Citation Nr: 18150282 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-20 151 DATE: November 14, 2018 ORDER An evaluation in excess of 20 percent for osteoarthritis of the right knee, with limitation of flexion, is denied. A separate 20 percent evaluation, but no higher, for limitation of extension of the right knee for the period of November 11, 2010 to July 14, 2016, but no earlier, is granted. A 30 percent evaluation for limitation of extension of the right knee, beginning July 15, 2016, is granted. A separate 10 percent evaluation, but no higher, for lateral instability of the right knee, beginning July 15, 2016, but no earlier, is granted. A separate 10 percent evaluation for internal derangement, meniscal and ACL tears of the right knee for the period of February 2, 2009 through July 14, 2016, is granted. A 20 percent evaluation for internal derangement, meniscal and ACL tears of the right knee for the period beginning July 15, 2016, is granted. An evaluation in excess of 20 percent for left ankle instability and arthritis is denied. A 70 percent evaluation, but no higher, for major depressive disorder, beginning March 24, 2014, but no earlier, is granted. The claim of entitlement to an effective date prior to October 31, 2003, for the award of an evaluation of 20 percent for left ankle instability and arthritis is dismissed. FINDINGS OF FACT 1. The Veteran’s right knee disability does not demonstrate limitation of flexion to 15 degrees or less throughout the appeal period. 2. For the period of November 11, 2010 through July 14, 2016, the Veteran’s right knee is shown to have limitation of extension of his right knee to 15 degrees; beginning July 15, 2016, however, the right knee is shown to have limitation of extension to 20 degrees. 3. Beginning July 15, 2016, but no earlier, the Veteran’s right knee is shown to have slight lateral instability; there is no moderate recurrent subluxation or lateral instability demonstrated throughout the appeal period. 4. The first factually ascertainable evidence of a meniscal condition during the appeal period is in the February 2, 2009 private MRI report; the Veteran is shown to have a symptomatic meniscal condition of his right knee for the period of February 2, 2009 through July 14, 2009. 5. Beginning July 15, 2016, the Veteran’s meniscal condition is more closely approximate to dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. 6. The Veteran’s left ankle disability is not shown to be ankylosed at any time during the appeal period. 7. For the period beginning March 24, 2014, the Veteran’s major depressive disorder is shown to be more closely approximate to occupational and social impairment with deficiencies in most areas; the evidence of record does not demonstrate a factually ascertainable increase in psychiatric symptomatology prior to that date. 8. Throughout the period of this appeal, the Veteran’s major depressive disorder has not resulted in total occupational and social impairment with symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 9. The April 2004 rating decision, which awarded a 20 percent evaluation for a left ankle disability, effective October 31, 2003, is final. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for osteoarthritis of the right knee, with limitation of flexion, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5260, 5262, 5263. 2. The criteria for a separate 20 percent evaluation for limitation of extension of the right knee for the period of November 11, 2010 through July 14, 2016, and for a 30 percent evaluation for the period beginning July 15, 2016, are met. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a separate 10 percent evaluation for lateral instability of the right knee for the period beginning July 15, 2016, are met. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a separate 10 percent evaluation for internal derangement, meniscal and ACL tears of the right knee, for the period of February 2, 2009 through July 14, 2016, are met. 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 5. The criteria for a separate 20 percent evaluation for internal derangement, meniscal and ACL tears of the right knee, for the period beginning July 15, 2016, are met. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 6. The criteria for an evaluation in excess of 20 percent for left ankle instability and arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274. 7. The criteria for a 70 percent evaluation, but no higher, for major depressive disorder beginning March 24, 2014, but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 8. The Veteran’s freestanding claim seeking an effective date prior to October 31, 2002, for the award of a 20 percent evaluation for eft ankle instability and arthritis lacks legal merit. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1972 to January 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and September 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history in this case is long and complex. In short, however, respecting the right knee claim, in August 2009, the Veteran filed an increased evaluation claim for his right knee disability. In an October 2009 rating decision, the Agency of Original Jurisdiction (AOJ) decreased the disability rating for the Veteran’s right knee from 20 percent to 10 percent. The Veteran appealed that reduction in evaluation to the Board. A February 2014 Board decision restored the 20 percent disability rating for the Veteran’s right knee and remanded the Veteran’s increased rating claim for his right knee disability. That claim was also remanded in May 2016 and again in December 2017. During the pendency of that claim, the Veteran also filed claims for increased evaluation for his left ankle and psychiatric disabilities in March 2014, and those claims were adjudicated in the September 2014 rating decision. The Board remanded those claims for additional development in December 2017. The above noted claims have been returned to the Board at this time for further appellate review following substantial compliance with the December 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). 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. §§ 3.321, 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). 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. 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. 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. 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). Right Knee Disability As noted above, the Veteran filed his claim for increased evaluation of his right knee disability on August 19, 2009. In conjunction with this claim for increase, the Board has considered the relevant evidence since August 19, 2008. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran’s right knee has been assigned a 20 percent evaluation under Diagnostic Code 5010-5260. A separate 30 percent evaluation under Diagnostic Code 5003-5261 was assigned, effective March 26, 2018, in an April 2018 rating decision. The Board initially reflects that the Veteran has been assigned the highest possible evaluation available under Diagnostic Codes 5003 and 5010 in this case throughout the appeal period. The Board will therefore no longer discuss those Diagnostic Codes in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Normal range of motion of the knee is to zero degrees (full extension) to 140 degrees (full flexion). 38 C.F.R. § 4.71a, Plate II. 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 disability rating 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 disability rating may be assigned. When extension is limited to 15 degrees, a 20 percent disability rating 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 disability rating is assignable. A 50 percent disability rating may be assigned when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Slight recurrent subluxation or lateral instability warrants a 10 percent disability rating. 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 disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Turning to the evidence of record, a private February 9, 2009 Magnetic Resonating Imaging (MRI) scan of the right knee demonstrated moderate degenerative changes in the lateral joint space, with anterior horn of the lateral meniscus almost absent and a loose body in the posterolateral joint space that may be part of the anterior horn. There was also a tear of the anterior horn of the medial meniscus, possible tear of the posterior horn, and partial versus complete tear of the anterior cruciate ligament (ACL). There were loose bodies in the anterior and posterior inter-cruciate space and the posterior patellofemoral joint. Finally, there was suprapatellar fusion, patellofemoral osteochondral lesions and degeneration with large spurs, and degenerative of the patellar and quadriceps tendons. The Veteran underwent a VA examination of his right knee disability in September 2009. During that examination, the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, and pain; he denied heat, redness, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He further reported flare-ups as often as 3 times a day lasting for an hour, with pain being 10 out of 10 in severity. His flare-ups were precipitated by physical activity, stress and walking, sitting, and standing; they were alleviated by rest, use of a brace, and piroxicam. The Veteran denied any incapacitation due to his right knee disability; he also indicated that he could not sit with his knees bent or stand for extended periods of time. On examination, the Veteran’s right knee was tender, without any edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. There was no subluxation. There was crepitus, but no genu recurvatum, locking pain, or ankylosis. The Veteran’s right knee had flexion to 130 degrees with extension to 0 degrees; there was no change in range of motion after repetitive testing. The examiner noted that the Veteran’s right knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Medial/lateral collateral ligament, anterior/posterior cruciate ligament, and medial/lateral meniscus stability testing were all within normal limits. The examiner diagnosed the Veteran with osteoarthritis of the right knee and indicated that he had pain, tenderness and joint crepitus; he concluded that the Veteran’s right knee disability limited his work as a construction worker due to knee pain, prevented him from playing sports, and limited his walking distance. The Veteran underwent a private examination with Dr. L.T.O. on November 11, 2010, at which time he reported bilateral knee pain; he was taking Darvocet, Mobic and Piroxicam. On examination, the Veteran’s right knee had generalized tenderness and positive generalized McMurray’s and Apley’s testing, but negative Lachman’s and drawer testing. He had flexion to 105 degrees and extension was limited to 15 degrees. He had moderate swelling of the right knee. The Veteran underwent another VA examination of his right knee in April 2014, at which time he was diagnosed with degenerative arthritis of the right knee with internal derangement of the anterior medial meniscus and partial versus complete ACL tear. The Veteran reported pain that was 3-5 out of 10 in severity; the Veteran reported that he has been told that he required a total knee replacement, although such had not been accomplished as of that time. He took Tramadol and aspirin as needed for pain. He also reported flare-ups when the weather changed, which increased his pain to 10 out of 10 in severity. He also reported that prolonged ambulation, stooping, bending, or kneeling aggravated his right knee pain. On examination, the Veteran had 90 degrees of flexion with pain at 70 degrees, and extension to 0 degrees with pain beginning at 45 degrees or more; range of motion was unchanged after repetitive testing. The examiner noted that the Veteran’s right knee disability resulted in less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weightbearing. There was pain on palpitation. Muscle strength testing was normal, as were the anterior instability (Lachman’s), posterior instability (posterior drawer) and medial-lateral instability tests. There was no evidence of recurrent subluxation or dislocation. The examiner noted that the Veteran had a meniscal tear, although such did not result in any residual signs or symptoms; he had not had a meniscectomy. The examiner noted that he required occasional use of a brace, cane and walker due to his right knee disability. X-rays revealed arthritis of the right knee, but did not demonstrate evidence of subluxation. The examiner noted that February 2009 MRI results. The examiner noted that the Veteran’s meniscal tear, internal derangement, and ACL tear were progressions of his right knee disability. Respecting occupational functioning, the examiner noted that the Veteran was working as a sheet metal worker and that his knee pain increased with prolonged ambulation, stooping, bending, and kneeling. Finally, the examiner noted that it was not feasible to describe additional functional limitation during flare-ups as he would need to see the Veteran’s condition on flare-up to provide an estimation of additional functional loss. The Veteran underwent a VA examination of his right knee on July 15, 2016, at which time he was diagnosed with degenerative arthritis and internal derangement of the anterior medial meniscus of the right knee. The Veteran reported that he had been waiting for knee replacement surgery for 10 years. He reported that he was unable to exercise due to his knee condition. He reported daily knee pain that was 5 out of 10 in severity. He stated that any slight movement in a wrong direction increased his pain to a 12 out of 10 in severity and he felt miserable. He reported flare-ups with walking, which increased his pain; rest alleviated his flare-ups. On examination, the Veteran had flexion to 90 degrees, with extension limited to 15 degrees; flexion was reduced to 75 degrees and limitation to 20 degrees in extension was noted after repetitive use testing. The examiner noted that the Veteran had pain on examination, although such did not result in additional functional impairment. There was pain on weightbearing, as well as localized tenderness on the lateral aspect of the knee on deep palpitation; there was also crepitus. The examiner noted that the examination was consistent with the Veteran’s description of functional loss with repetitive use and during flare-ups, noting that the Veteran had additional functional loss due to pain and fatigue. The examiner additionally noted disturbance of locomotion and interference with standing due to his right knee disability. No ankylosis was noted. The examiner noted that there was a history of slight recurrent subluxation, although no history of lateral instability or recurrent effusion. There was slight instability of the right knee noted in anterior and lateral instability testing, although the posterior and medial instability tests were normal. The examiner additionally noted that the Veteran had a meniscal tear that resulted in frequent episodes of locking; the examiner noted that the Veteran’s meniscal tear was noted in a 2003 MRI and that he reported episodes of locking that occurred with varying frequency from 2-3 times a day to once a month. The examiner noted the regular use of a brace due to the Veteran’s right knee instability. Finally, the examiner indicated that the Veteran’s right knee disability resulted in a difficulty sitting, standing from a seated position, walking over 10 feet, and climbing stairs. He additionally was limited in standing for more than 5 minutes during a flare-up. Finally, the Veteran underwent a VA examination of his right knee on March 26, 2018, at which time he was diagnosed with osteoarthritis of the right knee. The Veteran reported flare-ups of pain that disturbs his sleep, locking up of his knee, and falls due to his right knee disability. The examiner noted that standing and walking caused the Veteran pain and that there was a possibility of a fall. On examination, the Veteran had flexion to 105 degrees and was limited in extension to 20 degrees; the examiner noted that there was pain on examination with passive and active ranges of motion, severe joint-line tenderness, and evidence of pain with weightbearing and non-weightbearing. Repetitive motion testing could not be performed due to movements being too painful. The examiner noted that the examination was medically consistent with the functional loss that including pain, fatigue, weakness, and lack of endurance, which the Veteran described with repeated use and on flare-ups. The examiner additionally noted that there was disturbance of locomotion, and interference with sitting and standing as a result of the right knee disability. There was no ankylosis, or history of recurrent subluxation or lateral instability. Anterior, posterior, medial, and lateral instability tests were normal. The examiner noted that the Veteran had “shin splints” of the right, although such was asymptomatic at that time. The examiner further noted that the Veteran has a meniscal tear with frequent episodes of joint pain, although the examiner did not find that there was evidence of episodes of locking or effusion. The examiner noted that the Veteran regularly used a brace and a cane, and occasionally used a walker due to his right knee disability. The examiner concluded that the Veteran was unable to bend, stand, or walk for long due to his right knee disability. The Board finally reflects that the VA treatment records from throughout the appeal period demonstrate continued treatment for his right knee disability, including pain management. The Board, however, notes that those records generally demonstrate substantially similar findings to the above noted evidence. Based on the foregoing evidence, the Board finds awards the following evaluations and separate ratings for the right knee disability. Initially, the Board reflects that the Veteran’s right knee is not shown to be ankylosed or to have genu recurvatum at any time during the appeal period. Likewise, although there is a single indication of asymptomatic shin splints during the most recent VA examination, throughout the appeal period the Veteran’s right knee disability is not shown to have any impairment of the tibia and fibula, and particularly no evidence of mal- or non-union of the tibia and fibula. Accordingly, the Board finds that Diagnostic Codes 5256, 5262, and 5263 are not applicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. With respect to the Veteran’s limitation of motion, the Board reflects that throughout the appeal period, the Veteran’s right knee is not shown to be limited in flexion to 15 degrees or less. Accordingly, the Board finds that a higher evaluation under Diagnostic Code 5260 is not warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board, however, finds that the evidence of record demonstrates that extension is limited to 15 degrees beginning on November 11, 2010, the date of his private examination with Dr. L.T.O. Such limitation is commensurate to a 20 percent evaluation and therefore the Board awards the Veteran a separate 20 percent evaluation for his limitation of extension beginning on November 11, 2010. The Board reflects that the evidence prior to November 2010 does not demonstrate any limitation of extension, and therefore, the Board cannot assign any compensable evaluation for limitation of extension prior to that date in this case. Moreover, the Board further reflects that the first evidence of record demonstrating a limitation of extension to 20 degrees in this case was during the July 2016 VA examination. Such a limitation to 20 degrees is commensurate to a 30 percent evaluation under Diagnostic Code 5261. Accordingly, the Board increases the Veteran’s separate evaluation for limitation of extension to 30 percent disabling beginning July 15, 2016, the date of his VA examination. Again, prior to July 15, 2016, the evidence of record does not demonstrate that the Veteran’s right knee had a limitation of extension to 20 degrees or more. Likewise, throughout the appeal period, the Veteran’s right knee is not shown to have a limitation of extension to 30 degrees or more, and therefore a higher evaluation under Diagnostic Codes 5261 is not warranted throughout those appeal periods. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Regarding instability, the Board acknowledges the Veteran’s complaints of giving way of his right knee in the September 2009 VA examination, although he denied any subluxation or dislocation at that time. The examiner found that the Veteran did not have any subluxation or instability at that time, and his joint stability tests were normal at that time. After that examination, the Veteran does not report any subluxation or lateral instability of his knees until his most recent VA examination in March 2018, at which time he reported falling. The Board further notes that the first instance of any indication of lateral instability of the right knee joint was in the July 2016 VA examination, at which time slight lateral instability of the right knee was noted and the examiner indicated that regular use of a knee brace was necessary for the lateral instability demonstrated on examination at that time. Prior to that examination, both the private and VA examiners did not find any recurrent subluxation or lateral instability of the right knee. Thus, while the Board acknowledges the Veteran’s singular complaint of giving way in September 2009, the Board notes that the Veteran did not otherwise complain of any lateral instability and no evidence of such was shown in the record until July 15, 2016. Accordingly, as the first instance of any lateral instability of the right knee was shown during on July 15, 2016, at the VA examination at that time, the Board finds that a separate 10 percent evaluation for slight lateral instability under Diagnostic Code 5257 is warranted beginning that date, but not prior to that date. The evidence from throughout the appeal period is not demonstrable of any moderate recurrent subluxation or lateral instability of the right knee in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Finally, turning to the Veteran’s noted meniscal disability that is shown by the evidence of record to be a progression of his service-connected right knee disability, the Board finds that the first evidence of record of a meniscal injury during the appeal period is the February 2, 2009 private MRI that is of record. Thus, the first date of a factually ascertainable increase in symptomatology respecting a meniscal condition is February 2, 2009. See 38 C.F.R. § 3.400(o). In the September 2009 VA examination, the Board acknowledges that the Veteran reported locking of his right knee at that time; however, on examination at that time, the examiner did not find any locking or effusion of the right knee related to the Veteran’s meniscal injury. Additionally, the Board reflects that subsequent to that examination, the first evidence of any locking or effusion in the record is in the July 2016 VA examination; the Board reflects that the Veteran does not report or allege any locking or effusion of the knee in the intervening VA treatment records or the private and VA examinations of his right knee. Accordingly, for the period of February 2, 2009 through July 14, 2016, the Board finds that a separate 10 percent evaluation for a symptomatic meniscal condition is warranted under Diagnostic Code 5259. However, in light of the evidence of the Veteran’s noted frequent locking symptomatology noted in the July 2016 VA examination, the Board finds that that a 20 percent evaluation under Diagnostic Code 5258 is warranted beginning July 15, 2016. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. In short, the Board finds that a separate 20 percent evaluation under Diagnostic Code 5261 for limitation of extension is warranted in this case for the period from November 11, 2010 through July 14, 2016, which is increased to 30 percent disabling beginning July 15, 2016. A separate 10 percent evaluation for lateral instability of the right knee under Diagnostic Code 5257 is warranted beginning July 15, 2016. Furthermore, the Board finds that a separate 10 percent evaluation for a symptomatic right meniscal condition is warranted for the period of February 2, 2009 through July 14, 2016, and beginning July 15, 2016, a separate 20 percent evaluation for that meniscal condition is warranted under Diagnostic Code 5258. In all other respects, the Veteran’s claim for increased evaluation of his right knee disability is denied in this case. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257-5261. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left Ankle Disability The Veteran filed his claim for increased evaluation of his left ankle disability on March 24, 2014; in conjunction with this claim for increase, the Board has contemplated the evidence of record since March 24, 2013, in conjunction with this decision. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran has been assigned a 20 percent evaluation under Diagnostic Code 5271. The Board reflects that the Veteran has therefore been assigned the highest possible evaluation under that Diagnostic Code in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Likewise, a review of the claims file demonstrates that there is no evidence of record that the Veteran has ankylosis of his right subastragalar or tarsal joint, malunion of the right os calcis or astragalus, nor is there evidence that he has underwent an astragalectomy in this case. Moreover, the highest possible evaluation for any of those disabilities is 20 percent disabling, which has already been assigned in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. Consequently, the Board will not further contemplate Diagnostic Codes 5271 through 5274 in this decision. Finally, under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, a 40 percent rating is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. Turning to the evidence in this case, in the Veteran’s August 2014 VA examination, his left ankle dorsiflexion was 15 degrees, and objective evidence of painful motion began at 10 degrees. The Veteran’s left ankle plantar flexion was 25 degrees, and the objective evidence of painful motion began at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions on both sides. After testing, the Veteran’s left ankle dorsiflexion ended at 10 degrees, and his plantar flexion ended at 20 degrees. The Veteran’s muscle strength was noted to be at the level of “active movement against some resistance” in both dorsiflexion and plantar flexion. At the Veteran’s most recent VA examination for his left ankle on March 26, 2018, the Veteran exhibited dorsiflexion of 10 degrees and plantar flexion of 20 degrees. The Veteran was not able to perform repetitive-use testing with at least three repetitions because the movements were too painful. Pain was noted on examination in both dorsiflexion and plantar flexion, and that pain caused functional loss. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. The examination showed a reduction in muscle strength in the left ankle due to the claimed condition. The Veteran’s muscle strength was noted to be at the level of “active movement against some resistance” in both dorsiflexion and plantar flexion. The Board has additionally reviewed the Veteran’s VA treatment records in this case; those records generally demonstrate continued treatment for the left ankle disability, although those records do not demonstrate that the Veteran’s left ankle is ankylosed at any time during the appeal period. Based on the foregoing evidence, the Board reflects that in order for a higher evaluation to be assigned in this case, the evidence must demonstrate ankylosis of the right ankle either between 30 and 40 degrees in plantar flexion or in between 0 and 10 degrees in dorsiflexion. As the evidence clearly demonstrates during the appeal period, the Veteran’s left ankle is shown to have some range of motion during that appeal period and that there is no evidence of ankylosis or fixation of the Veteran’s left ankle. In other words, as the Veteran has some range of motion of his left ankle throughout the appeal period, Diagnostic Code 5270 is not applicable in this case and a higher evaluation under that criteria cannot be assigned. Accordingly, the Board finds that an evaluation in excess of 20 percent for the Veteran’s left ankle disability is not warranted in this case and therefore that claim must be denied at this time. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5270-5274. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Psychiatric Disability The Veteran filed his claim for increased evaluation of his thoracolumbar spine disability on March 24, 2014. Throughout the appeal period, the Veteran’s psychiatric disability has been assigned a 50 percent evaluation under DC 9434 from March 24, 2014 through March 21, 2018, and a 70 percent evaluation for the period beginning March 22, 2018. In conjunction with this claim for increase, the Board has considered the relevant evidence since March 24, 2013. See 38 C.F.R. § 3.400(o). The General Rating Formula for Mental Disorders governs DC 9434, which provides that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation or mood; or difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9434. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Here, in an August 2014 VA examination, the examiner determined that the Veteran had “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by medication.” The Veteran was noted to have symptoms of depressed mood; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran stated that he felt doom and gloom, but he denied any current suicidal ideation. He said he felt tired and lethargic most days and his motivation was poor. He stated that he had little desire or interest in participating in any pleasurable activities, and he found less pleasure than he used to in those activities. He said he did not get out often and never socialized with others, except his girlfriend. At the time of the August 2014 examination, the Veteran was working as a sheet metal mechanic at Tinker Air Force Base. At the Veteran’s March 22, 2018 VA examination, the examiner determined that the Veteran had “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.” The Veteran was noted to have depressed mood; anxiety; chronic sleep impairment; flattened affect; mood swings; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a worklike setting. The VA examiner noted that the Veteran was cooperative and easy to talk to and that the Veteran answered all questions asked of him and had good eye contact. The Veteran said he still has a good relationship with his siblings (two sisters and a brother) and his two sons. The VA examiner noted that the Veteran was social and had participated in sports such as football and baseball and that he did not appear to pose any threat of danger or injury to himself or others. Based on the foregoing evidence, the Board finds that throughout the appeal period the Veteran’s social and occupational functioning demonstrated a deficiency in most areas. The Board notes the congruency in symptomatology between the two VA examinations noted above with respect to the presentation of symptoms and their effects on the Veteran’s social and occupational functioning. Consequently, the Board finds the March 2018 VA examiner’s assessment to be the most probative evidence of record in this case. The Board notes that a 100 percent evaluation is not warranted, as the Veteran did not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran is not shown to be totally socially impaired at any time during the appeal period, as he maintained social relationships particularly with his children and siblings throughout the appeal period. The Board therefore cannot find that the Veteran is shown to be totally occupationally and socially impaired throughout the appeal period. As a final matter, the Board acknowledges that the Veteran and his representative have contended that the Veteran should have been awarded a higher evaluation for his 50 percent evaluation prior to March 24, 2014. The Board reflects that date corresponds to the date on which his claim was received. The Board has reviewed the evidence for the one year prior to the date of that claim. However, his VA treatment records for that period do not demonstrate any evidence of a factually ascertainable increase in symptomatology during that period such that the Board can assign an effective date for the award of 70 percent prior to March 24, 2014 in this case. See 38 C.F.R. § 3.400(o). Accordingly, the Board finds that the Veteran warrants a 70 percent evaluation, but no higher, is warranted for his psychiatric disability beginning March 24, 2014, but no earlier; in all other aspects, the Veteran’s claim for an increased evaluation is denied. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date Claim for Left Ankle The Veteran contends that he is entitled to an earlier effective date for the award of a 20 percent evaluation for the left ankle. Respecting the 20 percent evaluation for the left ankle, the RO granted the Veteran service connection for the left ankle disability with an evaluation of 20 percent in an April 2004 rating decision, effective October 31, 2003. The Veteran was notified of that decision in an April 2004 notification letter. The Veteran did not submit a notice of disagreement or any new and material evidence respecting his left ankle disability within one year of that April 2004 notification letter. Accordingly, the Board finds that the April 2004 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). As that decision is final, the Board notes that there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, in order for the Veteran to be awarded an effective date for the award of a 20 percent evaluation for the left knee disability in this case is to show clear and unmistakable error (CUE) in the prior April 2004 rating decision. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Board reflects that the Veteran and his representative have made no assertions of CUE in this case with respect to the April 2004 rating decision; the Board therefore finds that there is no CUE claim in this case, as CUE must be pled with specificity. Accordingly, a freestanding effective date claim is not permitted under Rudd and a CUE claim has not been properly asserted in this case, the Board must dismiss the Veteran’s earlier effective date claim at this time. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel