent to amputation of the great toe. As detailed, the examiner determined that he had mild or moderate symptoms of both feet, specifically tender to palpation to dorsal aspect bilateral great toe MTP joints. Thus, a separate 10 percent disability rating is not warranted in contemplation of the symptomatology from his hallux rigidus. The Board also considered whether the Veteran's disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to bilateral weak foot, claw feet (pes cavus), metatarsalgia, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones under Diagnostic Codes 5277, 5278, 5279, 5282, 5283, respectively are not applicable. Pes cavus, metatarsalgia, bilateral weak foot, and hammer toe have not been diagnosed. The Board has considered Diagnostic Code 5284; however, the highest assignable rating is 30 percent, which is already in effect. The 30 percent rating in effect per Diagnostic Code 5276 also contemplates his plantar fasciitis symptomatology. While the Veteran has complained that more activities cause more pain, the Board finds that his symptoms and any functional limitations are contemplated by the 30 percent rating being awarded. In this regard, the record reflects that the Veteran has functional limitations with standing and walking, and the 30 percent rating in effect contemplates associated symptomatology. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Right knee Service connection is in effect for right knee meniscal tear with degenerative arthritis, rated 10 percent disabling, pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5003 (degenerative arthritis). In June 2023, the Veteran filed an increased rating claim. Disability ratings for the knee encompass multiple diagnostic codes and it is possible to be rated for more than one manifestation of disability in the knee. In addition, because knees are part of the musculoskeletal system, when the criteria for compensable ratings are not met based on limitation of motion, a 10 percent disability rating is possible based on painful motion under Diagnostic Codes 5003 and 5010 for arthritis. 38 C.F.R. § 4.71a. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension). Separate ratings may be assigned for limitation of flexion and extension. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, extension limited to 20 degrees is 30 percent disabling, extension limited to 30 degrees is 40 percent disabling, and extension limited to 45 degrees is 50 percent disabling. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 2004). 38 C.F.R. § 4.71a, Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is 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 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a 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). Pursuant to Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain" and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Other potentially applicable rating codes for knee disabilities include Diagnostic Codes 5256 (ankylosis) and 5263 (genu recurvatum). In this instance, the Veteran has not been diagnosed with ankylosis (loss of motion) in the knee nor genu recurvatum. Therefore, these diagnostic codes are not applicable and will not be addressed further. Diagnostic Code 5262 pertains to impairment of tibia and fibula, which also has not been diagnosed. Thus, this diagnostic code is inapplicable and will not be addressed further. A July 2023 C&P examination reflects a diagnosis of right knee meniscal tear and degenerative arthritis. He reported intermittent extreme sharp pain, worse over time. He took Diclofenac 75 milligrams twice a day. His knee has a serious impact on his mobility and mood. With regard to flare-ups of the right knee, they occurred 2-3 times a week. The right knee flare-ups were severe and would last a day. They were precipitated by standing, walking, climbing chairs, and physical activity. The flare-ups were alleviated by sleep. With regard to functional impairment, he reported difficulty standing, walking, climbing chairs, and physical activity. He denied any history of instability or recurrent subluxation. He also denied history of frequent effusion. Objectively, flexion was to 120 degrees. Passive and active range of motion were the same. There was pain with weight-bearing, active motion, and passive motion which does not result in/cause functional loss. There was crepitus, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. On repetitive motion testing, there was no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time, resulting in flexion to 110 degrees with normal extension. Pain and lack of endurance significantly limited functional ability with flare-ups resulting in flexion to 100 degrees with normal extension. Additional factors contributing to disability included interference with standing and sitting, disturbance of locomotion, swelling, and deformity. The Veteran reported having to take breaks while sitting/standing/walking and cannot perform prolonged sitting/standing/walking due to right knee meniscal tear with degenerative arthritis. Examination also showed muscle atrophy, specifically 12 centimeters below the inferior patella. The circumference of the more normal side was 38 centimeters, and the atrophied side was 36 centimeters. There was no ankylosis. There was no recurrent subluxation, no persistent instability, and no recurrent patellar instability. With regard to his meniscus condition, he had meniscal tear, frequent episodes of pain, and frequent episodes of joint effusion. He had pain, stiffness, and lack of endurance. He underwent a meniscectomy and arthroscopic debridement in 2008, and residual symptoms include pain, stiffness, and lack of endurance. He occasionally uses a knee brace. After considering the above evidence, the Board finds that the 10 percent rating presently in effect for the right knee compensates the Veteran for his limitation of flexion. As detailed, the Veteran's limitation of flexion would warrant a noncompensable rating per Diagnostic Code 5260, but a 10 percent rating has been assigned in light of his degenerative arthritis with limitation of flexion and functional impairment. Based on the objective findings contained in the C&P examination report, such would not result in limitation of flexion to 30 degrees or less even in contemplation of functional limitations and during flare-ups. A higher evaluation based on limitation of flexion under the above cited rating code is therefore not warranted. A separate compensable rating for extension is not warranted as his extension has been normal on objective examination. The Board has considered assigning a higher rating per Diagnostic Code 5258 for dislocation of semilunar cartilage, but while the examiner found frequent episodes of joint effusion, there were no subjective complaints or objective findings of frequent episodes of locking. Thus, a higher rating per Diagnostic Code 5258 is not warranted. Separate disability ratings for instability or recurrent subluxation are also not warranted as there are no objective findings of instability or subluxation. As detailed above, the C&P evaluation was negative for any subluxation or instability. The examination was conducted by a competent medical professional who performed objective testing designed to measure any instability, subluxation, and locking, and normal findings were exhibited. Thus, a finding of chronic instability as a manifestation of the right knee disability is not warranted and a separate rating is not warranted per Diagnostic Code 5257 for any period contemplated by this appeal. (Continued on the next page) ? The findings above contemplate the Veteran's subjective complaints, as well as whether there is additional functional loss due to pain per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the 10 rating for the right knee pursuant to Diagnostic Code 5260. The examination report reflects the Veteran's complaints of pain and functional limitations. While acknowledging his functional limitations associated with his knee, the 10 percent rating for flexion, albeit with pain, compensates him for his symptomatology. 38 C.F.R. §§ 4.40, 4.45. The 10 percent rating in effect for limitation of motion symptomatology compensates him for limited and painful motion and assigning the next higher rating for painful motion would not accurately assess the resulting function loss, even when considering the pain. The 10 percent rating takes into consideration the Veteran's functional loss and flare-ups associated with his right knee. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher 20 percent evaluation. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kreindler, Marcy W. 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.