Citation Nr: 18161040 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 10-28 423 DATE: December 28, 2018 ORDER Entitlement to a rating in excess of 10 percent for patellar tendinitis of the left knee is denied. A separate 10 percent rating, but no higher, is assigned for limitation of flexion of the right knee from July 29, 2007, to June 13, 2018. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee since June 14, 2018, is denied. From July 29, 2007, to March 2, 2015, a higher rating of 20 percent, but no higher, for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee is granted. Entitlement to a rating in excess of 20 percent for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee since March 3, 2015, is denied. A separate disability rating for instability of the right knee is granted, and a 10 percent rating is assigned from July 29, 2007, to June 13, 2018, and a 20 percent rating is assigned since June 14, 2018. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the entire appeal period, the patellar tendinitis of the left knee has been manifested by normal extension, and flexion limited to, at worst, 105 degrees, when considering pain and functional impairment, but without occasional incapacitating exacerbations. 2. From July 29, 2007, to June 13, 2018, the right knee revealed degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with painful motion. 3. Throughout the entire appeal period, the right knee has been manifested by extension limited to, at worst, 5 degrees and flexion limited to, at worst, 100 degrees, when considering pain and functional impairment, but without occasional incapacitating exacerbations. 4. From July 29, 2007, to March 2, 2015, the degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee was productive of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 5. From July 29, 2007, to June 13, 2018, the right knee displayed slight recurrent lateral instability. 6. Since June 14, 2018, the right knee has been manifested by moderate recurrent subluxation and lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for patellar tendinitis of the left knee are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5024. 2. A separate disability rating of 10 percent, but no higher, for limitation of flexion of the right knee is warranted from July 29, 2007, to June 13, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003-5260. 3. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee since June 14, 2018, is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003-5260. 4. From July 29, 2007, to March 2, 2015, a higher rating of 20 percent for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5258. 5. Entitlement to a rating in excess of 20 percent for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee since March 3, 2015, is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5258. 6. A separate disability rating for instability of the right knee is warranted, and a 10 percent rating is assigned from July 29, 2007, to June 13, 2018, and a 20 percent rating is assigned since June 14, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to December 1996. These issues are on appeal from December 2008, March 2016, and July 2018 rating decisions. In May 2017, the Board remanded these issues for further development. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the “present level” of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA’s adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Since service connection was established, the Veteran has been rated, by analogy, under 38 C.F.R. § 4.71a, DC 5024 for his left knee disability. Since service connection was established, the Veteran’s degenerative joint disease, status post anterior cruciate ligament reconstruction of the right knee, has been rated, by analogy, under 38 C.F.R. § 4.71a, DCs 5003, 5010, 5257, 5258, 5260, and 5261. Since service connection was established, the Veteran’s limitation of flexion of the right knee has been rated under 38 C.F.R. § 4.71a, DCs 5003-5260. In this regard, if a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20. DC 5024 refers to tenosynovitis and instructs the rater to rate the disability based on limitation of motion of affected parts, as arthritis, degenerative. Degenerative arthritis is rated under DC 5003. 38 C.F.R. § 4.71a. Under DC 5010, arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. 38 C.F.R. § 4.71a, DC 5003. When there is limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Here, the appropriate limitation of motion codes for the knee are DC 5260 and 5261. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable (0 percent) rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. DC 5261 provides the criteria for limitation of extension of the leg. Under DC 5261, a noncompensable (0 percent) rating is assigned for limitation of extension of the leg to 0 degrees. A 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating is warranted for limitation of extension of the leg to 20 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. VA General Counsel held that a separate rating can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating. Severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. Descriptive words such as “slight,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in VA’s Rating Schedule. Thus, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply to ratings under DC 5257. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). Under DC 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent disability rating. 38 C.F.R. § 4.71a. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held, in pertinent part, that evaluation of a knee disability under DC 5257 does not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee under DC 5258, and vice versa. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). As stated in Correia v. McDonald, 28 Vet. App. 158 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Indeed, Correia stated “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Id. at 9. The Court further held that 38 C.F.R. § 4.59 required that all VA examination reports: “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” The Board finds that the VA examinations obtained for evaluating the severity of the disabilities on appeal meet this requirement. 1. Entitlement to a rating in excess of 10 percent for patellar tendinitis of the left knee. The Veteran seeks a higher disability rating for his left knee disability, currently rated as 10 percent. He filed his increased rating claim in July 2008, so the relevant appeal period is from July 2007 (one year prior to the claim) to the present. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his degenerative arthritis of the left knee. Here, there is no evidence of limitation of flexion of the left knee to 45 degrees or limitation of extension of the left knee to 10 degrees, to warrant compensable disability ratings under the appropriate limitation of motion codes for the knee. 38 C.F.R. § 4.71a, DCs 5260 and 5261. At the August 2008 VA QTC examination, the Veteran’s left knee was manifested by normal extension and flexion limited to 110 degrees with pain beginning at 110 degrees. At the February 2013 VA examination, the Veteran’s left knee was manifested by normal extension had normal ranges of motion of the left knee without pain. The VA and private treatment records document left knee pain, but do not provide any evidence contrary to that obtained at the VA examinations. The Board has considered the Veteran’s complaints of pain in the left knee. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran’s disability warrants a higher disability rating under DC 5260 or 5261. 38 C.F.R. § 4.71a. The Veteran was able to achieve the aforementioned ranges of motion of the left knee on examinations despite the presence of pain. See Mitchell, 25 Vet. App. at 32. Additionally, at the August 2008 and June 2018 VA examinations, the Veteran denied any flare-ups of the left knee. At the June 2018 VA examination, the Veteran denied any functional loss or functional impairment of the left knee joint. He did not have pain with active motion, passive motion, weight-bearing, or non-weight-bearing at the June 2018 VA examination. After repetitive-use testing with three repetitions at all of the VA examinations, the Veteran’s ranges of motion of the left knee remained unchanged. At the June 2013 VA examination, the Veteran reported flare-ups, in which use of the knee increased his pain. However, the Veteran has not described additional limitation of motion during flare-ups. Thus, the Veteran is currently receiving 10 percent for his left knee under DC 5003, for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a. In order to warrant a higher 20 percent rating under DC 5003, the evidence must establish that the Veteran’s degenerative arthritis of the left knee causes occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The Board finds that the evidence of record does not establish that the Veteran’s degenerative arthritis of the left knee causes occasional incapacitating exacerbations, to warrant a higher 20 percent rating. 38 C.F.R. § 4.71a, DC 5003. Throughout the appeal, the Veteran has described pain in his left knee. However, at no time during the appeal period has the Veteran reported that he has been incapacitated by his left knee, and the medical evidence also does not document such occurrences. At the August 2008 and June 2018 VA examinations, the Veteran denied any flare-ups of the left knee. At the June 2018 VA examination, the Veteran denied any functional loss or functional impairment of the left knee joint. He did not have pain with active motion, passive motion, weight-bearing, or non-weight-bearing. Although the Veteran reported flare-ups at the June 2013 VA examination in which use of the knee increased his pain, he did not describe additional limitation of motion lost during flare-ups or report that his flare-ups rendered him incapacitated. Furthermore, as noted above, at a subsequent VA examination, the Veteran denied any flare-ups, functional loss, or functional impairment of the left knee. The evidence does not support occasional incapacitating exacerbations of the left knee to warrant a higher 20 percent rating. 38 C.F.R. § 4.71a, DC 5003. Additionally, the Veteran is not entitled to a separate disability rating under DC 5257, as the evidence does not show any subluxation or lateral instability of the left knee. 38 C.F.R. § 4.71a. Although the Veteran reported the use of a cane occasionally at the February 2013 VA examination and a brace regularly at the June 2018 VA examination, his stability testing was normal at all three of his VA examinations. He denied any instability or giving way at the August 2008 examination. He did not use any ambulatory aids at the August 2008 examination. His gait was normal at the August 2008 examination, and the examiner found that the Veteran did not suffer from recurrent subluxation. The February 2013 examiner found that the Veteran did not have any evidence or history of recurrent patellar subluxation, to include X-ray evidence of patellar subluxation. The treatment records do not provide any evidence contrary to that obtained at the VA examinations. The Veteran is not entitled to a separate disability rating under DC 5257 for slight recurrent subluxation or lateral instability of the left knee. 38 C.F.R. § 4.71a. The remainder of the DCs pertaining to the knee and leg also do not justify a higher disability rating for the service-connected left knee disability. DC 5256 is not applicable because there is no ankylosis of the Veteran’s knee. The existence of ankylosis is not supported by the Veteran’s ranges of motion. 38 C.F.R. § 4.71a. DC 5258 is applicable where there is dislocated cartilage of the knee, and DC 5259 is applicable where there is removal of cartilage of the knee. The Veteran has not undergone left knee surgery; hence, there has not been removal of the semilunar cartilage. Examinations and treatment have shown no left knee deformity, or otherwise indicated that there is dislocation of the semilunar cartilage. 38 C.F.R. § 4.71a. The February 2013 VA examination specifically found that the Veteran did not have meniscal dislocation of the left knee or a total knee replacement. The June 2018 VA examination found that the Veteran did not have a meniscus (semilunar cartilage) condition of the left knee. DC 5262 describes malunion or nonunion of the knee. These codes have not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran’s left knee or dislocated cartilage documented. At the February 2013 VA examination, an X-ray of the left knee was unremarkable with the exception of a mild arthritis finding. The June 2018 X-ray of the left knee was unremarkable. At the February 2013 VA examination, the VA examiner found that the Veteran did not have evidence of shin splints, stress fractures, chronic exertional compartment syndrome, tibial and/or fibular impairment, meniscal condition, total knee replacement, or acquired, traumatic genu recurvatum of the left knee. At the June 2018 VA examination, the examiner found that the Veteran did not have evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, tibial and/or fibular impairment, or a meniscal condition of the left knee. The remaining medical evidence does not provide contrary evidence. DC 5263 refers to acquired, traumatic genu recurvatum, which has also not been demonstrated by the aforementioned evidence of record. Thus, these remaining DCs do not justify a higher disability rating for the service-connected left knee disability. 38 C.F.R. § 4.71a. The Board has also considered whether staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period has the service-connected left knee disability more nearly met or nearly approximated the criteria for a higher disability rating. Accordingly, staged ratings are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s competent and credible belief that his disability is worse than the assigned disability rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran’s lay statements. In sum, the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected left knee disability at any time during the appeal period. The claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee since June 14, 2018. 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee prior to March 3, 2015, and a rating in excess of 20 percent from that date. The Veteran seeks a higher disability rating for his right knee disabilities. His limitation of flexion of the right knee is currently rated as 10 percent since June 14, 2018. His degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee is currently rated as 10 percent prior to March 3, 2015, and 20 percent thereafter. He filed his increased rating claim on July 29, 2008, so the relevant appeal period is from July 29, 2007 (one year prior to the claim), to the present. By way of history, the Agency of Original Jurisdiction (AOJ) granted service connection for status post anterior cruciate ligament reconstruction with mild post-traumatic arthritis of the right knee in an August 1999 rating decision. The AOJ assigned an initial 10 percent disability rating under DCs 5261-5010. The decision states that the Veteran was being assigned the 10 percent rating based on his painful motion with X-ray evidence of arthritis in the right knee. In a May 2006 rating decision, the Veteran was assigned a temporary total rating, effective February 21, 2006, for his right knee surgery. Beginning April 1, 2006, an evaluation of 10 percent was assigned for the degenerative joint disease of the right knee, status post anterior cruciate ligament reconstruction, under DCs 5010-5260. A subsequent March 2016 rating decision granted the Veteran an increased disability rating of 20 percent for the right knee, by analogy, under DC 5258, effective March 3, 2015. A July 2018 rating decision granted a separate disability rating of 10 percent for limitation of flexion of the right knee under DCs 5003-5260, effective June 14, 2008. The rating decision states that the Veteran’s right knee would now be evaluated based on his “moderate instability with subluxation and a separate evaluation for painful flexion.” Accordingly, the Veteran’s degenerative joint disease of the right knee, status post anterior cruciate ligament reconstruction, was rated as 10 percent disabling prior to March 3, 2015, and 20 percent since March 3, 2015, under DCs 5003-5257. 38 C.F.R. § 4.71a. The Board will begin by discussing the Veteran’s current 10 percent disability rating for limitation of flexion of the left knee, effective June 14, 2018, under 38 C.F.R. § 4.71a, DCs 5003-5260. At the August 2008 VA examination, the Veteran’s right knee was manifested by normal extension and flexion limited to 110 degrees, with pain beginning at 110 degrees. After repetitive-use testing with three repetitions, the Veteran’s extension of the right knee stayed the same, but his flexion decreased to 100 degrees. In a September 2009 VA treatment record, the Veteran’s right knee was “[f]ive degrees less of full extension and about 110 degrees of flexion.” At the February 2013 VA examination, the Veteran’s right knee was manifested by flexion limited to 105 degrees and normal extension. After repetitive-use testing with three repetitions, the Veteran’s ranges of motion of the right knee remained unchanged. In a March 2015 VA treatment record, the Veteran’s right knee was limited to 110 degrees of flexion and -5 degrees (i.e., normal) of extension. At the June 2018 VA examination, the Veteran had normal ranges of motion of the right knee. After repetitive-use testing with three repetitions, the Veteran’s ranges of motion of the right knee remained unchanged. The VA and private treatment records document left knee pain, but do not provide any evidence contrary to that obtained at the VA examinations. In applying the above law to the facts of the case, the Board finds that a 10 percent rating for limitation of flexion of the right knee is warranted from July 29, 2007 (one year prior to the date of the increased rating claim), to June 13, 2018, under 38 C.F.R. § 4.71a, DC 5003. Service connection was originally granted in the August 1999 rating decision and a 10 percent rating assigned for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with painful motion. 38 C.F.R. § 4.71a, DC 5003. In this regard, X-rays were not taken at the August 2008 VA examination; however, the Veteran was diagnosed with degenerative joint disease of the right knee. At the February 2013 and June 2018 VA examinations, X-rays revealed arthritis of the right knee. The evidence does not establish that his arthritis disappeared from the time of August 1999 rating decision until the August 2008 VA examination. Throughout the appeal period, the Veteran has reported painful motion of the right knee. Thus, the Board finds that since July 29, 2007 (one year prior to his increased rating claim), the Veteran’s right knee has been manifested by degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with painful motion. This warrants a 10 percent rating under DC 5003. The Veteran’s current 10 percent disability rating for his limitation of flexion of the right knee is extended and made retroactively effective from July 29, 2007. 38 C.F.R. § 4.71a, DCs 5003-5260. However, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his limitation of flexion of the right knee at any point during the appeal period. 38 C.F.R. § 4.71a, DCs 5003-5260. There is no evidence of limitation of flexion of the right knee to 45 degrees or limitation of extension of the right knee to 10 degrees, to warrant compensable disability ratings under the appropriate limitation of motion codes for the knee. 38 C.F.R. § 4.71a, DCs 5260 and 5261. The Board has considered the Veteran’s complaints of pain in the right knee. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran’s disability warrants a higher disability rating under DC 5260 or 5261. 38 C.F.R. § 4.71a. The Veteran was able to achieve the aforementioned ranges of motion of the right knee on examinations despite the presence of pain. See Mitchell, 25 Vet. App. at 32. Additionally, at the August 2008 and June 2018 VA examinations, the Veteran denied any flare-ups of the right knee. At the June 2018 VA examination, the Veteran denied any functional loss or functional impairment of the right knee joint. He did not have pain with passive motion, weight-bearing, or non-weight-bearing at the June 2018 VA examination. After repetitive-use testing with three repetitions at the VA examinations, the Veteran’s ranges of motion of the right knee remained unchanged. The examiner noted that the Veteran had pain on active flexion, but this pain did not result in or cause any functional loss. At the June 2013 VA examination, the Veteran reported flare-ups, in which use of the knee increased his pain. However, the Veteran has not described additional limitation of motion during flare-ups. Thus, the Veteran is currently receiving 10 percent for his limitation of flexion of the right knee under DC 5003 – which pertains to degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with painful motion. 38 C.F.R. § 4.71a. In order to warrant a higher 20 percent rating under DC 5003, the evidence must establish that the Veteran’s right knee is manifested by occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The Board finds that the evidence of record does not establish that the Veteran’s limitation of flexion of the right knee causes occasional incapacitating exacerbations, to warrant a higher 20 percent rating at any point during the appeal period. 38 C.F.R. § 4.71a, DC 5003. Throughout the appeal, the Veteran has described pain in his right knee. However, at no time during the appeal period has the Veteran reported that he has been incapacitated by his right knee, and the medical evidence also does not document such occurrences. At the August 2008 and June 2018 VA examinations, the Veteran denied any flare-ups of the right knee. At the June 2018 VA examination, the Veteran denied any functional loss or functional impairment of the right knee joint. He did not have pain with passive motion, weight-bearing, or non-weight-bearing. Although the Veteran reported flare-ups at the June 2013 VA examination in which use of the knee increased his pain, he did not describe additional limitation of motion lost during flare-ups or report that his flare-ups rendered him incapacitated. Furthermore, as noted above, at a subsequent VA examination, the Veteran denied any flare-ups, functional loss, or functional impairment of the right knee. The evidence does not support occasional incapacitating exacerbations of the right knee to warrant a higher 20 percent rating for his service-connected limitation of flexion of the right knee. 38 C.F.R. § 4.71a, DCs 5003-5260. Turning to the service-connected degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee, this disability has been rated under 38 C.F.R. § 4.71a, DCs 5003, 5010, 5257, 5258, 5260, and 5261. As stated above, DC 5010 directs the rater to DC 5003. The Veteran’s separate disability rating for limitation of flexion of the right knee is based solely upon DC 5003 because the Veteran’s right knee does not warrant a separate compensable disability rating under DCs 5260 or 5261 for limitation of motion. Thus, the Board will turn its attention to DCs 5257 and 5258 for purposes of rating the degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee. 38 C.F.R. § 4.71a. Beginning with DC 5258, the Board finds that a 20 percent disability rating for the degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee is warranted from July 29, 2007, to March 2, 2015. During this period, the Veteran’s degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee was manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, which warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5258. Specifically, at the August 2008 VA examination, the Veteran denied any locking or swelling in his right knee, but objective evidence of pain was noted on examination and the Veteran reported stiffness in the right knee. In a subsequent September 2008 VA treatment record, locking and effusion of the right knee were documented. At the February 2013 VA examination, the Veteran was found to have a meniscal tear of the right knee with frequent episodes of joint pain and frequent episodes of joint effusion, but without episodes of locking. The examiner found that these symptoms were residuals of the Veteran’s prior meniscectomy. A March 3, 2015, magnetic resonance imaging (MRI) documented loose bodies and effusion of the right knee. In a March 17, 2015, VA treatment record, the Veteran’s right knee had audible and palpable “clunking and grinding” of the knee in flexion and extension. The March 2016 rating decision documents that the March 2015 MRI was the basis for the Veteran’s current 20 percent rating. In giving the Veteran the benefit of the doubt, from July 29, 2007, to March 2, 2015, his degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee was manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, which warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5258. However, the Veteran is not entitled to a disability rating in excess of 20 percent for his degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee at any time during the appeal period. The Veteran is currently in receipt of the maximum schedular disability rating of 20 percent under DC 5258. 38 C.F.R. § 4.71a. The remainder of the DCs pertaining to the knee and leg also do not justify a disability rating in excess of 20 percent for the service-connected degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee at any time during the appeal period. 38 C.F.R. § 4.71a. DC 5256 is not applicable because there is no ankylosis of the Veteran’s right knee. The existence of ankylosis is not supported by the Veteran’s ranges of motion, as described above. The June 2018 VA examiner also specifically found that the Veteran’s right knee was not ankylosed. 38 C.F.R. § 4.71a. The Veteran’s right knee is already in receipt of a rating in excess of the maximum 10 percent schedular ratings available under DCs 5259 and 5263. 38 C.F.R. § 4.71a. DC 5262 describes impairment of (malunion or nonunion) of the tibia and fibula. 38 C.F.R. § 4.71a. This code has not been raised by the medical evidence. At the February 2013 and June 2018 VA examinations, the VA examiners found that the Veteran did not have evidence of tibial and/or fibular impairment. The August 2008 VA examination also did not document any impairment of the tibia and fibula. The remaining medical evidence does not provide contrary evidence. Thus, these remaining DCs do not justify a disability rating in excess of 20 percent for the service-connected degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee at any time during the appeal period. 38 C.F.R. § 4.71a. Turning to DC 5257, the Board finds that a separate disability rating for instability of the right knee is warranted. Specifically, from July 29, 2007, to June 13, 2018, a 10 percent rating is assigned for slight recurrent lateral instability. From June 14, 2018, a 20 percent rating is assigned for moderate recurrent subluxation and lateral instability. 38 C.F.R. § 4.71a, DC 5257. Turning to the evidence, at the August 2008 VA examination, the Veteran did not use any ambulatory aids. He denied any instability or giving way. His gait and stability testing were normal. The examiner found that the Veteran did not suffer from recurrent subluxation. Objective evidence of weakness of the right knee was documented during the range of motion testing. At the February 2013 VA examination, the Veteran reported giving way and using a cane occasionally for his knee pain. Stability testing was normal. The February 2013 examiner found that the Veteran did not have any evidence or history of recurrent patellar subluxation, to include X-ray evidence of patellar subluxation. At a March 2015 VA treatment visit, the Veteran was noted to have a painful anterior drawer test (a test used for assessing instability); however, the physician did not find that the Veteran had instability, but merely that the Veteran had pain when performing the test. At the June 14, 2018, VA examination, the Veteran reported the use of a brace regularly. Joint stability testing revealed moderate recurrent subluxation of the right knee. The examiner found that the Veteran also had joint instability of the right knee. The VA and private treatment records support the examination findings and do not provide contrary evidence. Prior to June 14, 2018, the Veteran reported the use of a cane for his knee pain and giving way of the right knee. At the March 2015 VA treatment visit, the Veteran was noted to have painful instability testing. Stability testing prior to June 14, 2018, was normal and subluxation was not found. However, the Veteran’s lay statements of giving way, the objective evidence of weakness, and the use of a cane demonstrate functional impairment of the right knee. The evidence supports a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5257, for slight recurrent lateral instability of the right knee. A higher rating under DC 5257 is not warranted prior to June 14, 2018, as stability testing of the right knee was normal and subluxation of the right knee was not found. The March 2015 VA treatment record did not find that the Veteran had instability, but merely that the Veteran had pain when performing the test. The evidence dated prior to June 14, 2018, does not demonstrate that the Veteran’s right knee was manifested by moderate recurrent subluxation or lateral instability to warrant a higher 20 percent rating. 38 C.F.R. § 4.71a. Since June 14, 2018, the Veteran’s right knee has been manifested by moderate recurrent subluxation and lateral instability, which warrants a 20 percent disability rating under DC 5257. 38 C.F.R. § 4.71a. Based on stability testing performed at the June 14, 2018, VA examination, the examiner found that the Veteran’s right knee was manifested by moderate recurrent subluxation of the right knee. The Veteran reported the regular use of a brace at the examination. The examiner noted that the Veteran had increased instability over what was previously noted. This evidence supports a 20 percent disability rating, effective June 14, 2018, for moderate recurrent subluxation and lateral instability. 38 C.F.R. § 4.71a, DC 5257. However, a rating in excess of 20 percent is not warranted since June 14, 2018, as the evidence does not establish that the Veteran’s right knee subluxation and instability has been severe. 38 C.F.R. § 4.71a, DC 5257. None of the physicians who have examined the Veteran’s right knee since June 14, 2018, found that it was manifested by severe subluxation or lateral instability. Instead, as stated above, the June 14, 2018, VA examiner found the Veteran’s right knee subluxation to be moderate. At the June 2018 VA examination, the posterior instability, lateral instability, and medial instability tests of the right knee were normal. His anterior instability test was 2+ (5-10 millimeters) with 3+ (10-15 millimeters) being the worst. This evidence demonstrates that the Veteran’s right knee subluxation and instability are best characterized as moderate since June 14, 2018, which warrants his current 20 percent disability rating. Id. Finally, the Board notes that the Veteran has a separate compensable disability rating for his right knee surgical scars. He has not appealed the rating assigned for his scars, and this issue is not on appeal before the Board. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan, 451 F.3d at 1331; Washington, 19 Vet. App. at 368-69. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno, 6 Vet. App. at 465. The Veteran’s competent and credible belief that his disability is worse than the assigned disability ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran’s lay statements. In sum, a separate 10 percent rating, but no higher, is assigned for limitation of flexion of the right knee from July 29, 2007, to June 13, 2018. However, entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee since June 14, 2018, is denied. From July 29, 2007, to March 2, 2015, a higher rating of 20 percent, but no higher, for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee is granted. However, entitlement to a rating in excess of 20 percent for degenerative joint disease, status post anterior cruciate ligament reconstruction, of the right knee since March 3, 2015, is denied. A separate disability rating for instability of the right knee is also granted, and a 10 percent rating is assigned from July 29, 2007, to June 13, 2018, and a 20 percent rating is assigned since June 14, 2018. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran has not been provided with a proper duty-to-assist notice letter for his TDIU claim, nor has any development been done with respect to this claim. The AOJ implementation of the grants contained in this Board decision will affect the TDIU claim, as the Veteran does not currently meet the requirements for a schedular TDIU. The Veteran must be provided with the requisite notice and the TDIU claim must be adjudicated in the first instance upon remand. The matter is REMANDED for the following actions: 1. Provide the Veteran with notice of the requirements for entitlement to a TDIU, including VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). 2. Ask the Veteran to provide IRS tax returns from 2007 through 2018 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return,” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2007 thru 2018 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. Inform the Veteran that in the alternative, he need send in this information for the years he claims TDIU. 3. After the above development has been completed and after implementing the grants contained in this Board decision, readjudicate the TDIU issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel