Citation Nr: 18112583
Decision Date: 06/20/18	Archive Date: 06/19/18

DOCKET NO. 14-39 019
DATE:	June 20, 2018
ORDER
Entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for lumbar strain is dismissed.
Entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for right knee instability is dismissed.
Entitlement to an effective date earlier than June 27, 2016 for the grant of special monthly compensation is dismissed.
Entitlement to a disability rating in excess of 30 percent for service-connected gastroesophageal reflux disease with chronic constipation and diarrhea is denied.
Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee is denied.
Entitlement to a disability rating in excess of 10 percent for service-connected right knee instability is denied.
Entitlement to a disability rating in excess of 20 percent from August 1, 2010 to June 7, 2014 and from September 1, 2014 to November 12, 2016 for service-connected degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion is denied.
Entitlement to a 20 percent disability rating as of November 12, 2016 for service-connected degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion is granted.
Entitlement to a 10 percent disability rating from August 1, 2010 to November 11, 2016 for left knee degenerative joint disease with limited extension and painful motion is granted.
Entitlement to a disability rating in excess of 10 percent as of November 12, 2016 left knee degenerative joint disease with limited extension and painful motion is denied.
Entitlement to a separate compensable disability rating prior to July 16, 2014 for left knee instability is denied.
Entitlement to a 10 percent disability rating from July 16, 2014 to November 11, 2016 for service-connected left knee instability is granted.
Entitlement to a disability rating in excess of 20 percent as of November 12, 2016 for service-connected left knee instability is denied.
Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain is denied.
Entitlement to an effective date of August 1, 2010 for the grant of a 10 percent disability rating for left knee degenerative joint disease with painful limited motion is granted.
Entitlement to an effective date earlier than November 12, 2016 for the grant of a 20 percent disability rating for left knee instability is denied.
Entitlement to an effective date of February 23, 2010 for the grant of a 20 percent disability rating for degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion is granted.
FINDINGS OF FACT
1.  Prior to the promulgation of a decision in the appeal, the Veteran’s attorney notified the Board in an April 2018 letter that the Veteran requested a withdrawal of his appeal for the issue of entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for lumbar strain.
2.  Prior to the promulgation of a decision in the appeal, the Veteran’s attorney notified the Board in an April 2018 letter that the Veteran requested a withdrawal of his appeal for the issue of entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for right knee instability.
3.  Prior to the promulgation of a decision in the appeal, the Veteran’s attorney notified the Board in an April 2018 letter that the Veteran requested a withdrawal of his appeal for the issue of entitlement to an effective date earlier than June 27, 2016 for the grant of special monthly compensation.
4.  The Veteran’s GERD with chronic constipation and diarrhea is characterized by persistently recurring nausea, dysphagia, gas, sleep disturbance, pyrosis, and regurgitation, accompanied by chest pain, which are productive of considerable impairment of health, but does not more nearly approximate material weight loss, hematemesis or melena with moderate anemia or other symptoms indicating severe impairment of health.
5.  The Veteran’s right knee had a range of motion from zero to 90 degrees with pain, at the worst, including consideration of reduced function on repetitive motion or during flare-ups with no evidence of limitation of extension, ankylosis, dislocated semilunar cartilage with frequent periods of effusion, removal of semilunar cartilage, impairment of the tibia and fibula, or genucurvatum.
6. The Veteran’s right knee disability is manifested by slight instability.
7. The Veteran left knee disability is manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint through the entire appeal period and a separate rating for such symptoms does not constitute pyramiding.
8. The Veteran’s left knee had flexion limited to 60 degrees with objective evidence of pain, at the worst, including consideration of reduced function on repetitive motion or during flare-ups, extension limited by 10 degrees with pain, at the worst, including consideration of reduced function on repetitive motion or during flare-ups with no evidence of ankylosis, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.
9.  The Veteran’s left knee disability more closely approximates slight left knee instability from July 16, 2014 to November 11, 2014 and moderate left knee instability as of November 12, 2016.
10.  The Veteran’s lumbar strain did not more nearly approximate forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, unfavorable or favorable ankylosis of the entire thoracolumbar spine, muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour, or intervertebral disc syndrome with physician prescribed bed rest.
11.  The evidence shows that the Veteran’s left knee disability is characterized by limitation of extension to 10 degrees and limitation of motion with pain throughout the entire appeal period and the manifestations compensated under Diagnostic Code 5258 are not the same as the manifestations of limitation of motion contemplated under Diagnostic Code 5010-5260.
12.  The November 12, 2016 VA examination is the first objective evidence that demonstrates the Veteran’s left knee disability more closely approximates moderate instability.
13.  A February 23, 2010 private treatment record is the first objective evidence that shows the Veteran’s left knee disability is manifested by dislocated semilunar cartilage, frequent periods of locking, pain, and effusion.
CONCLUSIONS OF LAW
1.  The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for lumbar strain are met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
2.  The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for right knee instability are met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
3.  The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date earlier than June 27, 2016 for the grant of special monthly compensation are met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
4.  The criteria for a disability rating in excess of 30 percent for service-connected GERD with chronic constipation and diarrhea are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346.
5.  The criteria for a disability rating in excess of 10 percent for right knee degenerative joint disease are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261.
6.  The criteria for a disability rating in excess of 10 percent for right knee instability are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257.
7.  The criteria for a disability rating in excess of 20 percent from August 1, 2010 to June 7, 2014 and from September 1, 2014 to November 11, 2016 for service-connected degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258.
8.  The criteria for a 20 percent disability rating from November 12, 2016 for service-connected degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion are met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258.
9.  The criteria for a separate compensable disability rating prior to July 16, 2014 for left knee instability are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257.
10.  The criteria for a 10 percent disability rating from July 16, 2014 to November 11, 2016 for left knee instability are met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257.
11.  The criteria for a disability rating in excess 20 percent since November 12, 2016 for left knee instability are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257.
12.  The criteria for a 10 percent disability rating from August 1, 2010 to November 11, 2016 for left knee degenerative joint disease with limited extension and painful motion are met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261.
13.  The criteria for a disability rating in excess of 10 percent as of November 12, 2016 for left knee degenerative joint disease with limited extension and painful motion are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261.
14.  The criteria for an initial disability rating in excess of 10 percent for lumbar strain are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237.
15.  The criteria for an effective date of August 1, 2010 for a separate 10 percent disability limitation of extension and limitation of motion with pain are met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.
16. The criteria for an effective date earlier than November 12, 2016 for the grant of a 20 percent disability rating for left knee instability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.
17.  The criteria for an effective date of February 23, 2010 for the grant of a 20 percent disability rating for left knee degenerative joint disease with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion are met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1984 to July 2007. 
These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in June 2012 and April 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  
Withdrawals
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Prior to the promulgation of a decision in the appeal, the Veteran’s attorney notified the Board in an April 2018 letter that the Veteran wished to withdraw the issues of entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for lumbar strain, entitlement to an effective date earlier than October 12, 2010 for the grant of service connection for right knee instability, and entitlement to an effective date earlier than June 27, 2016 for the grant of special monthly compensation.  Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues.  Accordingly, the Board does not have jurisdiction to review the noted issues and the appeal is dismissed insofar as these issues are concerned.
Increased Rating
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt.  38 U.S.C. § 5107 (b). 
In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40.  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or misaligned joints, due to arthritis, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.  The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion.  DeLuca v. Brown, 8 Vet. App. 202 (1995).
A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance.  Id. at 37.  In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss.  Id. at 36.  In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0 percent disabling (i.e., noncompensable) under the applicable diagnostic code.  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion.  Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85.
1. Entitlement to a disability rating in excess of 30 percent for service-connected gastroesophageal reflux disease with chronic constipation and diarrhea
Disabilities involving the digestive system are evaluated under the regulatory criteria found at 38 C.F.R. §§ 4.110- 4.114.  The Veteran’s service-connected GERD with chronic constipation and diarrhea is currently rated as 30 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Codes 7319-7346.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, Diagnostic Code 7319 is the service-connected disorder.  The assignment of Diagnostic Code 7346 shows that the Veteran’s service-connected GERD with chronic constipation and diarrhea is rated as analogous to hiatal hernia.
Under Diagnostic Code 7346, a 10 percent evaluation is assigned when there is evidence of two or more of the symptoms for the 30 percent evaluation of less severity.  38 C.F.R. § 4.114, Diagnostic Code 7346.  A 30 percent evaluation is assigned when there is evidence of persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.
Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7358, inclusive may not be combined with each other.  A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability so warrants.  38 C.F.R. § 4.114.  Coexisting diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition, do not lend themselves to distinct and separate disability evaluations without resulting in unlawful pyramiding.  38 C.F.R. § 4.113.
Turning to the evidence of record, the Veteran underwent a VA examination in December 2010.  He reported that he continued to experience heartburn despite being on multiple medications.  He also had nausea and pyrosis.  Nausea occurred about two to three times a week.  He did not have any problems with vomiting, but he sometimes would have regurgitation.  The Veteran was previously on Prilosec, but that did not work, so he was placed on Nexium.  He was also prescribed Simethicone.  His medications helped some, but he continued to have heartburn.  The Veteran was usually able to perform his job in an operations center on base at a call center; however, he missed several days of work due to his heartburn.  The examiner observed that the Veteran was well nourished.  He had mild tenderness to palpation in the epigastric region.  There were no signs of anemia or weight loss.  
A VA examination in February 2012 reveals that the Veteran reported experiencing constipation.  He explained that he took Metamucil twice a day; however, when he would not take Metamucil, he would not have a bowel movement for three or four days.  The Veteran noted he experienced bouts of diarrhea that would occur every two or three months.  Other symptoms included bloating, abdominal distension, and flatulence.  The examiner documented that the Veteran experienced alternating diarrhea and constipation and abdominal distension.  The Veteran had occasional episodes of bowel disturbance with abdominal distress.  The examiner determined that the Veteran did not have weight loss or malnutrition attributable to an intestinal condition.
The Veteran underwent another VA examination in November 2016.  He reported that he still had issues despite taking Nexium.  He also experienced side effects of constipation from Nexium.  The Veteran experienced nausea in the morning if he did not drink something hot.  He also experienced a lot of gas in his stomach.  The Veteran reported a burning taste in his throat and he experienced chest pains due to gas buildup.  He used Nexium and Simethicone to treat his stomach disorder.  The examiner determined that the Veteran experienced the following symptoms due to his service-connected GERD: symptoms productive of considerable impairment of health, persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance (four or more times per year that last less than a day), and nausea (four or more times per year that last less than a day).  The Veteran did not have esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus.  The examiner observed that the Veteran was bloated and he was tender to palpation over the mid-epigastrum.  The Veteran also belched throughout the examination. 
Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran’s symptoms more closely approximate the current 30 percent disability rating for the entire appeal period.  Specifically, the medical and lay evidence of record reflects that the Veteran’s GERD with chronic constipation and diarrhea results in nausea, dysphagia (difficulty swallowing), pyrosis (heartburn), regurgitation, gas buildup, and substernal pain.  See VA examinations dated in December 2010 and November 2016.  As discussed above, the November 2016 VA examiner determined that the symptoms of the Veteran’s service-connected digestive disorder consisted of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance (four or more times per year that last less than a day), and nausea (four or more times per year that last less than a day) and that these symptoms were productive of considerable impairment of health.  Thus, the overall evidence reflects that the Veteran’s GERD with constipation and diarrhea is manifested by persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.
In finding that a 30 percent rating is warranted, the Board declines to grant a 60 percent rating.  The December 2010 VA examiner documented that the Veteran was well nourished and his GERD with constipation and diarrhea did not result in anemia or weight loss.  The medical records to include the VA examinations in February 2012 and November 2016 also do not reflect that the Veteran’s GERD includes symptoms of material weight loss, hematemesis, or melena with moderate anemia.  The examiner in November 2016 determined that the current severity of the Veteran’s GERD is considered moderate as symptoms persist despite medications and it impacts work and functions.  There is nothing in the record that would indicate the Veteran’s GERD has more nearly approximated the above symptoms or others productive of severe impairment of health.  Therefore, the criteria for a 60 percent disability rating have not been met. 
The Board has considered whether staged ratings are appropriate. The evidence of record shows that the Veteran’s manifestations of GERD have not fluctuated materially during this appeal. As such, a staged rating is not warranted.  
Finally, it is not possible to assign separate disability evaluations for the GERD and chronic constipation and diarrhea under both Diagnostic Code 7319 and Diagnostic Code 7346 because doing so constitutes impermissible pyramiding.  See 38 C.F.R. § 4.113.
2. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee.
3.  Entitlement to a disability rating in excess of 10 percent for service-connected right knee instability.
The Veteran filed an increased rating claim for his service-connected right knee disability in October 2010.  He asserts that his right knee disability results in locking pain with swelling and lateral instability.  
The Veteran’s service-connected degenerative joint disease of the right knee is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27.  The additional code is shown after the hyphen.  In this case, Diagnostic Code 5010 is used to identify that the Veteran’s degenerative arthritis is service-connected under arthritis.  See 38 C.F.R. §§ 4.20, 4.27.  The symptoms of degenerative arthritis of the right knee is rated under Diagnostic Code 5061 based on limitation of extension of the knee.
Under Diagnostic Code 5261, extension limited to 5 degrees is noncompensable.  Extension limited to 10 degrees is evaluated as 10 percent disabling.  A 20 percent disability rating is warranted when extension is limited to 15 degrees.  Extension limited to 20 degrees is evaluated as 30 percent disabling.  A 40 percent disability rating is assigned when extension is limited to 30 degrees and a 50 percent disability rating is assigned when extension is limited to 45 degrees.
Limitation of motion of the knee is also evaluated under Diagnostic Code 5260, which evaluates limitation of flexion.  Pursuant to Diagnostic Code 5260, a 10 percent disability rating is warranted when flexion is limited to 45 degrees.  A 20 percent disability rating is warranted when flexion is limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 
The Board observes that the VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of, or overlapping with, the symptomatology” of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 
A claimant who has arthritis or limitation of motion and instability of a knee, may be rated separately under Diagnostic Codes 5003 and 5257. Any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). Separate ratings under Diagnostic 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same knee; however, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004). 
Additionally, the United States Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under Codes 5257 or 5261 (and by Code 5260) or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Codes 5258 or 5259. Lyles v. Shulkin, 23 Vet. App. 107 (2017).  Entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different code.  In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca, 8 Vet. App. at 202.  Id. 
The Veteran is also in receipt of a separate 10 percent disability rating under Diagnostic Code 5257 for right knee instability.  This diagnostic code provides that recurrent subluxation or lateral instability of the knee that is slight warrants a 10 percent disability.  Moderate recurrent subluxation or lateral instability warrants a 20 percent disability rating and severe subluxation or lateral instability warrants a 30 percent disability rating.  The words “slight,” “moderate” and “severe” are not defined in the VA Schedule.  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.  It should also be noted that use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.
Turning to the evidence of record, the Veteran underwent a VA examination in December 2010.  He reported an injury to the right knee during service that resulted in arthroscopy that revealed a meniscal tear.  He continued to experience right knee pain with swelling.  The examiner noted that the Veteran did not have locking or instability.  The Veteran reported that his right knee disability did not affect his usual occupation, although he had to wear a knee brace.  He stated that he had difficulty driving for long periods of time with his knee hurting him.  He denied flare-ups of the right knee.  Physical examination revealed a normal gait and he walked unassisted.  The right knee extended to 180 degrees and flexed to 90 degrees.  Range of motion of the right knee did not change after several repetitions.  He did not have end of range pain during the range of motion testing.  He had crepitus in the right knee.  The right knee was tender to palpation in the medial and lateral aspect of the patella on his right knee.  There was no instability of the right knee.  Drawer sign was negative.  The examiner noted that a July 2002 MRI report of the right knee showed chronic ACL tear with associated peripheral medical meniscal tear and MCL strain.  There was most likely a prior tear to the lateral collateral ligament with mild chronic scarring.  
A February 2012 VA examination report reflects that flexion of the right knee was to 100 degrees and extension was full to zero degrees.  X-rays in December 2010 showed mild degenerative joint disease of the right knee. 
The Veteran underwent another VA examination in July 2014.  The Veteran reported occasional right knee pain.  He stated that he had flare-ups of throbbing deep pain that impact the function of the knee.  Right knee flexion was 140 degrees or greater with objective evidence of painful motion that began at 120 degrees.  Right knee extension was to zero degrees with no objective evidence of painful motion.  The Veteran did not have additional limitation in range of motion of the knee following repetitive use testing.  The Veteran had functional loss or functional impairment of the right knee due to pain on movement and disturbance of locomotion.  The right knee was tender to palpation in the joint line or soft tissue.  Muscle strength testing was normal.  Right knee demonstrated anterior instability of 1+ (0-5 millimeters).  There was no evidence of posterior instability or medial-lateral instability of the right knee.  The examiner determined that the impact of the Veteran’s knee disability was that it was painful to squat down or lift more than 20 pounds.  Pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups and during repeated use of the joints.  The examiner stated any limitation of range of motion on repetitive use or during flare-ups could not be estimated without resorting to mere speculation, because there was no conceptual or empirical basis for making such determination without directly observing function under these conditions.
Most recently the Veteran’s right knee disability was evaluated during a November 2016 VA examination.  The Veteran reported multiple surgeries on both knees.  At the time of the examination, he experienced ongoing pain and swelling.  He wore a brace.  He had to ice the knees especially after swelling from prolonged walking.  The Veteran stated that he had to call out from work at times due to pain and swelling.  Anti-inflammatories would help a little.  He also noted that his knees sometimes felt like they would give out.  The Veteran reported flare-ups of the knee to include swelling, stiffness, aches, and popping with movement.  He explained that he had trouble with climbing and crawling over things and with prolonged standing or walking.  He was unable to kneel especially on hard surfaces.
Physical examination revealed flexion of the right knee was limited to 115 degrees.  Extension was to zero degrees.  Pain on both sides of the patella contributed to functional loss.  Pain was exhibited on flexion and extension.  There was evidence of pain with weight bearing.  Both sides of the patella were tender to palpation.  There was no objective evidence of crepitus.  There was no additional function loss or range of motion after three repetitions.  Pain and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups; however, there was no change in the range of motion of the right knee after repetitive use testing and flare-up.  The examiner observed that the Veteran’s right knee had less movement than normal, swelling, instability of station, disturbance in locomotion, interference with sitting, and interference with standing.  Muscle strength of the right knee was normal.  There was no evidence of ankylosis.  The examiner documented that the Veteran had joint instability of the right knee.  Anterior instability was 1+ (0-5 millimeters).  Posterior instability, medial instability, and lateral instability tests were normal.  The examiner observed that the Veteran had arthroscopic surgery on the right knee in 2005 with residuals of pain, swelling, popping, and instability.  The Veteran regularly used a right knee brace.  The Veteran’s knee disability would limit prolonged standing, walking, lifting, carrying, bending, kneeling, crawling, and climbing.  The examiner concluded that the current severity of the knees were moderate to severe as range of motion was limited and it affected function and ability to work. 
In this case, extension of the right knee was normal throughout the appeal period even with consideration of pain, after repetitive motion, and consideration of any additional loss of motion on repetitive use or during flare-ups.  Flexion of the Veteran’s right knee was at the worst limited to 90 degrees with consideration of pain even after repetitive motion and consideration of any additional loss of motion on use or during flare-ups. Thus, the Veteran is not entitled to a disability rating in excess of 10 percent for his right knee disability under Diagnostic Code 5261 or 5260 at any time during the appeal period.
The Board observes that the Veteran’s current separate 10 percent disability rating is based on X-ray evidence of degenerative joint disease and pain that results in limitation of motion pursuant to 38 C.F.R. § 4.59 and Diagnostic Codes 5003 and 5010.  See November 2007 rating decision.  If the limitation of motion is noncompensable under the appropriate diagnostic codes (in this case, under Diagnostic Code 5260 and 5261, which evaluate limitation of the motion of the knee), VA regulation provides that a rating of 10 percent may be applied for arthritis established by X-ray findings for each such major joint or group of minor joints affected by limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).  X-ray evidence of involvement of two or more major joint or 3 or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent disability rating.  Id.  The Veteran is not entitled to a 20 percent disability rating as there is only one major joint affected, the right knee.
The Board notes that in April 2018 the Veteran’s attorney asserted that the Veteran is entitled to a 10 percent rating for limitation of flexion and 10 percent rating for limitation of extension associated with degenerative joint disease of the right knee pursuant to 38 C.F.R. § 4.59 due to pain causing functional loss in both flexion and extension.  However, separate ratings may only be awarded for compensable limitation of flexion and limitation of extension of the same knee joint.  See VAOPGCPREC 09-04.  In this case, reduced range of motion in flexion or extension of the right knee are not compensable under Diagnostic Codes 6260 and 6261.  Thus, another separate 10 percent rating for limitation of flexion due pain is not warranted pursuant to 38 C.F.R. § 4.59 and 5003.
With respect to whether the Veteran is entitled to a separate disability rating in excess of 10 percent for right knee instability, the Board notes that the evidence shows that the right knee demonstrated anterior instability of 1+ (0-5 millimeters) during the July 2014 and November 2016 VA examinations.  The Board notes that +1 means that the physician determined that the Veteran had mild laxity.  See THE MERCK MANUAL OF DIAGNOSIS AND THERAPY, INJURIES AND POISONINGS, FRACTURES, DISLOCATIONS AND SPRAINS.  The December 2010 VA examination and VA treatment records indicate that the Veteran did not have instability of the right knee.  However, the Veteran reported experiencing instability of the right knee in his October 2010 claim for an increase disability rating.  Specifically, the Veteran reported during the November 2016 VA examination that sometimes his knee felt like it would give out.  Based on the level of laxity found on the physical examinations in July 2014 and November 2016 and that the Veteran’s reported symptom that he sometimes experienced giving way of the knee, the Board concludes that the Veteran’s right knee instability more closely approximates slight.  Accordingly, a disability rating in excess of 10 percent for right knee instability is not warranted at any time during the appeal period.  
The Board has also considered whether the Veteran is entitled to a separate 20 percent disability rating for his right knee disability under Diagnostic Code 5258 for dislocation of the semi-lunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  Diagnostic Code 5258 uses the conjunctive “and” when listing the criteria, therefore, a rating under this code requires that all symptoms be present.  Specifically, a December 2010 VA examination report reflects that the Veteran was diagnosed with chronic right knee medial meniscus tear.  However, the diagnosis was based on an MRI conducted in 2002.  The examiner documented that the Veteran reported that he would sometimes experience swelling, but he denied “locking” of the knee.  The other medical evidence of record reflects that the Veteran did not have dislocation of the semi-lunar cartilage (meniscus) during the relevant appeal period and there was no evidence of frequent episodes of joint “locking” or frequent episodes effusion in the right knee.  In light of the foregoing, the criteria for a separate 20 percent disability rating under Diagnostic Code 5258 for the right knee have not been met at any time during the appeal period.
Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5259, 5262 or 5263.  However, the Veteran’s right knee disability is not manifested by ankylosis, symptomatic removal of semilunar cartilage, any impairment of the tibia and fibula, or genu recurvatum.  Accordingly, Diagnostic Codes 5256, 5259, 5262 and 5263 are not applicable in this case. 
The above determination is based on consideration of the applicable provisions of VA’s rating schedule.  In an April 2018 letter in support of the appeal, the Veteran’s attorney asserts that an extraschedular rating for the Veteran’s right knee is warranted.  He contends that the November 2016 VA examination supports significantly more functional loss than the 20 percent disability rating assigned for instability of the right knee and loss of motion due to arthritis.  
According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the Director of Compensation Service or his or her delegate is authorized to approve based on the criteria set forth in 38 C.F.R. § 3.321(b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability.  38 C.F.R. § 3.321 (b)(1).  The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization.  See 38 C.F.R. § 3.321 (b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating.
In this case, the evidence does not show such an exceptional disability picture that the available schedular ratings for the service-connected degenerative joint disease of the right knee are inadequate.  A comparison between the level of severity and symptomatology of the Veteran’s right knee disability with the established criteria found in the rating schedule for knee disabilities show that the rating criteria reasonably describes the Veteran’s disability level and symptomatology.  The rating criteria considers the functional impact of the Veteran’s right knee disability to include consideration of pain on movement, swelling, disturbance of locomotion, and instability.  The evidence of record does not indicate it has caused marked interference with employment that is not already contemplated in the rating schedule.  Furthermore, the evidence of record does not show that his service-connected right knee disability has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability.  Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted.
4. Entitlement to a disability rating in excess of 20 percent from August 1, 2010 to June 7, 2014 and from September 1, 2014 to November 12, 2016 and a compensable disability rating as of November 12, 2016 for service-connected degenerative joint disease of the left knee with dislocated semilunar cartilage, frequent episodes of “locking,” pain, and effusion.
5.  Entitlement to a compensable disability rating prior to November 12, 2016 and a disability rating in excess of 10 percent as of November 12, 2016 for painful limited motion of the left knee.
6.  Entitlement to a compensable disability rating prior to November 12, 2016 and a disability rating in excess of 20 percent as of November 12, 2016 for service-connected left knee instability.
The RO assigned the Veteran three separate ratings for his service-connected left knee disabilities during the relevant appeal period.  Specifically, his left knee disability was evaluated under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint from August 1, 2010 to June 26, 2010 and from September 1, 2014 to November 11, 2016.  
As of November 12, 2016, the Veteran’s degenerative joint disease of the left knee was evaluated as 10 percent disabling under Diagnostic Code 5260 for limitation of flexion.  His left knee disability also was assigned a separate 20 percent disability rating under Diagnostic Code 5257, for moderate instability as of November 12, 2016.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  
Turning to the evidence of record, a private surgical note dated in June 2010 reveals that the Veteran underwent left knee arthroscopy, partial medial meniscectomy, and medial femoral chondroplasty.  A November 2013 VA treatment record reveals that the Veteran reported experiencing a lot of popping and swelling of the knees.    
The Veteran underwent a VA examination in December 2010.  The Veteran noted that he had left knee arthroscopy in June 2010.  The Veteran stated that his left knee was much worse than the right knee.  He experienced flare-ups in the left knee twice a week that would last about one day.  He wore a knee brace on the left knee.  
Physical examination revealed a normal gait and he walked unassisted.  Left knee extended to 180 degrees and flexed to 90 degrees.  This stayed the same after several repetitions.  He did not have end of range pain during the range of motion testing.  He had crepitus in the left knee.  There was no instability of the left knee.  Drawer sign was negative.  The examiner noted that a May 2010 MRI report of the left knee showed anterior cruciate ligament repair with evidence suggesting that it was at least partially torn, a tear of the posterior horn medial meniscus and osteoarthritis changes involving the medial compartment of the knee. 
A February 2012 VA examination report reflects that flexion of the left knee was limited to 90 degrees and it lacked 10 degrees of full extension.  X-rays of the left knee in January 2011 showed degenerative joint disease and postsurgical changes at the ACL.  
The Veteran underwent another VA examination in July 2014.  He reported that he has had four surgeries on his left knee.  In the last year, the Veteran fell on a treadmill resulting in a new left knee meniscus tear.  He had arthroscopic surgery in June 2014.  The Veteran reported currently undergoing physical therapy.  He experienced daily left knee pain.  He stated that he had flare-ups of throbbing deep pain that impacted the function of the knee.  Left knee flexion was to 120 degrees with objective evidence of painful motion that began at 100 degrees.  Left knee extension was to zero degrees with no objective evidence of painful motion.  The examiner determined that the Veteran did not have additional limitation in range of motion of the knee following repetitive use testing.  The Veteran had functional loss or functional impairment of the left knee due to less movement than normal, pain on movement, swelling, instability of station, and disturbance of locomotion.  The left knee was tender to palpation for the joint line or soft tissue.  Muscle strength testing was normal.  Left knee demonstrated anterior instability of 1+ (0-5 millimeters).  There was no evidence of posterior instability or medial-lateral instability of the left knee.  The examiner noted that the Veteran had a meniscus condition of the left knee to include meniscal tear with frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of effusion.  The examiner documented that the Veteran had a partial meniscectomy in 2014 with residual signs and symptoms due to the meniscectomy.  The impact of the Veteran’s knee disability was that it was painful to squat down or lift more than 20 pounds.  Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and during repeated use of the joints.  The examiner stated any limitation of range of motion could not be estimated without resorting to mere speculation, because there was no conceptual or empirical basis for making such determination without directly observing function under these conditions.
Most recently the Veteran’s left knee disability was evaluated during a November 2016 VA examination.  The Veteran reported multiple surgeries on both knees.  At the time of the examination, he experienced ongoing pain and swelling.  He wore a knee brace.  He had to ice the knees especially after swelling from prolonged walking.  The Veteran stated that he had to call out from work at times due to pain and swelling.  Anti-inflammatories helped a little.  He also noted that his knees sometimes felt like they would give out.  The Veteran reported flare-ups of the knee to include swelling, stiffness, aches, and popping with movement.  He explained that he had trouble with climbing and crawling over things and with prolonged standing or walking.  He was unable to kneel especially on hard surfaces.
Physical examination revealed flexion of the left knee was limited to 100 degrees.  Extension was to zero degrees.  Pain on both sides of the patella contributed to functional loss.  Pain with motion started at about 60 degrees flexion.  The examiner observed cracking and popping with motion.  Pain was exhibited on flexion and extension.  There was evidence of pain with weight bearing.  Both sides of the patella were tender to palpation.  There was no objective evidence of crepitus.  There was no additional function loss or range of motion after three repetitions.  Pain and lack of endurance significantly limit functional ability with repeated use over time and during flare-ups; however, there was no change in the range of motion of the left knee after repetitive use testing and during flare-up.  The examiner observed that the Veteran’s left knee had less movement than normal, swelling, instability of station, disturbance in locomotion, interference with sitting, and interference with standing.  Muscle strength of the left knee was normal.  There was no evidence of ankylosis.  The examiner documented that the Veteran had joint instability of the left knee.  Medial instability was 2+ (5-10 millimeters).  Anterior instability, posterior instability, and lateral instability tests were normal.  The examiner documented that Veteran has now or in the past a meniscus condition of the left knee to include meniscal tear with frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of effusion.  The examiner noted that the Veteran has had meniscal tear, status post surgical repair and now the Veteran experiences popping with movement, locking, swelling, and pain.  The Veteran has had three arthroscopic and ACL reconstruction.  The Veteran regularly uses a right knee brace.  The Veteran’s knee disability limits prolonged standing, walking, lifting, carrying, bending, kneeling, crawling, and climbing.  Current severity is moderate to severe as range of motion is limited and it affects function and ability to work. 
The Board notes that the November 2016 rating decision severed a separate rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint under Diagnostic Code 5258 based on the belief that compensation under Diagnostic Codes 5255, 5357 and 5260 would be impermissible pyramiding pursuant to 38 C.F.R. § 4.14.  However, as noted above, the Court clarified that separate evaluations under Diagnostic Code 5257 and 5258 (or Diagnostic Code 5259), as well as, limitation of movement, such as expressed in Diagnostic Codes 5260 or 5261, are not precluded as a matter of law.  See Lyles v. Shulkin, 29 Vet. App. 107 (2017).
Diagnostic Codes 5257, 5258 and 5010 may apply to different disabilities or to different manifestations of the same disability.  In this case, Diagnostic Code 5258 relates to damage or deterioration to cartilage and Diagnostic Code 5003 deals with deterioration of the bone, including development of osteophytes as confirmed by x-ray.  In this case, the manifestations compensated under Diagnostic Code 5258 are not the same as the manifestations of limitation of motion contemplated under Diagnostic Code 5010-5260.  The Veteran’s symptoms of “locking” and effusion are not adequately evaluated under Diagnostic Code 5010-5260 for painful motion. Furthermore, Diagnostic Code 5257 expressly covers evaluation of recurrent subluxation and lateral instability of the knee “without reference” to any other manifestations.  See Lyles, 29 Vet. App. at 117; VAOPGCPREC 23-97 (July 1, 1997).  Thus, the rule against pyramiding is not violated, in this case, for the Veteran to receive separate disability ratings under Diagnostic Codes 5257, 5258, and 5010-5260.  Accordingly, the Board finds that the Veteran is entitled to a separate 20 percent disability rating under Diagnosed Code 5258 as of November 12, 2016. 
As noted above, the RO granted a separate 10 percent based on X-ray evidence of degenerative joint disease and pain that results in limitation of motion of the left knee that is noncompensable under Diagnostic Code 5260 and 5261 pursuant to 38 C.F.R. § 4.59 and Diagnostic Codes 5003 and 5010.  See November 2016 rating decision.  If the limitation of motion is noncompensable under the appropriate diagnostic codes (in this case, under Diagnostic Code 5260 and 5261, which evaluate limitation of the motion of the knee), VA regulation provides that a rating of 10 percent may be applied for arthritis established by X-ray findings for each such major joint or group of minor joints affected by limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).  X-ray evidence of involvement of two or more major joint or 3 or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent disability rating.  Id.  The Veteran is not entitled to a 20 percent disability rating as there is only one major joint affected, the left knee.  
The Board has considered whether the Veteran is entitled to a compensable disability rating prior to November 12, 2016 and a disability rating in excess of 10 percent as of November 12, 2016 for limitation of motion of the left knee.  
In this case, a February 2012 VA examination report reflects that extension of the left knee was limited by 10 degrees indicating that at that time the Veteran met the requirement for a 10 percent disability rating under Diagnostic Code 5261.  The Board notes that extension of the left knee was normal with evidence of pain on movement and less movement than normal on repetitive use testing in VA examinations dated in December 2010, July 2014, and November 2016.  Flexion of the left was at the worst limited to 60 degrees with consideration of pain even after repetitive motion and consideration of any additional loss of motion on repetitive use or during flare-ups throughout the entire appeal period.  Thus, the evidence reflects that the symptoms of the Veteran’s left knee disability more closely approximates a 10 percent disability for limitation of extension and limitation of motion with pain under Diagnostic Codes 5010 and 5261 throughout the entire appeal period.  
The Board notes that in April 2018, the Veteran’s attorney asserted that the Veteran is entitled to a 10 percent rating for limitation of flexion and 10 percent rating for limitation of extension associated with degenerative joint disease of the left knee pursuant to 38 C.F.R. § 4.59 due to pain causing functional loss in both flexion and extension.  However, separate ratings may only be awarded for compensable limitation of flexion and limitation of extension of the same knee joint.  See VAOPGCPREC 09-04.  In this case, the Veteran’s limitation in flexion is not compensable under Diagnostic Code 5260.  Thus, another separate 10 percent rating for limitation of flexion due pain is not warranted pursuant to 38 C.F.R. § 4.59 and 5010 at any time during the appeal period.
With respect to whether the Veteran is entitled to a separate compensable disability rating prior to November 12, 2016 and a separate disability rating in excess of 20 percent for left knee instability, the Board observes that a November 2010 VA treatment record and a December 2010 VA examination report reveals the Veteran did not have instability of the left knee.  Thereafter, the evidence shows that the left knee demonstrated anterior instability of 1+ (0-5 millimeters) during the July 2014 VA examination and medial instability of 2+ (5-10 millimeters) during the November 2016 VA examination.  The Board notes that +1 means that the physician determined that the Veteran had mild instability and 2+ means that the physician determined that the Veteran had moderate instability.  See THE MERCK MANUAL OF DIAGNOSIS AND THERAPY, INJURIES AND POISONINGS, FRACTURES, DISLOCATIONS AND SPRAINS.  Furthermore, the Veteran reported during the November 2016 VA examination that sometimes his knee felt like it would give out.  Based on the level of instability found on physical examinations in July 2014 and November 2016 and that the Veteran’s reported symptoms that he sometimes experienced giving way of the knee, the Board concludes that the Veteran’s left knee instability more closely approximates slight instability as of July 16, 2014 and moderate as of November 12, 2016. The evidence in the claims file does not indicate that the Veteran’s left knee instability more closely approximates severe instability. 
The Board notes that prior to the July 2014 VA examination, the Veteran reported experiencing instability of the left knee as part of his October 2010 claim for an increase disability rating.  The Board finds that this lay statement is credible.  Nonetheless, although lay persons are competent to provide opinions on some medical issues, the clinical diagnosis of joint instability falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The diagnosis of joint instability and recurrent subluxation are not within the ability of a lay person to diagnose, because a competent medical expert cannot diagnose it based on reported symptoms alone and requires specialized testing beyond ordinary clinical evaluation.  Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (a diagnosis by laboratory testing is distinctly not within the realm of common lay knowledge).  Specifically, joint instability is diagnosed by Lachman’s test, drawer test, and varus/valgus test.  The Veteran has not contended, nor does the evidence show, that he has the medical expertise required to conduct or interpret such tests.  Thus, the Board finds that the Veteran’s reports of the knees giving way and experiencing instability of the left knee are not a valid lay diagnosis of instability.  Furthermore, the Board finds that the specific findings of trained health care professionals based on testing are more probative than the lay evidence on the issue of instability and the Veteran is not entitled to a separate disability rating under Diagnostic Code 5257 prior to July 16, 2014.
Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5259, 5262 or 5263.  However, the Veteran’s left knee disability is not manifested by ankylosis, symptomatic removal of semilunar cartilage, any impairment of the tibia and fibula, or genu recurvatum.  Accordingly, Diagnostic Codes 5256, 5259, 5262 and 5263 are not applicable in this case. 
7. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain.
The Veteran’s service-connected lumbar strain is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71, Diagnostic Code 5237.  Under Diagnostic Code 5237 (lumbosacral strain), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned under Diagnostic Code 5237 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating.  A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.
Under 37 C.F.R. § 4.71a, Plate V, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Note (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  Id., Note (1).
Turning to the evidence of record, a July 2012 VA examination report reveals that the Veteran reported that he experienced flare-ups during which he had difficulty bending, reaching, and lifting.  Physical examination revealed forward flexion was limited to 70 degrees with objective evidence of painful motion beginning at 70 degrees.  Extension was to 30 degrees or greater with objective evidence of painful motion beginning at 30 degrees or greater.  Right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were 30 degrees or more with objective evidence of painful motion beginning at 30 degrees or more.  The Veteran was able to perform repetitive-use testing with three repetitions.  He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing.  The Veteran did not experience functional loss, functional impairment after repetitive use due to less movement than normal, and pain on movement.  There was evidence of mild mid lower lumbar tenderness.  There was no evidence of guarding or muscle spasm of the thoracolumbar spine.  Muscle strength testing was normal and there was no evidence of muscle atrophy.  Deep tendon reflexes and sensory examinations were normal.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine condition.  The examiner determined that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. 
The Veteran was provided with another VA examination in November 2016.  The Veteran reported that he experienced flare-ups.  He described the flare-ups as tightness, stiffness, and aches.  He used a TENs unit at home after he completed therapy.  He worked out in the elements for construction sites and walking, climbing, and bending aggravated the back and caused flare-ups.  He had to use a TENs unit three to four times per week.  He also took time off from work due to the pain.  
Physical examination revealed forward flexion was limited to 90 degrees.  Extension was limited to 25 degrees.  Right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were to 30 degrees.  The examiner documented that the Veteran experienced pain with all motion, but especially to the back.  The examiner noted that the Veteran’s pain caused functional loss.  There was evidence of pain with weight-bearing.  The small of the Veteran’s back was tender to palpation.  The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions.  The examiner noted that the Veteran was examined immediately after repetitive use over time.  Pain and fatigue significantly limited functional ability with repeated use over time; however, there was no change in terms of range of motion.  The examiner determined that pain and fatigue significantly limited functional ability with flare-ups; however, the examiner was unable to provide range of motion results during a flare-up, because the Veteran did not have a flare-up during the examination.  There was evidence of guarding or muscle spasm, but it did not result in abnormal gait or abnormal spinal contour.  Muscle strength testing was normal and there was no evidence of muscle atrophy.  Deep tendon reflexes and sensory examinations were normal.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine condition.  He did not have intervertebral disc syndrome of the thoracolumbar spine or ankylosis of the spine.  The examiner determined that the current severity of his lumbar strain was moderate as it affected his function and ability to work.  
Based on the evidence of record, the most pertinent discussed above, the Board finds that at the worst forward flexion of the Veteran’s thoracolumbar spine was limited to 70 throughout the appeal period with consideration of pain and repetitive use testing.  The thoracolumbar spine was not limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine was greater than 120 degrees even with consideration of limitation of motion due to pain and any limitation in function after repetitive use.  Furthermore, the medical evidence reveals that the Veteran’s muscle spasms did not result in abnormal gait or spinal contour.  Furthermore, the evidence shows that the Veteran’s lumbar strain is not manifested by favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire thoracolumbar spine. Thus, the Veteran’s lumbar strain does not warrant a rating higher than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine at any time during the appeal period 
The Board has determined that the Veteran is not entitled to a higher disability rating under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes.  In this regard, a 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The medical evidence shows that the Veteran’s service-connected back disability is not manifested by IVDS and did not result in any incapacitating episodes with physician prescribed bed rest as described in the regulations.  See Id. at Note (1).
The Board has also considered whether the Veteran is entitled to a separate disability rating under other Diagnostic Codes.  Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1, any associated objective neurological abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code.   The evidence reflects that the Veteran did not have any neurological problems due to his thoracolumbar spine disability to include radiculopathy in the bilateral lower extremities, bladder impairment, or bowel impairment.  Thus, the Veteran is not entitled to a separate disability rating for bowel impairment, bladder impairment or any other neurological disability.
Earlier Effective Date
The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R.     § 3.400.
Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.  Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service.  Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later.
VA law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. 
VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  In this case, the Veteran filed an increased rating claim for his service-connected left knee disability in October 2010.  During the appeal, the Veteran was granted a separate 10 percent disability rating from July 14, 2014 and 20 percent disability as of November 12, 2016 for left knee instability and a separate 10 percent disability rating for limitation of motion of the left knee under Diagnostic Codes 5010 and 5261.  These separate ratings are considered part of the Veteran’s claim for an increased disability rating for his left knee.  As the original increased rating claim for a left knee disability was filed prior to March 24, 2015, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied.
Under prior regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (a).
There is no set form that an informal written claim must take.  All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).  Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).
By way of history, the RO received the Veteran’s original service connection claim for a left knee disability on August 3, 2007.  In the November 2007 rating decision, the RO granted service connection for degenerative joint disease and residuals of left knee injury and surgery and assigned a 10 percent rating, effective August 1, 2007.  The Veteran did not appeal the assigned disability rating within one year of the rating decision.  The Veteran did not submit any correspondence or evidence indicating an increase in the Veteran’s left knee disability from the November 2007 rating decision to October 13, 2010.  On October 13, 2010, the RO received the Veteran’s claim for an increased rating for his service-connected left knee disability.  In the June 2012 rating decision, the RO assigned a 100 percent disability rating from June 8, 2010 to August 1, 2010 for convalescence after left knee surgery.  Thereafter, a 10 percent disability rating was assigned for x-ray evidence of arthritis along with painful motion of the knee joint.  The Veteran field a notice of disagreement with respect to his left knee claim in June 2013.  In an August 2014 rating decision, the RO increased the Veteran’s left knee disability rating to 20 percent effective August 1, 2010, a 100 percent disability rating from June 27, 2014 to September 1, 2014, and a 20 percent disability as of September 1, 2014 under Diagnostic Code 5258.  The Veteran field a notice of disagreement with this decision with respect to the effective date of the award and the evaluation of the left knee disability in November 2014.  Thereafter, the RO severed the 20 percent disability rating under Diagnostic Code 5258 for his left knee as of November 12, 2016 and granted a 10 percent disability rating for painful limited motion and a separate 20 percent disability rating for left knee instability, both effective November 12, 2016.  
8.  Entitlement to an effective date earlier than November 12, 2016 for the grant of a 10 percent disability rating for left knee degenerative joint disease with painful limited motion.
The Veteran seeks an effective date earlier than November 12, 2016 for the award of a separate 10 percent disability rating for limited motion of the left knee.  The Board notes that the Veteran’s left knee was originally evaluated as 10 percent disabling for painful limited motion at the time of his claim for an increased disability rating for the left knee in October 2010 and the RO severed this rating in an August 2014 rating decision.  As discussed in more detail in the decision above, the evidence shows that the Veteran’s left knee disability more closely approximates a 10 percent disability for limitation of extension and limitation of motion with pain under Diagnostic Codes 5010 and 5261 throughout the entire appeal period and the Board determined that the manifestations compensated under Diagnostic Code 5258 are not the same as the manifestations of limitation of motion contemplated under Diagnostic Code 5010-5260.  Thus, the Veteran’s separate disability rating for limited motion of the knee under Diagnostic Code 5010 and 5260 should be restored.  Accordingly, the effective date of August 1, 2010 for a separate 10 percent disability for left knee degenerative joint disease with limitation of extension and painful motion under Diagnostic Codes 5010 and 5261 is warranted.  
The Board notes that the earliest possible effective date for the award of the separate 10 percent disability rating for painful limited motion is October 13, 2009.  See 38 U.S.C. § 5110 (a) and 38 C.F.R. § 3.400 (o)(2) (If, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). However, the Veteran is already in receipt of a 10 percent disability rating for painful limited flexion of the left knee prior to June 8, 2010.



9. Entitlement to an effective date earlier than November 12, 2016 for the grant of a 20 percent disability rating for left knee instability.
The Veteran seeks an effective date earlier than November 12, 2016 for the award of a separate 20 percent disability rating for left knee instability.  
As the separate 20 percent rating for left knee instability was awarded as part of the Veteran’s increased rating claim for his service-connected left knee disability, the earliest possible effective date for the award of the separate 20 percent disability rating for left knee instability is October 13, 2009.  See 38 U.S.C. § 5110 (a) and 38 C.F.R. § 3.400 (o)(2) (If, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). 
Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the “facts found.”  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). 
Pertinent to this case, the Board observes that the Veteran’s increased rating claim for his left knee disability was received on October 13, 2010.  Although the Veteran complained of left knee instability as part of his increased rating claim in October 2010, the objective medical evidence of record does not demonstrate left knee instability until the July 14, 2014 VA examination, which as noted above indicated that the Veteran had mild or slight left knee instability.  See VA examination report dated in December 2010 and VA treatment record dated in November 2010. 
VA treatment records associated with the claims file show that the Veteran did not have recurrent instability of the left knee at any time prior to the July 14, 2014 VA examination.  At the July 2014 VA examination, the examiner determined that anterior instability of the left knee was 1+ (0-5 millimeters), indicating mild or slight instability.  The objective medical evidence of record does not demonstrate moderate left knee instability until the November 12, 2016 VA examination, the date the RO has assigned as the effective date for the award of the separate 20 percent disability rating.  Accordingly, the Board finds that November 12, 2016 is the date on which it was first factually ascertainable that the Veteran met the requirements for a separate 20 percent disability rating for moderate left knee instability.  An effective date earlier than November 12, 2016 for the award of the separate 20 percent disability rating for moderate left knee instability must be denied, because the record does not show moderate left knee instability prior to November 12, 2016.  See 38 C.F.R. § 3.400.
The applicable law and regulations on the assignment of effective dates are binding in determining the outcome of this matter.  38 U.S.C. § 7104 (c).  Here, based on a review of the evidence the Board finds that an effective date earlier than November 12, 2016 for the separate 20 percent rating for moderate instability of the left knee is not warranted and the Veteran’s claim must be denied.  See 38 C.F.R. §§ 3.114(a), 3.400(p).
10. Entitlement to an effective date earlier than August 1, 2010 for the grant of a 20 percent disability rating for left knee degenerative joint disease with dislocated semilunar cartilage, frequent periods of locking, pain, and effusion.
The Veteran seeks an effective date earlier than August 1, 2010 for the award of a separate 20 percent disability rating under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.
The separate 20 percent rating for left knee instability was awarded as part of the Veteran’s increased rating claim for his service-connected left knee disability; thus, the earliest possible effective date for the award of the separate 20 percent disability rating for left knee instability is October 13, 2009.  See 38 U.S.C. § 5110 (a) and 38 C.F.R. § 3.400 (o)(2) (If, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). 
Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the “facts found.”  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). 
Pertinent to this case, a January 2010 VA treatment record shows that the Veteran reported worsening of left knee pain and that the previous month his left knee was swollen and painful.  The Veteran was referred to physical therapy.  A VA physical therapy note dated in February 2010 documented the Veteran reported constant pain to the left knee, knee giving out while walking or working out, and increase in swelling.  Physical examination revealed a positive Apley’s test and positive McMurray’s test indicating damage to the meniscus of the left knee to include a meniscal tear.  At that time, there was effusion to the anterior supra and infrapatellar area.  An April 2010 private treatment record reveals that the Veteran reported left knee swelling, pain, and limitation that had become worse over the past six to twelve months.  Physical examination revealed 1+ effusion, patellofemoral crepitance, lateral joint line tenderness, pain at the terminus of flexion, and 1+ positive Lachman’s test.  The impression was left knee lateral meniscus tear.  An MRI in May 2010 revealed patellofemoral disease, an intact but stretched ligament, and tear to the posterior horn of the medial meniscus.  The Veteran underwent left knee surgery in June 2010.  The postoperative diagnosis was left knee patellofemoral articular cartilage disease, lateral meniscus tear, medical and lateral compartment arthritis, and loos bodies.  
Based on the evidence above, the Board finds that the first evidence of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint was the February 23, 2010 VA physical therapy treatment record.  Specifically, the Veteran reported experienced the left knee giving way, swelling, and pain.  Physical examination indicated a possible meniscal tear as the Veteran had a positive McMurray’s examination.  Left knee meniscal tear was later confirmed by MRI in May 2010 and left knee surgery in June 2010.  Although the Veteran did not specifically state he experienced “locking” of the left knee, symptoms of locking may be described as a catching sensation, stiffness, or knee instability. 











 Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board finds that an effective of February 23, 2010 for the grant of a separate 20 percent disability rating for degenerative joint disease with dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint under Diagnostic Code 5258 is warranted.


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¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬____________ _________________
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Berry, Counsel