Citation Nr: 1801945 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 07-24 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for the service-connected right knee disability prior to August 29, 2005. 2. Entitlement to an evaluation in excess of 30 percent for the service-connected right knee disability from October 1, 2006, to May 6, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from September 1984 to January 1986. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from January 2005 and September 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The January 2005 decision denied an evaluation in excess of 20 percent for the service-connected right knee disability, and the September 2005 decision granted a 100 percent evaluation for the right knee disability from August 29, 2005, to October 1, 2006, and assigned a 30 percent evaluation from October 1, 2006. The Veteran appealed the underlying decisions in a Notice of Disagreement received in March 2005. In August 2008, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). In June 2010, she testified at a Travel Board hearing before another VLJ. Transcripts of both hearings are of record. Presently, neither the presiding VLJ from August 2008 or from June 2010 remains employed with the Board. In an October 2017 letter, the Board informed the Veteran that the VLJ whom presided at the June 2010 hearing was no longer employed by the Board and informed her of her options for another Board hearing. She was also informed that if she did not respond within 30 days from the date of the letter, the Board would assume that she did not want another hearing and proceed accordingly. In an October 2017 letter, the Veteran specifically indicated that she did not wish to appear at another Board hearing. While reference was not specifically made regarding the August 2008 VLJ's cessation of employment with the Board, the Board finds that the Veteran has not been prejudiced as she was presented with an opportunity to appear at an additional hearing if she so desired. Therefore, the Board will consider the Veteran's case on the evidence of record. In a September 2010 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. In a January 2015 decision, the AOJ increased the evaluation for the right knee disability to 60 percent disabling, effective May 6, 2014. In an August 2016 decision, the Board, in relevant part, denied entitlement to an evaluation in excess of 20 percent for the service-connected right knee disability prior to August 29, 2005, and entitlement to an evaluation in excess of 30 percent for the service-connected right knee disability from October 1, 2006, to May 6, 2014. The Board continued the 60 percent evaluation for the right knee disability from May 6, 2014, as well as granted a separate evaluation for right knee instability and assigned a 10 percent evaluation effective March 28, 2013. The Veteran appealed the denial of evaluations in excess of 20 percent prior to August 29, 2005, and in excess of 30 percent from October 1, 2006, to May 6, 2014 for the right knee disability to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the Court granted a joint motion for partial remand and remanded the case to the Board for action consistent with the joint motion. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. Prior to August 29, 2005, the evidence demonstrates right knee flexion to 90 degrees with pain and normal extension. 2. Prior to August 29, 2005, the evidence demonstrates right knee 2+ laxity in the medial joint; her symptoms are best characterized as "moderate" rather than as "severe." 3. From October 1, 2006, to May 6, 2014, the evidence demonstrates right knee postoperative residuals were manifested by flexion to no less than 40 degrees with pain, normal extension, and no objective evidence of ankylosis; the evidence does not demonstrate chronic right knee residuals consisting of severe painful motion or weakness. 4. From March 28, 2013, to May 6, 2014, there is objective evidence of "slight" instability; the evidence does not demonstrate any instability from October 1, 2006, to March 28, 2013, or "moderate" instability from March 28, 2013, to May 6, 2014. CONCLUSIONS OF LAW 1. The criteria for establishing an evaluation in excess of 20 percent for right knee limitation of motion prior to August 29, 2005, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2017). 2. The criteria for establishing a separate 20 percent evaluation for right knee instability prior to August 29, 2005, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for establishing an evaluation in excess of 30 percent for right knee status post total knee replacement from October 1, 2006, to May 6, 2014, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2017). 4. The criteria for establishing an evaluation in excess of 10 percent for right knee instability prior to March 28, 2013, and from March 28, 2013 to May 6, 2014, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice & Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records and all identified VA and private treatment records have been obtained. Moreover, the Veteran has been provided appropriate VA examinations. In addition, the Veteran has testified before the Board in August 2008 and June 2010. Further, there has been substantial compliance with the September 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any outstanding evidence that should be obtained to substantiate her claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. II. Legal Criteria 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.A. § 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 (2017). 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 (2017). 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). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45. 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. 38 C.F.R. § 4.59 (2017). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Diagnostic Codes 5003 and 5010 rate arthritic conditions. A 10 percent evaluation is warranted when there is x-ray evidence of involvement of 2 or more major joints or minor joint groups; a 20 percent evaluation is warranted when there is involvement of 2 or more major joints or minor joint groups with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). Additionally, a 10 percent evaluation is warranted for noncompensable limitation of motion for effected joints, provided that there is objective x-ray evidence of arthritis and objective evidence of swelling, muscle spasm, or other satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is to 0 degrees (full extension) and to 140 degrees (full flexion). 38 C.F.R. § 4.71a, Plate II (2017). Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704(1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. When flexion is limited to 30 degrees, a 20 percent evaluation may be assigned. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating may be assigned. When extension is limited to 30 degrees, a 40 percent evaluation is assignable. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5256 provides a 30 percent evaluation for favorable ankylosis of the knee joint in full extension, or unfavorable ankylosis in slight flexion between 0 and 10 degrees. A 40 evaluation is warranted for unfavorable ankylosis in flexion between 10 and 20 degrees, and a 50 percent evaluation is warranted for unfavorable ankylosis between 20 and 45 degrees. A 60 percent evaluation is warranted for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2017). Slight recurrent subluxation or lateral instability warrants a 10 percent evaluation. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 30 percent rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). Diagnostic Code 5259 provides a 10 percent evaluation for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71, Diagnostic Code 5259 (2017). Under Diagnostic Code 5262, tibia and fibula impairment with malunion of a slight knee disability warrants a 10 percent evaluation, moderate knee disability warrants a 20 percent evaluation, and marked knee disability warrants a 30 percent evaluation. A 40 percent evaluation is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). Under Diagnostic Code 5263, genu recurvatum (acquired traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5263 (2017). Diagnostic Code 5055 applies to cases of total knee replacement. A 30 percent evaluation is the minimum evaluation that may be assigned following a total knee replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5055. A higher evaluation of 60 percent is warranted when there is evidence of chronic residuals consisting of severe painful motion or weakness in the extremity. A 100 percent evaluation is warranted for 1 year following the implantation of the prosthesis. Otherwise, when there are intermediate degrees of residual weakness, pain or limitation of motion, it is to be rated by analogy to diagnostic codes 5256, 5261 or 5262. Id. The Board notes that the terms "mild," "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. The Disability Benefits Questionnaire (DBQ) evaluation criteria for knee examinations ask the examiner to identify whether instability, if present, falls within the range of 1+ (0-5 mm), 2+ (5-10 mm) or 3+ (10-15 mm). These examination criteria provide an equitable basis on which to find that 1+ instability, which is shown here, is "slight," whereas 2+ would be "moderate" and 3+ would be "severe." III. Factual Background and Analysis Evaluation of Right Knee prior to August 29, 2005 Historically, service connection for a right knee disability, namely status post meniscus tear, was granted by a May 1986 rating decision and a 20 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257 was assigned effective January 31, 1986. The Veteran perfected an appeal to this decision. In a May 1987 decision, the Board continued the Veteran's 20 percent evaluation for her right knee disability. The Veteran's claim for an increased evaluation for her right knee was received in August 2004. In May 2004, the Veteran presented to the VA walk-in clinic complaining of shin pain. Examination of the knee showed full range of motion of her right knee. The impression was erythema of the shin. X-ray of the knee showed joint space narrowing in the medial compartment. Also in May 2004, the Veteran presented to Thomas Memorial Hospital emergency room complaining of right knee pain that was described as 7/10 in severity. She reported that ibuprofen was not resolving her pain. X-ray of the knee showed osteoarthritic-type changes and osteopenia; range of motion was not noted. The Veteran was given a prescription for narcotic pain medication and provided crutches; she was advised to be non-weight bearing for one week and to follow up with her primary care provider. In June 2004, the Veteran presented to the VA primary care clinic (PCC) complaining of intermittent right knee pain that was described as a 5/10 in severity. Examination showed normal gait, with good tone and power. The clinician's impression was osteoarthritis of the right knee and pain syndrome from former injury. In July 2004, the Veteran had a VA orthopedic consult in which the surgeon noted complaints of pain in the medial joint with swelling and giving out, with grinding sensation with weight bearing and pain at rest. Examination showed 2+ laxity in the medial joint but negative McMurray's sign. There was mild swelling but good range of motion. Valgus deformity was present with weight bearing. X-ray showed advanced degenerative joint disease in the right knee. In August 2004, the Veteran was issued a right knee brace by the VA rehabilitative services clinic. In September 2004, the Veteran presented to the VA orthopedic clinic complaining of constant right knee pain, 8/10 in severity. The Veteran was referred to the rehabilitative services clinic for adjustment of her brace. In November 2004, the Veteran underwent a VA examination of the right knee, during which she complained of steady right knee pain was described as a 4/10 in severity occasionally increasing to 8-9/10. The knee pain would occasionally wake her at night. She reported stiffness with lifting, with standing longer than 10 minutes, with driving longer than 45-60 minutes and with sitting 1-2 hours. She reported swelling but no heat, redness or locking. She reported instability but denied falls. Regarding fatigability, she reported being able to stand for 30 minutes at most but discomfort after 10 minutes; she could walk for at most a quarter- to a half-mile. She endorsed flare-ups 3-4 times per week associated with climbing stairs and lasting 30 minutes per episode. The Veteran denied using a cane or other ambulatory device. She stated she had a knee brace but was not wearing it because it did not fit well. Reported functional impairment was difficulty climbing stairs at work and difficulty at home lifting objects, stooping or squatting. Examination showed the Veteran to walk favoring the right knee, bearing much of her weight on the left. The right knee was tender to palpation. The knee was stable. There was muscle atrophy in the right leg, and right leg strength was 4/5 compared to 5/5 in the left. Active range of motion was 120 degrees flexion with pain beginning at 90 degrees (the left knee had 130 degrees of flexion). After repetitive motion, flexion of the right knee was reduced to 105 degrees. Extension of both knees was 0 degrees (normal) including after repetitive motion. Both knees had popping but stability testing was normal. The clinical impression was tri-compartmental degenerative changes of the right knee. In March 2005, the Veteran presented to the VA orthopedic outpatient clinic complaining of constant knee pain that was described as 8/10 in severity. Conservative treatment including a series of Synvisc injections had not resolved her pain to an acceptable level, and the clinician noted the Veteran would need a total knee replacement (TKR). The Veteran was accordingly scheduled for TKR on August 29, 2005. On August 19, 2005, the Veteran had a preoperative history and physical examination in which the examiner noted the Veteran to have full active range of motion without pain, swelling, effusion, crepitance, dislocation, swelling or joint laxity. There was also no muscular swelling, atrophy or tenderness and no obvious deformity or asymmetry. The clinician's impression was right knee pain and degenerative joint disease, pre-TKA. TKR was performed as scheduled on August 29, 2005. In August 2008, the Veteran testified before the Board regarding her symptoms prior to August 29, 2005. She testified that prior to her surgery she was unable to walk on uneven ground or climb stairs; she was essentially restricted in her activities. She used a brace, but it was uncomfortable and cumbersome. The Veteran testified that her symptoms in 2004 were as severe as they were just prior to surgery, so she feels that she should be compensated at the post-surgical 30 percent effective from 2004. In June 2010, the Veteran testified at a Travel Board hearing in which she asserted that she underwent a VA examination prior to August 2005 during which the examiner had not noted instability, but her knee was nonetheless unstable from service until her knee replacement surgery. In fact, she stated that her greatest functional limitation prior to surgery was instability. Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted prior to August 29, 2005, pursuant to diagnostic codes 5260 and 5261. The Veteran's flexion on examination was to 90 degrees prior to onset of pain, which is actually noncompensable under Diagnostic Code 5260, although at least 10 percent is warranted for painful motion of an arthritic joint where ROM is not compensable. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran did not have compensable limitation of extension under Diagnostic Code 5261, and there is no indication of pain with extension to warrant separate compensation. The Veteran asserts that her right knee was unstable prior to August 2005. Specifically, during the July 2004 VA orthopedic consult, she reported pain in the medial joint with swelling and giving out. Likewise, during her June 2010 testimony before the Board, she asserted that prior to the August 2005 TKR she underwent a VA examination and the examiner did not note instability; however, she stated that her knee was unstable from service until her TKR surgery. She concluded that her greatest functional limitation prior to surgery was instability. The aforementioned evidence demonstrates that during the July 2004 orthopedic consult, examination of the Veteran's right knee revealed 2+ laxity in the medial joint. Laxity is described as "slackness or displacement (whether normal or abnormal) in the motion of the joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1012 (32nd ed. 2012). As noted above, a 1+ instability equates to a slight disability, a 2+ equates to a moderate disability, and a 3+ equates to a severe disability. Although the November 2004 VA examination report notes the Veteran's right knee as stable, the examiner did not address the disability picture during flare-up during the Veteran's examination. Consequently, the Board finds that the Veteran's demonstrable symptomatology in the July 2004 orthopedic consult and her lay statements and testimony regarding right knee instability throughout the rating period consistent with her initial injury upon which service connection was granted, status post right medial meniscus tear. Thus, by resolving reasonable doubt in her favor, the Board finds that the Veteran is entitled to a separate 20 percent evaluation for "moderate" right knee instability, pursuant to Diagnostic Code 5257, prior to August 29, 2005. However, the criteria for an evaluation in excess of 20 percent for right knee instability prior to August 29, 2005, have not been met, as there is no evidence of "severe" instability. Separate evaluations are not warranted under any other applicable diagnostic code, as there is no evidence of ankylosis, impairment of the tibia and fibular or genu recurvatum, or cartilage, semilunar dislocated with frequent episodes of locking pain and effusion in the joint, or removal of symptomatic semilunar cartilage. In so finding all of the above, the Veteran is competent to report on symptoms and she is credible to the extent that she believes she is entitled to a higher evaluation. The Board placed more weight on the medical findings. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type of degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight was placed on examination findings in regard to the type and degree of impairment. Evaluation of Right Knee from October 1, 2006 to May 6, 2014 The Veteran had a right TKR on August 29, 2005. As above, pursuant to Diagnostic Code 5055, a rating of 30 percent is the minimum rating after knee replacement, or with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256, 5261, or 5262. An evaluation of 60 percent is assigned with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The period under review begins October 1, 2006, the date the 100 percent postoperative evaluation terminated and the Veteran's evaluation was restored to 30 percent under Diagnostic Code 5055. In April 2007, the Veteran underwent a Physical Residual Functional Capacity Assessment, performed in support of her claim for Social Security Administration (SSA) disability benefits. The examiner noted physical impairment due to thoracic and lumbar strain (primary diagnosis) and status post right knee replacement (secondary diagnosis). The Veteran was characterized as being unable to ever balance, to climb ladders/rope/scaffolds, to crouch or to crawl; and, occasionally unable to climb stairs/ramps, to stoop or to kneel. The Veteran was found to be frequently able to lift 10 pounds and occasionally able to lift 20 pounds and able to stand/walk or sit for six hours during a normal eight-hour day with routine breaks. The examiner stated that the Veteran's symptoms were partly supported by physical reports; in regard specifically to the right knee the examiner stated that the Veteran was complaining of right knee pain but was shown to have good range of motion. Also in April 2007, the Veteran underwent an examination by W.N.M., M.D., performed in support of her claim for SSA benefits. The Veteran's gait was not antalgic and right knee range of motion was to 90 degrees (the left knee had normal flexion to 150 degrees). Strength in all extremities was 5/5. The Veteran complained of decreased sensation on the lateral aspect of the right knee, which was confirmed on examination. No effusion or crepitus was noted. The report is silent in regard to stability. In April 2008, the Veteran presented to the VA PCC complaining of occasional pain in the right knee. Examination of the knee showed edema, with a scar. In August 2008, the Veteran testified before the Board regarding her symptoms since October 2006. She stated that she could now stand longer than she could before surgery, but she still experienced right knee aching and swelling. In October 2009, the Veteran underwent a VA examination in which she complained of a sensation of having a piece of steel in her knee that becomes very cold during cold weather. She endorsed problems bending, squatting and walking on uneven ground. She also reported having areas of anesthesia and dysesthesia on the knee. Current treatment consisted of medication (ibuprofen), bracing and exercising. Response to treatment was reportedly good, without side effects. She endorsed deformity, pain, stiffness, weakness and decreased speed of motion; she denied instability, giving way, incoordination, locking, dislocation, effusion or symptoms of inflammation. She endorsed flare-ups every 2-3 weeks, moderate in severity and lasting one day. Such flare-ups were associated with increased activity and cold weather, and were relieved by rest and decreased activity. The Veteran denied constitutional symptoms of arthritis or incapacitating episodes of arthritis. She stated she was able to stand for up to one hour and denied limitations of walking. She endorsed using a cane and a brace, intermittently but frequently. Examination showed the Veteran to have normal gait, without evidence of abnormal weight-bearing. The knee showed bony enlargement, tenderness, weakness and guarding of movement. There was no grinding or instability. The meniscus was surgically absent. The joint showed weakness, characterized as "moderate" by the examiner. ROM or the right knee was flexion to 120 degrees (compared to 140 degrees left knee) without objective evidence of pain with motion, to include repetitive movement. Extension was normal. The joint was not ankylosed. The legs were equal in length. The examiner noted a surgical scar on the right knee that was not clinically significant. X-ray showed postoperative changes. The examiner diagnosed postoperative changes status post knee replacement. The examiner noted the following functional impairments associated with the disability. There was no occupational impairment since the Veteran was not currently employed; in that regard the Veteran stated she was about to begin working a sales job. Impairment of activities of daily living was as follows: prevents sports; moderate impairment of recreation; mild impairment of chores; no impairment of shopping, exercise, traveling, feeding, bathing, dressing, toileting, grooming or driving. In June 2010, the Veteran testified at a Travel Board hearing, during which she asserted that despite her knee replacement surgery she continues to have pain and reduced range of motion. She stated she walks every day for exercise as advised by her surgeon. She endorsed wearing knee brace relatively often, when she knows she will be on her feet for an extended period. Her only current medication was over-the-counter Tylenol. Her current symptoms included stiffness, especially in winter, and a feeling of steel in the joint. She also testified of numbness in some areas and pain in others but denied tingling or burning. Severity of symptoms is increased by cold weather and heightened activity. She is no longer able to play sports or jog and is unable to squat. She places weight on her left knee to favor the right, and sometimes consequently uses a cane. When driving about an hour she has to stop and walk around because the knee becomes stiff. She is able to climb stairs but has to do so one at a time. A disability determination by SSA shows the Veteran was granted SSA disability benefits effective from May 2012 due to functional psychotic disorder (primary diagnosis) and osteoarthrosis and allied disorders (secondary diagnosis). An associated medical impairment analysis characterizes schizophrenia as primary and "severe" and also notes other psychiatric diagnosis (anxiety disorders) as "severe;" reconstructive surgery of weight bearing joint was characterized as secondary and "non-severe." The examiner stated the Veteran's physical disability does not preclude gainful sedentary work (the Veteran was noted to have postgraduate college education). In March 2013, the Veteran underwent a VA examination of the knee. At the time of examination, she complained of instability of the knee and stated she had been found to have a protruding surgical screw that might require corrective surgery. She reported constant pain 6-7/10 in severity and stated her knee does not bend well, causing trouble on stairs and uneven ground. She also complained of trouble bending and stooping and stated that kneeling is impossible. Medication consisted of over-the-counter pain medications twice daily. She described a recent flare-up while carrying a heavy load that caused her to have to rest for one hour. Examination of the knee showed flexion to 45 degrees with pain at 40 degrees. Extension was normal, without evidence of pain. (The left knee had flexion to 85 degrees and normal extension, both without pain.) After repetitive use the Veteran had right knee flexion to 55 degrees (left knee flexion to 95 degrees) and continued normal extension. Repetitive use testing resulted in additional limitation of function due to pain (right only), less movement than usual (bilateral), instability of station (right only) and interference with sitting, standing or weight bearing (right only). Neither knee was tender to palpation along the joint. Muscle strength for both flexion and extension was 4/5 right and 5/5 left. The right knee was unstable anterior and posterior at 1+ (0-5 mm); the left knee was stable. Medial-lateral stability was normal bilaterally. There was no evidence of recurrent patellar subluxation or dislocation and no sign of meniscus symptoms. The examiner noted the Veteran had a right TKR in 2005 but did not note the extent of residuals. The examiner noted the Veteran was not using a cane on the day of examination but endorsed occasionally using a cane due to knee pain. Current X-ray was unremarkable, with normal bony alignment and no evidence of hardware malfunction. The examiner diagnosed total right knee in 2005. With respect to occupational impairment, the Veteran reported she is currently disabled and not working, and in receipt of SSA disability benefits due to her knee. If she did go back to work she would have problems with prolonged standing, stairs and uneven ground due to knee pain and weakness. In May 2014, the Veteran underwent another VA examination of the knee. The Veteran complained the knee is weak, unstable and gives out when walking; she also complained of a screw protruding from the bone. She endorsed flare-ups associated with walking more than a quarter mile and with squatting or kneeling. Examination revealed flexion to 95 degrees with pain at 15 degrees; extension ended at 15 degrees with pain at that point. Repetitive motion testing resulted in flexion to 90 degrees and extension to 15 degrees; repetitive motion testing caused additional limitation of function due to less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion and interference with sitting, standing and weight bearing. The right knee was painful to palpation. (There are no corresponding ROM data regarding the left knee). Right knee strength was 4/5, compared to 5/5 in the left knee. Stability tests showed 1+ instability (0-5 mm) in all directions (anterior, posterior and medial-lateral). There was no indication of meniscus condition. The examiner noted a surgical scar that was not clinically significant. The right thigh was 2 cm smaller than the left, consistent with atrophy. There were no palpable screw heads and no history or evidence of patellar subluxation or dislocation. The Veteran endorsed occasionally using a neoprene sleeve as an assistive device. The examiner diagnosed right total knee replacement with instability. Regarding occupational impairment, the Veteran reported having last worked in 2010, as a social worker; the examiner stated the right knee disability would prevent prolonged weight bearing tasks (standing/walking) but would not limit or prevent sedentary tasks. Upon review of the evidence of record, the Board finds that from October 1, 2006, to May 6, 2014, the Veteran's symptoms most closely approximated the criteria for the currently assigned 30 percent evaluation pursuant to Diagnostic Code 5055. In this case, the evidence of record does not show that the Veteran has experienced chronic right knee residuals consisting of severe painful motion or weakness any time during the period on appeal in order to warrant the next higher 60 percent evaluation under Diagnostic Code 5055. Specifically, at the April 2007 examination by W.N.M., M.D., strength of the right knee was 5/5, bilaterally. During the April 2008 VA PCC visit, the Veteran reported "occasional" pain in the right knee. During the October 2009 VA examination, she reported pain and weakness; however, she indicated that her flare-ups that occurred every two to three weeks were "moderate" in severity and only lasted one day. She also reported that she was able to stand for up to one hour and denied any limitations of walking. Examination noted "moderate" joint weakness, range of motion of the right knee to 120 degrees flexion without pain. During the June 2010 hearing before the Board, the Veteran asserted that despite her TKR, she continued to have pain and reduced range of motion; however, she also explained that she walked every day for exercise. A May 2012 SSA determination characterized the Veteran's right knee surgery as secondary and "non-severe." During the March 2013 VA examination, the Veteran reported "constant" pain; however, examination showed flexion to 40 degrees with pain, muscle strength was 4/5 on the right and 5/5 on the left, and the examiner noted that the Veteran did not have any sign of meniscus symptoms. As detailed above, for evaluations below 60 percent, Diagnostic Code 5055 indicates that residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In this regard, during the period on appeal the Veteran's flexion was at worse to 40 degrees with pain; when rated by analogy under Diagnostic Code 5260 such limitation of flexion would fall squarely under the criteria for a 20 percent rating. In addition, there was no indication during the period of the appeal of any limitation of extension or ankylosis. Accordingly, the criteria for a rating higher than 30 percent under Diagnostic Code 5055, or by analogy under Diagnostic Codes 5256, 5260, and/or 5261, were not met prior to May 6, 2014. Moreover, the evidence in this case shows that the 30 percent evaluation assigned appropriately compensates the Veteran to the extent that she does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca. At the March 2013 examination, the examiner noted that there was no objective evidence of painful motion upon range of motion testing. Additionally, the Veteran did not have additional limitation in range of motion of the right knee following repetitive-use testing. The Veteran's functional loss or function impairment of the right knee included less movement than usual, right knee instability, and interference with sitting and standing. However, as noted, the Veteran's limitation of flexion does not approximate limitation to 30 degrees, and her extension does not approximate limitation to 5 degrees. Thus, the Veteran's limitation of motion of the right knee would warrant no more than a 20 percent disability evaluation with consideration of functional loss. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5260 and 5261. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5262 (impairment of the tibia and fibular), Diagnostic Code 5263 (genu recurvatum), Diagnostic Code 5258 (cartilage, semilunar dislocated with frequent episodes of locking pain and effusion in the joint), or Diagnostic Code 5259 (removal of symptomatic semilunar cartilage) are not applicable in this instance. No treatment record, or any report of VA or private examination demonstrate any objective finding of impairment of the tibia and fibula or genu recurvatum, or cartilage, semilunar dislocated with frequent episodes of locking pain and effusion in the joint, or removal of symptomatic semilunar cartilage. As established in the August 2016 Board decision, the VA examination on March 28, 2013, established entitlement to separate compensation for instability; there is no evidence of instability from October 1, 2006 to March 28, 2013. The March 2013 examiner noted 1+ anterior and posterior disability, although medial-lateral stability was normal. The Board found this constituted clinical evidence of "slight" instability, for which an evaluation of 10 percent was warranted under Diagnostic Code 5257. The Board further notes that VA examination in May 2014, based on which the AOJ assigned a higher evaluation under Diagnostic Code 5055, recorded continued 1+ instability (anterior, posterior and medial-lateral). Accordingly, the evidence does not suggest that an evaluation higher than 10 percent for right knee instability has been met after March 28, 2013 to May 6, 2014. In sum, the Board finds that the Veteran's right knee postoperative residuals do not warrant an evaluation in excess of 30 percent from October 1, 2006, to May 6, 2014, and right knee instability does not warrant an evaluation in excess of 10 percent prior to March 28, 2013, or from March 28, 2013 to May 6, 2014. ORDER Entitlement to an evaluation in excess of 20 percent for the service-connected right knee disability prior to August 29, 2005 is denied. Entitlement to a separate 20 percent evaluation for right knee instability prior to August 29, 2005 is granted. Entitlement to an evaluation in excess of 30 percent for the service-connected right knee disability from October 1, 2006, to May 6, 2014 is denied. Entitlement to an evaluation in excess of 10 percent for the service-connected right knee instability disability prior to March 28, 2013, and from March 28, 2013 to May 6, 2014, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs