Citation Nr: 18149107 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-21 375 DATE: ORDER Entitlement to an earlier effective date than March 14, 2007 for the grant of service connection for lumbar spine degenerative disc disease (“lumbar spine disability”) is denied. Entitlement to a temporary total disability rating for a left knee anterior cruciate ligament (ACL) repair surgery necessitating convalescence is granted from November 28, 2007 through December 31, 2007. Entitlement to an initial 10 percent disability rating for a left knee disability under Diagnostic Codes (DCs) 5003-5260 prior to February 25, 2013 (excluding the period when the Board has awarded a temporary total rating for convalescence after a left knee surgery) is granted. Entitlement to an initial disability rating greater than 10 percent for a left knee disability under DCs 5003-5260 since February 25, 2013 is denied. Entitlement to a separate, initial disability rating of 20 percent under DC 5257 for moderate left knee lateral instability is granted. REMANDED Entitlement to an initial compensable disability rating prior to February 25, 2013 and an initial disability rating greater than 40 percent thereafter for a lumbar spine disability is remanded. Entitlement to an initial compensable disability rating prior to February 25, 2013 and an initial disability rating greater than 10 percent thereafter for bilateral pes planus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed an original service connection claim for a back disability on December 31, 1991. The Agency of Original Jurisdiction (AOJ) denied the claim in a November 1992 rating decision and notified him accordingly on December 2, 1992. He did not file a notice of disagreement (NOD) or new and material evidence within one year of the December 2, 1992 notice. 2. On March 14, 2007, the Veteran filed a petition to reopen the previously denied service connection claim for a low back condition. Prior to the receipt of the March 14, 2007 petition to reopen, there were no communications from the Veteran or an authorized representative since the December 1992 rating decision notice that indicated his intent to file a compensation claim for a low back condition. In a May 2013 rating decision, the AOJ granted service connection for a low back disability effective March 14, 2007. 3. The Veteran required approximately four weeks, but no more, of convalescence after his November 28, 2007 left knee ACL repair surgery. 4. Prior to February 25, 2013, the Veteran’s service-connected left knee disability manifested as no worse than: flexion limited to 90 degrees with objective evidence of painful motion; extension consistently to 0 degrees with objective evidence of painful motion; and functional impairments such as difficulty with standing, walking long distances, and climbing stairs; however, at no point did this disability manifest with ankylosis, a tibia or fibula impairment, genu recurvatum, a dislocated semilunar cartilage, or symptomatic removal of the semilunar cartilage. 5. Since February 25, 2013, the Veteran’s service-connected left knee disability has manifested as no worse than: flexion limited to 50 degrees (considering the functional impact of pain, weakness, fatiguability, and incoordination with flare-ups and repeated use over time); extension consistently to 0 degrees with objective evidence of painful motion; functional impairments such as difficulty with bending, kneeling, and mobility; and use of an assistive device; however, at no point did this disability manifest with ankylosis, a tibia or fibula impairment, genu recurvatum, a dislocated semilunar cartilage, or symptomatic removal of the semilunar cartilage. 6. Resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that his service-connected left knee disability has manifested with objective evidence of lateral instability that was no more than moderate. CONCLUSIONS OF LAW 1. The November 1992 rating decision’s denial of service connection for a back condition is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The criteria for entitlement to an earlier effective date than March 14, 2007 for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.400. 3. The criteria for a temporary 100 percent disability rating for a left knee ACL repair surgery necessitating convalescence have been met from November 28, 2007 through December 31, 2007. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 4. Prior to February 25, 2013, the criteria for an initial, compensable (10 percent) disability rating, but no higher, for left knee arthritis with noncompensable yet objectively painful limitation of flexion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.14, §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 5. Since February 25, 2013, the criteria for an initial rating greater than 10 percent for left knee arthritis based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.14, §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 6. The criteria for a separate, initial disability rating of 20 percent, but no higher, for moderate left knee lateral instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to February 1974, from May 1977 to May 1981, and from November 1990 to March 1991. He also had additional periods of service with the U.S. Army Reserve. The Veteran testified before the undersigned Veterans Law Judge during a June 2012 video conference hearing regarding multiple issues, including entitlement to service connection for a left knee disability, a back disability, and bilateral pes planus. A transcript of that proceeding is associated with the claims file. Subsequently, in the May 2013 rating decision on appeal, the Regional Office (RO) granted those service connection claims and assigned initial ratings and effective dates; this appeal followed. The Veteran requested another Board hearing regarding the issues on appeal in his March 2015 VA Form 9, but he withdrew that hearing request in February 2018. In a September 2015 rating decision issued during the pendency of this appeal, the RO granted service connection for right and left lower extremity sciatica as secondary to the Veteran’s service-connected lumbar spine disability. The RO assigned initial ratings of 10 percent effective July 14, 2015 for both respective lower extremity disabilities. The RO notified the Veteran accordingly in September 25, 2015. He did not file an NOD or new and material evidence within one year of the September 2015 notice, or otherwise challenged any aspect of that rating decision. Likewise, during the pendency of this appeal, the RO awarded a separate, noncompensable rating for left knee scars effective December 6, 2007. See November 2015 rating decision. The Veteran did not file an NOD or otherwise challenge any aspect of that decision. Thus, the Board will not address these issues further when considering the lumbar spine and left knee claims on appeal. The issue of entitlement to a temporary total disability rating for convalescence after a right foot surgery has been raised by the record during the pendency of this appeal, but the AOJ has not adjudicated it. The Veteran previously filed a claim for this benefit, which the AOJ denied in a January 2008 rating decision because he was not yet service-connected for a right foot condition. However, the AOJ later granted service connection for bilateral pes planus in the May 2013 rating decision on appeal. He then re-requested a temporary total rating for convalescence after right foot surgeries “between 2007 and 2009” and in October 2013. See June 2013 NOD. Therefore, the Board does not have jurisdiction over this issue and it is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The issue of entitlement to a temporary total disability rating for a November 2007 left knee surgery necessitating convalescence also has been raised by the record. The Veteran previously filed a claim for this benefit, which the AOJ denied in a January 2008 rating decision because he was not yet service-connected for a left knee condition. However, the AOJ later granted service connection for a left knee disability in the May 2013 rating decision on appeal. He then re-requested a temporary total rating for convalescence after a left knee surgery in his June 2013 NOD. The AOJ has not yet adjudicated this issue. However, the Board is taking jurisdiction over it because this documented left knee surgery fell within the appeal period beginning in March 2007 for the increased initial rating claim on appeal regarding the left knee disability. This action does not prejudice the Veteran in any way because the Board is awarding the Veteran a temporary total disability rating for convalescence after a November 2007 left knee surgery. In a December 2012 Board decision / remand, the Board found that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the evidence of record under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Board concluded it could not take jurisdiction over the implied TDIU claim and referred the issue to the RO. At that time, the Board distinguished the Veteran’s situation from Rice, as the TDIU claim was raised based on conditions that were not service-connected. Since that time, service connection has been granted for the low back and the left knee conditions, and the Veteran reiterated his contentions regarding the TDIU issue. See June 2013 NOD. There is no indication that the RO has taken any action on the previously referred TDIU claim. However, since the Veteran is now service-connected for the conditions he claims, in part, have caused his unemployability, and the ratings for those conditions are before the Board, his case now squarely falls within the holding of Rice and the Board has jurisdiction over the TDIU claim. In May 2013, the Board remanded the following issues for the AOJ to issue a Statement of the Case (SOC): entitlement to an initial compensable disability rating for a low back disability prior to February 25, 2013, and greater than 40 percent thereafter; entitlement to an initial compensable rating for a left knee disability status post ACL reconstruction prior to February 25, 2013 and greater than 10 percent thereafter; and entitlement to an initial compensable rating for bilateral pes planus prior to February 25, 2013, and a rating greater than 10 percent thereafter. Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued a February 2015 SOC addressing those issues and this appeal followed. In June 2013 correspondence filed in the interim between the May 2013 Manlincon remand and the February 2015 SOC, the Veteran raised the issue of entitlement to an earlier effective date than March 14, 2007 for the grant of service connection for a lumbar spine disability. The AOJ took jurisdiction over and adjudicated that issue in the February 2015 SOC, and the Veteran’s March 2015 VA Form 9 expressly appealed all issues in that SOC. As the February 2015 SOC led the Veteran to believe that this earlier effective date issue was on appeal and the RO adjudicated it on the merits, the Board will proceed to decide that issue. In the May 2013 rating decision on appeal, the AOJ granted service connection for bilateral pes planus and assigned staged initial ratings as follows: noncompensable (0 percent) effective March 14, 2007; and 10 percent from February 25, 2013. The Veteran clearly challenged the effective date of this increase (or, in other words, he clearly sought an initial compensable rating from March 14, 2007 through February 24, 2013). See June 2013 NOD and March 2015 VA Form 9. In the February 2015 SOC, the AOJ framed the bilateral pes planus claim on appeal as entitlement to an earlier effective date of March 14, 2007 for the grant of a 10 percent disability rating. However, in a June 2013 statement, the Veteran also appeared to request a higher initial rating than 10 percent rating since February 25, 2013. Specifically, he suggested that his current bilateral pes planus ratings did not reflect the actual, current severity of this condition, which he claimed manifested as bilateral involvement with severe symptoms. He also referenced a forthcoming left foot surgery. He also referenced the forthcoming, October 2013 left foot surgery in his June 2013 NOD. These statements suggesting worsening of his left foot condition since February 2013 and referencing a post-February 2013 surgery do not make sense unless he also intended to challenge the initial, 10 percent rating assigned from February 25, 2013. In summary, the Board finds that the AOJ mischaracterized this issue. The Board will construe these ambiguous contentions in the Veteran’s favor and frame the issue on appeal as entitlement to an initial compensable disability rating prior to February 25, 2013 and greater than 10 percent thereafter for bilateral pes planus. The AOJ obtained additional, pertinent evidence since the February 2015 SOC. In July 2018 correspondence, the Veteran waived initial AOJ review of this evidence. Neither the Veteran nor his representative has raised any duty to notify or duty to assist issues regarding the issues denied in whole or in part herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the February 2015 SOC and will not be repeated here in full. Earlier Effective Date The Veteran seeks an earlier effective date than March 14, 2007 for the grant of service connection for a low back condition. He contends that the effective date should be February 14, 2007, when he asserts that he filed an earlier claim for this condition. See June 2013 statement. By way of background, the Veteran filed an original service connection claim for a back disability on December 31, 1991. The AOJ denied the claim in a November 1992 rating decision and notified him accordingly on December 2, 1992. He did not file an NOD or new and material evidence within one year of the December 1992 notice. Thus, the November 1992 rating decision became final. On March 14, 2007, the Veteran filed a petition to reopen the previously denied service connection claim for a low back condition. In a May 2013 rating decision, the AOJ granted the claim and assigned an effective date of March 14, 2007. Generally, if a claim is received within one year after separation from service, the effective date shall be "day following separation from active service." 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date shall be date of claim or date entitlement arose, whichever is later. Id. (emphasis added). However, under 38 C.F.R. § 3.156(c), a final decision will be reconsidered when new and material evidence, in the form of service records, results in the reopening of a claim; in such cases, a retroactive evaluation may be assigned. See Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011); 38 C.F.R. § 3.156(c)(1) (“Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.”). Here, VA requested and received the Veteran’s service treatment records before the November 1992 rating decision. See May 1992 VA Form 21-3101 (request for information containing AOJ’s requests for complete service treatment records from Veteran’s periods of active service); July 1992 VA Form 21-3101 (service department’s response to RO’s request for service treatment records, noting that available requested records were forwarded in July 1992); November 1992 rating decision (noting AOJ’s consideration of service treatment records). Notably, the Veteran does not appear to contend that any official service department records relevant to the low back claim existed but had not been associated with the claims file prior to the November 1992 rating decision. Moreover, the Board’s review of the electronic claims file suggests that paper copies of his service treatment records were scanned into the electronic record in March 2015. However, the 1992 documents summarized above show that the AOJ in fact requested and received the service treatment records before the November 1992 rating decision, and considered those records in that decision. In summary, the exception to the general rule regarding the finality of previous, final denials of service connection claims set forth in 38 C.F.R. § 3.156(c) does not apply here. The Board finds that the March 14, 2007 claim on appeal, which resulted in the May 2013 rating decision’s grant of service connection for a low back disability, was a petition to reopen. Accordingly, the applicable effective date rule provides that the effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2), (r). After a full review of the record, the Board finds that an earlier effective date than March 14, 2007 for the grant of service connection for a low back condition is unwarranted. Prior to the receipt of the March 14, 2007 petition to reopen, there were no communications from the Veteran or an authorized representative since the December 1992 rating decision notice indicating his intent to file a compensation claim for a low back condition (including a petition to reopen). The record does not support the Veteran’s June 2013 statement suggesting that he filed an earlier low back compensation claim on or about February 14, 2007. Indeed, the record does not suggest that VA received any documents on or around that date, including a formal or informal petition to reopen or a service connection claim. Moreover, the Veteran does not contend that any medical records received prior to the March 14, 2007 petition to reopen constituted informal “claims” for benefits; thus, the Board will not address this theory further. It is unfortunate that the Veteran did not file a petition to reopen the previously and finally denied service connection claim for a low back condition before March 14, 2007. However, the Board has no choice but to deny his appeal under the clear and specific regulations governing effective dates summarized above. The RO properly granted the earliest effective date available of March 14, 2007, when VA received his petition to reopen. In conclusion, the claim for an earlier effective date than March 14, 2007 for the grant of service connection for a low back disability is denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Temporary Total Rating for Left Knee Surgery The Veteran had surgery to repair his left knee ACL tear on November 28, 2007. He seeks a temporary total disability rating for the approximately four weeks after surgery when he was recovering. See December 2007 statement and accompanying medical evidence. After a full review of the record the Board finds that a temporary total disability rating for the approximately one month of convalescence after left knee surgery is warranted from November 28, 2007 through December 31, 2007. Under 38 C.F.R. § 4.30, a total (100 percent) disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Under subsection (a)(1), a total rating will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. The Court has defined “convalescence” as “the stage of recovery following a surgical operation,” and “recovery” as the “act of regaining or returning toward a normal or healthy state.” See Feldon v. West, 11 Vet. App. 427, 430 (1998). Here, the Veteran had surgery to repair a left knee ACL tear on November 28, 2007. The post-operative notes indicate that he was instructed to use a hinged knee brace for a total of four weeks after the surgery. See November 28, 2007 VA orthopedic surgery operative note. A letter from his VA orthopedic provider dated November 29, 2007, the day after the surgery, states that the Veteran would not be able to return to work for at least four weeks. As the Veteran had significant restrictions on his activity and ability to work for four weeks post-surgery, he met the criteria for a temporary 100 percent rating. The Board finds that his convalescence period began on November 28, 2007 (date of hospital admission) and ended on December 31, 2007 (one month from the first day of the month following the November 28, 2007 hospital discharge). See 38 C.F.R. § 4.30. In conclusion, a temporary total disability rating for surgical repair of a service-connected left knee ACL condition is granted from November 28, 2007 to December 31, 2007. Increased Initial Rating for a Left Knee Disability The RO assigned initial disability ratings for the Veteran’ service-connected left knee disability of 0 percent (noncompensable) from March 14, 2007 through February 24, 2013 and from 10 percent thereafter under 38 C.F.R. § 4.71a, DCs 5003 (degenerative arthritis) and 5260 (limitation of flexion). The RO increased this initial rating to 10 percent effective February 25, 2013 based on painful motion. See 38 C.F.R. § 4.59. He seeks higher initial ratings at all relevant times during the appeal period beginning on March 14, 2007. The issues before the Board may be phrased in different ways. For example, during the pendency of this appeal, at times the Veteran and the RO framed the left knee issue as entitlement to an earlier effective date than February 25, 2013 for the increased initial rating to 10 percent (and entitlement to an initial rating greater than 10 percent thereafter). However, the claim also can be phrased as entitlement to higher (or compensable) initial ratings than those currently assigned throughout the appeal period beginning on March 14, 2007. Here, the Board has phrased the issue as an increased initial rating claim because in the May 2013 rating decision on appeal, the RO staged the initial ratings assigned for the Veteran’s service-connected left knee disability. Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding the Board must consider entitlement to “staged” ratings to compensate for times when the disabilities may have been more severe than at other times during the appeal). Essentially, the Veteran seeks higher initial ratings throughout the appeal period beginning on March 14, 2007, i.e., for both stages at issue. The grant of any compensation benefit necessarily includes the implementation of an award and the selection of an effective date. Thus, there is no issue regarding an impermissible freestanding claim for an earlier effective date. To warrant a rating greater than 10 percent for the left knee based solely on limitation of motion, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); or • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256). See 38 C.F.R. § 4.71a. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Degenerative arthritis is rated under DC 5003. When there is painful motion of a major joint caused by degenerative arthritis that is detected on x-ray, such painful motion will be considered limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there was no evidence of compensable limitation of motion. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intention of the rating schedule is to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, and 4.59. Neither the Veteran nor his representative has raised any other issues regarding the increased rating issues adjudicated herein; nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the reasons below, entitlement to an initial compensable rating prior to February 25, 2013 is granted for painful yet noncompensable limitation of flexion under DCs 5003-5260; an initial rating greater than 10 percent thereafter is denied under DCs 5003-5260. Moreover, a separate, initial disability rating of 20 percent is granted under DC 5257 for moderate left knee instability. 1. Entitlement to an initial compensable disability rating prior to February 25, 2013 (excluding the period when the Board has awarded a temporary total rating for convalescence after a left knee surgery) under DCs 5003-5260 is granted; and entitlement to an initial disability rating greater than 10 percent thereafter under DCs 5003-5260 is denied. A. Prior to February 25, 2013 (DCs 5003-5260) After a full review of the record, the Board finds that prior to February 25, 2013, a 10 percent initial disability rating, but no higher, is warranted for left knee arthritis under DCs 5003-5260 for limitation of flexion that was noncompensable yet objectively painful. Initially, the medical evidence competently establishes a diagnosis of left knee arthritis. See, e.g., February 2011 VA knee examination (noting left knee degenerative changes shown on x-rays). The evidence summarized below is at least in equipoise that during this period, the Veteran’s left knee arthritis manifested as limitation of flexion to 90 degrees at worst, with objective evidence of painful flexion: • January 2013 VA knee examination (left knee flexion ended at 90 degrees both initially and after repetitive use testing; objective evidence of painful motion began at 0 degrees). • February 2011 VA knee examination (noting feelings of stiffness, lack of endurance, fatigability, and pain; upon initial range of motion testing, left knee flexion was limited to 90 degrees, with painful flexion shown at 90 degrees). • January 2008 VA physical therapy note (noting left knee flexion of 120 degrees [active range of motion] and 125 degrees [passive range of motion]; also noting left knee pain upon examination of strength and resisted movements). A higher, 20 percent rating under DC 5260 for limitation of flexion is unwarranted because the evidence of record from this period does not suggest that the Veteran’s left knee arthritis manifested as flexion limited to 30 degrees. The Board acknowledges the Veteran’s contentions suggesting that his left knee disability is more severe such that an initial rating higher than 10 percent is warranted. However, the weight of the most competent and probative evidence summarized above supports the 10 percent initial disability prior to February 25, 2013 granted herein for objectively painful though noncompensable flexion under DCs 5003-5260. He is competent to report symptoms and impairments such as pain. However, he is not competent to assess the clinical severity of his left knee limitation of motion, which requires evaluation by a medical professional. Thus, Board finds that the competent medical findings summarized above are more probative than his lay contentions regarding the degree of severity of his left knee limitation of motion. In summary, affording the Veteran the benefit of the doubt, a minimum compensable (10 percent) initial rating for left knee arthritis with painful yet noncompensable motion under DCs 5003-5260 is warranted prior to February 25, 2013. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Since February 25, 2013 (DCs 5003-5260) After a full review of the record, the Board finds that the Veteran’s left knee disability has not satisfied or closely approximated the schedular criteria for an initial rating greater than 10 percent based on limitation of flexion under DCs 5003-5260 at any point since February 25, 2013. The Board affords great probative value to the October 2015 VA examination showing that, at worst, left knee flexion has been limited to 50 degrees (accounting for limits on functional ability due to pain, weakness, fatigability, or incoordination). See October 2015 VA knee examination (initial range of motion testing of the left knee showed flexion 0 to 55 degrees with pain noted on examination and found to cause functional loss; he was able to perform repetitive use testing, but there was no additional loss of function or range of motion after three repetitions; finding pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, which examiner estimated as flexion from 0 to 50 degrees). There is no competent medical evidence suggesting that the Veteran’s left knee disability approximated flexion limited to 30 degrees or more as required for a higher rating of 20 percent under DC 5260. Thus, a higher, 20 percent initial rating under DC 5260 for limitation of flexion is unwarranted. The Board considered the principles set forth in DeLuca, supra and 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). However, the current, 10 percent initial rating currently assigned from February 25, 2013 under DCs 5003-5260 for painful yet non-compensable left knee flexion already expressly accounts for these principles. See May 2013 rating decision. The Board acknowledges the Veteran’s contention that his left knee disability is more severe than his initial rating reflects. However, the Board finds that the weight of the most probative, competent evidence summarized above supports the currently assigned, 10 percent initial rating since February 25, 2013 for painful flexion under DCs 5003-5260. The Veteran’s painful though noncompensable limitation of flexion is consistent with the current, 10 percent initial rating during this period for painful though noncompensable flexion. He is competent to report symptoms and impairments such as pain. However, he is not competent to assess the overall, clinical severity of his left knee limitation of motion, which requires evaluation by a medical professional. Thus, Board finds that the competent medical findings summarized above are more probative than his lay contentions regarding the degree of severity of his left knee limitation of motion. In summary, an initial rating greater than 10 percent under DCs 5003-5260 is unwarranted since February 25, 2013. The benefit of the doubt rule does not apply because there is not an approximate balance of evidence. See Gilbert, 1 Vet. App. at 55. 2. Non-Applicable Separate Ratings An increased rating claim requires consideration of possible separate ratings for pertinent manifestations of the service-connected disability. When considering whether separate ratings are warranted, the adjudicator must avoid “pyramiding,” i.e., compensating a claimant more than once for duplicative or overlapping symptoms and impairments. Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the Board finds that separate compensable ratings are unwarranted at any point during the appeal period for the following symptoms: ankylosis (DC 5256); dislocated semilunar cartilage (DC 5258); symptomatic removal of the semilunar cartilage (DC 5259); limitation of extension (DC 5261); tibia or fibula impairment (DC 5262); genu recurvatum (DC 5263); and a limb length discrepancy (DC 5275). The Veteran does not appear to contend and the medical evidence does not show that a separate rating is warranted at any time during the appeal period for ankylosis under DC 5256. See February 2011 and October 2015 VA examinations (affirmatively finding no left knee ankylosis); see also April 2007 and January 2013 VA examinations (noting left knee range of motion findings that are inconsistent with ankylosis); VA outpatient treatment records, e.g., January 2007 VA physical therapy note and April 2008 VA orthopedic surgery note (noting left knee range of motion findings that are inconsistent with ankylosis). Nor does the Veteran appear to contend and the medical evidence does not suggest that a separate rating is warranted at any time during the appeal period for the following knee conditions: dislocation of the semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint (DC 5258); symptomatic removal of the semilunar cartilage (DC 5259); tibia or fibula impairment (DC 5262); or genu recurvatum (DC 5263). See, e.g., February 2011 VA knee examination (affirmatively finding Veteran did not have genu recurvatum on examination); October 2015 VA examination (affirmatively finding Veteran did not currently have and never had: a meniscus / semilunar cartilage condition; recurrent patellar dislocation; chronic exertional compartment syndrome; or any other tibial or fibular impairment); January 2013 VA knee examination (affirmatively finding no evidence of or history of recurrent patellar dislocation; noting past history of bilateral “shin splints,” but no current symptoms; no other current tibial or fibular impairments noted). The Board recognizes that an August 2007 VA outpatient treatment record wherein a provider preliminarily and tentatively diagnosed a “probable” lateral meniscal tear soon after a jogging injury (based in part on complaints of left knee pain, feelings of giving way, swelling, and “popping,” and a positive Apley’s test, among other clinical findings). However, this diagnosis was speculative (“probable”) and preliminary. Ultimately, after further diagnostic testing, evaluation, and imaging, VA orthopedic providers consistently noted the confirmed diagnosis of a left knee ACL tear. See, e.g., November 2007 VA orthopedic surgery admission note (“…MRI shows classic findings of complete ACL tear w[ith] bone contusion in the lateral compartment consistent w[ith] a pivot shift injury.”). The weight of the most probative and persuasive medical evidence does not show that the service-connected left knee disability manifested as a semilunar cartilage or meniscal disability, to include semilunar cartilage dislocation with frequent episodes of “locking,” pain, and effusion into the joint; thus, DC 5258 does not apply. Nor does DC 5259 apply because there is no evidence of symptomatic removal of the semilunar cartilage. The November 2007 surgery was clearly for an ACL repair, not a meniscal condition. Moreover, the Board recognizes that medical evidence from the appeal period documents a limb length discrepancy. The January 2013 VA examiner explained found that this discrepancy contributes to the Veteran’s antalgic gait, and noted that this gait issue was in part due to his service-connected right and left knee disabilities. However, the examiner did not find or suggest that it was at least as likely as not that this limb length discrepancy was a symptom of the service-connected left knee disability. Even assuming this is the case, a separate, compensable rating still would be unwarranted. For the minimum compensable (10 percent) rating under DC 5275 (shortening of the lower extremity bones), the evidence must show lower extremity bone shortening of 1 1/4 to 2 inches (3.2 cms. to 5.1 cms.). Here, there is no evidence that the Veteran’s limb length discrepancy has approximated 3.2 cms. to 5.1 cms at any point during the appeal period. See January 2013 VA knee examination (finding limb length discrepancy of right thigh longer than left thigh by 1 cm.). As for limitation of extension, the February 2011, January 2013, and October 2015 VA knee examinations all found full left knee extension ending at 0 degrees both initially and after repetitive use testing. Although a separate rating can be granted for limitation of extension, no such limitations are shown here. In summary, separate ratings are unwarranted at any point during the appeal period for ankylosis (DC 5256), dislocated semilunar cartilage (DC 5258), symptomatic removal of the semilunar cartilage (DC 5259), limitation of extension (DC 5261), tibia or fibula impairment (DC 5262), genu recurvatum (DC 5263), or a limb length discrepancy (5275).   3. Entitlement to a separate, initial 20 percent disability rating, but no higher, for moderate left knee lateral instability is granted under DC 5257. When rating service-connected knee disabilities, separate ratings are not precluded as a matter of law for limitation of motion and instability. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). DC 5257 expressly refers to lateral instability, a specific type of joint instability demonstrated by clinical test for ligament laxity, such as Lachman’s and drawer tests. Clinicians use the Lachman test to assess the presence and extent of ACL damage and anterior instability. If the ACL is damaged, then the tibia will be characterized by “translation” (i.e., laxity or movement) on the femur in the anterior direction. Providers may report Lachman test results in terms of a Roman numeral corresponding with the amount of ACL translation (Grades I, II, or III), and a categorical modifier (Grade A [firm] or B [absent]), which describes the quality of the passive anterior tibial translation’s endpoint. Clinicians “grade” the extent of ligament laxity or “translation” as follows: between 0 and 5 mm displacement (Grade I / “mild”); between 5 and 10 mm displacement (Grade II / “moderate”); and between 10 and 15 mm displacement (Grade III “severe”). See Mulligan, E.P., et. al., The Reliability and Diagnostic Accuracy of Assessing the Translation Endpoint During the Lachman Test, International Journal of Sports Physical Therapy (Feb. 2015), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4325288; see also Cluett, J., M.D., Lachman Test for an ACL Tear, https://www.verywellhealth.com/lachman-test-2549598. After a full review of the record, the evidence summarized below is at least in equipoise that the Veteran’s left knee disability has manifested as lateral instability that was no worse than moderate: • August 2007 VA emergency department notes (noting credible and competent complaints of left knee symptoms including feeling that left knee was totally giving way such that he could not bear any weight). • November 2007 VA orthopedic surgery note (noting subjective complaints of left knee instability and “giving way;” Veteran reported he wears hinged knee brace, cane, or crutches occasionally to help with instability; upon examination, provider found positive Lachman’s test with Grade IIA, and positive anterior drawer test [though provider did not grade severity of positive anterior drawer test findings]). • April 2008 VA orthopedic surgery note (examining Veteran status post November 2007 left ACL reconstruction; provider noted Grade “2A” Lachman examination; some physiologic laxity to varus stress also noted). • January 2013 VA knee examination (competently and persuasively finding instability of station contributed to bilateral knee disabilities; noting positive joint instability tests of the left knee, including positive anterior instability / Lachman’s test (1+ [0 to 5 mm]) and positive medial-lateral instability test (1+ [0 to 5 mm]). Here, the Grade IIA Lachman test results found by the November 2007 and April 2008 VA orthopedic providers referred to a clinically moderate degree of anterior instability. In contrast, the January 2013 VA examiner’s positive Lachman’s test findings of 1+ (0 to 5 mm) referred to a Grade I, mild degree of anterior instability. The 2013 VA examiner’s positive medial-lateral instability test also referred to a Grade I, mild degree of medial-lateral instability. The Board also recognizes that some clinicians made negative clinical findings regarding the presence of left knee instability during the appeal period. See February 2011 VA knee examination (finding no signs of instability; finding all joint stability tests of left knee were within normal limits); see also October 2015 VA knee examination (finding no history of lateral instability or recurrent subluxation, and finding all current left knee joint instability tests were normal). However, the Board affords minimal probative value to the October 2015 VA knee examination findings regarding no history of lateral instability because it was based on an inaccurate review of the Veteran’s medical history. Indeed, the 2015 VA examiner clearly failed to consider the positive lateral instability test results documented in VA outpatient orthopedic treatment records and in the January 2013 VA knee examination. On balance, and affording the Veteran the benefit of the doubt, the evidence summarized above is at least in equipoise regarding the presence of objective evidence of left knee lateral instability during the appeal period that was approximately moderate, but no worse. To the extent that the Veteran may contend that his current left knee instability is severe, this is unsupported by the weight of the objective medical evidence of record summarized above. He is competent to report symptoms such as feelings of “giving way” and the use of assistive devices such as braces. However, he is not competent to assess the clinical severity of his left knee lateral instability, which requires joint stability testing by a medical professional. Thus, the weight of the competent, objective medical findings summarized above, including the joint stability tests, are more probative than subjective descriptions of the perceived severity of left knee lateral instability. In conclusion, affording the Veteran the benefit of the doubt, a separate, initial rating of 20 percent, but no higher, is granted under DC 5257 for symptoms approximating left knee lateral instability that was no worse than moderate. REASONS FOR REMAND Initially, as noted above, the AOJ framed the bilateral pes planus claim on appeal as entitlement to an earlier effective date of March 14, 2007 for the grant of a 10 percent disability rating. See February 2015 SOC. Accordingly, the AOJ did not address the issue of entitlement to an increased initial rating since February 25, 2013. However, as explained above, the Veteran also appears to have challenged the initial ratings assigned throughout the appeal period, including the 10 percent rating assigned from February 25, 2013. See June 2013 statement. Thus, the Board has framed this issue as entitlement to an initial compensable rating prior to February 25, 2013 and greater than 10 percent thereafter for bilateral pes planus. As the February 2015 SOC did not adjudicate the merits of the increased initial rating claim for the period since February 25, 2013, it must do so on remand. The claims for higher initial ratings for bilateral pes planus and a lumbar spine disability are remanded for the following development. • Current VA examination: New VA examinations are needed to assess the current state of the Veteran’s service-connected bilateral pes planus and lumbar spine disability. The most recent VA examinations of those conditions were in January 2013. Evidence received since the last VA examinations suggests possible worsening of these disabilities. This evidence and the passage of almost six years since the most recent VA examinations warrant remands for updated evaluations of these disabilities. • VA treatment records: As the most recent VA outpatient treatment records in the claims file are from October 2015, the RO also should obtain updated VA outpatient treatment records. In addition, the Veteran implied that his left foot condition has worsened such that he required surgery in October 2013. See June 2013 statement. However, VA treatment records documenting that surgical procedure appear to be missing. The RO must document attempts to obtain them. • Social Security Administration (SSA) records: The Board's review of the record indicates that the Veteran’s SSA disability records remain outstanding. Those federal records are in VA’s constructive possession and are potentially relevant to the TDIU claim. Thus, the AOJ must attempt to obtain them. The matters are REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) notice (cc’ing his representative): explaining the legal requirements for substantiating a TDIU claim; asking him to submit a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and inviting him to submit any employment records or other pertinent evidence he may have to support his contentions regarding excessive missed time from work due to his service-connected disabilities. See January 2013 VA spine examination (regarding functional impact, Veteran reported that in the past 6 months, he had missed over 30 days of work). 2. Obtain the Veteran’s VA treatment records from the VA Puget Sound Health Care System and all associated outpatient clinics from October 2015 to the present. Also, please specifically document requests for the Veteran’s reported left foot surgery in October 2013. 3. Request the Veteran's complete SSA disability records. Document all requests and any negative responses. If the AOJ concludes that it is reasonably certain that these records do not exist or further efforts to obtain them would be futile, then notify the Veteran and his representative and give them the opportunity to submit the records. 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. Schedule VA examinations regarding the current symptoms and severity of the Veteran’s service-connected bilateral pes planus and lumbar spine disability. The examiners must comment on the functional impact of the Veteran’s service-connected bilateral pes planus and lumbar spine disability on his ability to work, with full supporting rationales. If any findings are not possible without resort to mere speculation, then the examiner must explain why. 6. The RO should consider whether any examinations need to be conducted for the Veteran’s other service-connected conditions prior to adjudicating his TDIU claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel