Citation Nr: 20072853 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 09-49 735 DATE: November 12, 2020 ORDER Entitlement to a rating in excess of 10 percent for limited range of motion of the right knee from August 1, 2008 to April 3, 2009 and from June 1, 2009 to February 3, 2020 is denied. Entitlement to a 20 percent rating for extension of the right knee is granted from February 3, 2020. Entitlement to a 30 percent rating for right knee instability is granted from August 1, 2008 to April 3, 2009. Entitlement to a rating of 10 percent for right knee instability is granted from August 3, 2015 to October 23, 2019. Entitlement to a 20 percent rating, but not more, for right knee instability is granted from October 23, 2019. Entitlement to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is granted from October 23, 2019. FINDING OF FACT 1. From August 1, 2008 to April 3, 2009, and from June 1, 2009 to February 3, 2020, the Veteran’s service-connected right knee disability manifested as painful but non-compensable limitation in his range of motion. 2. From February 3, 2020, the Veteran’s service-connected right knee disability manifested as range of motion from 15 degrees to 65 degrees. 3. From August 1, 2008 to April 3, 2009, the Veteran’s service-connected right knee disability manifested as severe instability. 4. From August 3, 2015 to October 23, 2019, the Veteran’s service-connected right knee disability manifested as slight instability. 5. From October 23, 2019, the Veteran’s service-connected right knee disability manifested as moderate instability. 6. From October 23, 2019, the Veteran’s service-connected right knee disability manifested as dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. CONCLUSION OF LAW 1. From August 1, 2008 to April 3, 2009 and from June 1, 2009 to February 3, 2020, the criteria for a rating in excess of 10 percent for limited range of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5019 & 5260. 2. From February 3, 2020, the criteria for a 20 percent evaluation, but not more, for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003 & 5260. 3. From May 20, 2008 to April 3, 2009, the criteria for a 30 percent rating for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. From August 3, 2015 to October 23, 2019, the criteria for a 10 percent rating for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. From October 23, 2019, the criteria for a 20 percent rating for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. From October 23, 2019, the criteria for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1987 to April 2004. The Veteran testified before the undersigned Veterans Law Judge in a July 2011 videoconference hearing. A transcript of that hearing is of record. The Veteran’s claim for an increased rating for his service-connected right knee disability has been pending since the Department of Veterans Affairs (VA) received a May 22, 2008 claim for a temporary total rating for convalescence and an October 9, 2008 statement noting that his right knee disorder has worsened. The Board of Veterans’ Appeals (the Board) and the U.S. Court of Appeals for Veterans Claims (the Court) have summarized the procedural history in previous decisions. Pertinent here, the Veteran’s claim was most recently before the Board in September 2019. The Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) because the record indicated that his service-connected right knee disability had worsened since a January 2019 VA examination. The Veteran received new VA examinations in October 2019 and February 2020. Those examinations are adequate to adjudicate the Veteran’s claim, and the Board concludes that there has been substantial compliance with its September 2019 remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an Increased Rating for a Service-Connected Right Knee Disability The Veteran maintains that the rating assigned for his service-connected right knee disability does not reflect the severity of his symptoms. For the reasons discussed below, the Board agrees that compensation beyond what the Veteran is currently receiving is warranted for some, but not all, portions of the period on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Orthopedic disabilities of the knee joint are evaluated under the criteria of 38 C.F.R. § 4.71a. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes [DC or DCs] 5256, 5260, and 5261) or instability (DCs 5257, 5262, and 5263). See VAOPGCPREC 23-97 (July 1, 1997). Additionally, VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under DCs 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 9-98 (September 1998). VA’s General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004 (September 17, 2004). Moreover, an evaluation of a knee disability under diagnostic codes 5260 or 5261 does not preclude a separate evaluation under diagnostic codes 5257, 5258, or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran’s ratings for his service-connected right knee disability have been staged during the period on appeal. From May 20, 2008 to August 1, 2008, the Veteran received a 100 percent evaluation following a May 3, 2008 surgical procedure on his knee. From August 1, 2008 to April 3, 2009, his knee was evaluated as 10 percent disabling based on limited range of motion and painful motion. Following a July 2019 rating decision, the Veteran’s right knee disability was evaluated as 100 percent disabling from April 3, 2009 to June 1, 2009. From June 1, 2009 to August 11, 2017, the Veteran’s right knee disability was evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5099-5019 for right knee patellofemoral syndrome and bursitis. From August 11, 2017, the AOJ assigned a 10 percent evaluation under DC 5003-5257 for right knee instability and a 10 percent evaluation under DC 5003-5260 for limited range of motion on flexion with objective evidence of pain on motion. In assigning these evaluations, the AOJ considered the Veteran’s numerous knee surgeries, specifically noting limited range of motion on flexion and instability post right knee arthroscopy with partial medial meniscectomy, and anterior cruciate ligament reconstruction with bone-patella tendon bone allograft with partial medial meniscectomy. These evaluations remain in effect. The AOJ also assigned a non-compensable evaluation for limited extension of the right knee under 38 C.F.R. § 4.71a, DC 5000-5261 from January 18, 2019 in the July 2019 rating decision. The Board will address the Veteran’s ratings based on their functional impact. First, the Board will assess the impact of the Veteran’s right knee disability on his range of motion on flexion and extension under DCs 5019 and 5003, which look to DCs 5260 and 5261. Second, the Board will address evaluations associated with instability under DC 5257. Third, the Board will address meniscal abnormalities under DCs 5258 and 5259. Fourth, the Board will address the applicability of the remaining diagnostic codes used to evaluate service-connected knee disabilities, DCs 5256, 5262, and 5263. A. Ratings Based on Range of Motion—Diagnostic Codes 5019, 5003, 5260 and 5261 DC 5019 directs the evaluation of patellofemoral syndrome based on range of motion. DC 5003 similarly provides for evaluations based on a veteran’s range of motion. DCs 5260 and 5261 govern ratings based on range of motion on flexion and extension of the knee respectively. DC 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. DC 5261 provides a 50 percent rating where knee extension is limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). From August 1, 2008 to April 3, 2009, and from June 1, 2009 to August 11, 2017, the Veteran’s knee was evaluated under 38 C.F.R. §§ 4.59 and 4.71a, DC 5099-5019 as 10 percent disabling due to non-compensable reductions in his range of motion and objective evidence or painful motion. In a July 2019 rating decision, the AOJ maintained a 10 percent evaluation, but assigned it pursuant to DC 5003-5260, effective August 11, 2017. While the basis of the evaluation changed from a rating for patellofemoral syndrome—rated as analogous to bursitis—to arthritis, the criteria for the Veteran’s 10 percent evaluation remained the same: painful motion and non-compensable loss in his range of motion on flexion. In sum, when the Veteran was not convalescing from May 30, 2008 and April 3, 2009 right knee surgeries, his right knee has been rated as 10 percent disabling due to non-compensable limitations in his range of motion accompanied by painful motion. That changed with a February 3, 2020 VA examination, and the Veteran’s range of motion on extension warrants a 20 percent rating. Thus, for the reasons discussed below, the Board concludes that a rating in excess of 10 percent is not warranted from August 1, 2008 to April 3, 2009 and from June 1, 2009 to February 3, 2020, and 20 percent rating for limited range of motion of 15 degrees to 65 degrees from February 3, 2020. i. From August 1, 2008 to April 3, 2009 and from June 1, 2009 to February 3, 2019 A rating in excess of 10 percent is not warranted from August 1, 2008 to April 3, 2009 based on the Veteran’s range of motion under either 5260 or 5261. See 38 C.F.R. § 4.71a, DCs 5003 & 5019. Treatment records during that period show that the Veteran’s range of motion did not meet the criteria for a rating in excess of 10 percent. For instance, July 2008 VA treatment records for physical therapy following his May 30, 2008 surgery show range of motion on flexion and extension from 0 degrees to 110 degrees. Whether the Veteran experienced pain is not clear, as he both reported and denied pain. The Board resolves the ambiguity in the Veteran’s favor and finds that he experienced knee pain in July 2008. See 38 C.F.R. §§ 4.3, 4.6. November 2008 VA treatment records document the Veteran’s reports that he was not doing as well as he would like after the May 30, 2008 knee surgery and was experiencing pain in the right knee. It notes that steroid injections relieved his symptoms for a few weeks. The Veteran’s range of motion is not documented. February 2009 and March 2009 private treatment records document full range of motion. Thus, a rating in excess of 10 percent pursuant to DCs 5099-5019, 5260, and 5261 is not warranted for the period between the May 30, 2008 surgery and his April 3, 2009 surgery. The Veteran underwent right knee surgery on April 3, 2009, and his knee was rated as 100 percent disabling from April 3, 2009 to June 1, 2009. The evidence shows that a rating in excess of 10 percent rating is not warranted from June 1, 2009 to February 2, 2020. The preponderance of the evidence shows that the Veteran had painful motion with non-compensable loss in his range of motion on flexion, normal range of motion on extension until January 18, 2019, and non-compensable loss in his range of motion on extension from January 18, 2019 to February 3, 2020. June 2011 private treatment records note full range of motion with tenderness on palpation. The Veteran received a steroid injection in his right knee. August 2015 VA treatment records document full range of motion of 0 degrees to 140 degrees, November 2015 VA treatment records show a range of motion from 0 degrees to 125 degrees, and March 2016 VA treatment records document range of motion from 0 degrees to 130 degrees. November 2015 records for a physical therapy appointment in which he was evaluated for a new right knee brace describe his range of motion as within functional limits. This indicates that he had reduced range of motion that did not restrict his ability to function; however, it also suggests that the Veteran’s range of motion was not severe enough to meet the ratings criteria for stand-alone evaluations in excess of 10 percent under either DC 5260 or DC 5261. The Board notes that the Veteran received Hyalgan and Synvisc injections in his right knee to ease pain following both surgeries. Hyalgan injections were discussed as early as October 2008, and his treatment records document series of five Hyalgan injections starting in October 2009, continuing in November 2009, and concluding in December 2009. From September 2010 to November 2010, the Veteran received a second series of five injections of Hyalgan. The Veteran received a third series of Hyalgan injections in August 2011. The Veteran tried Synvisc injections in March 2012, April 2012, February 2013, July 2014, and August 2015. The Veteran again considered Hyalgan injections in November 2015 and received a fourth series of Hyalgan injections starting in March 2016 and concluding in April 2016. According to March 2016 and March 2017 VA treatment records, Hyalgan injections eased the Veteran’s right knee pain for approximately 3 months whereas Synvisc injections worked for a couple of weeks. Nonetheless, he received Synvisc injections again in March 2017. These injections addressed the Veteran’s pain, which is contemplated in the 10 percent evaluations under DC 5099-5019 prior to August 11, 2017. See 38 C.F.R. § 4.71a, DC 5099-5019. As noted above, the diagnostic code used to evaluation the Veteran’s service-connected right knee disability was changed from DC 5019 to DC 5003, and the basis of the 10 percent rating remained the same—painful motion and reduction in his range of motion that was non-compensable. The July 2019 rating decision was based on an August 2017 VA examination. In its April 2018 decision, the Board deemed the August 11, 2017 VA examination inadequate to adjudicate the Veteran’s claim. Thus, it cannot factor into the Board’s determination of whether the Veteran is entitled to a rating in excess of 10 percent. Looking to other evidence of record, the Board concludes that it does not support a rating in excess of 10 percent from August 11, 2017 to February 3, 2020. In September 2017, the Veteran sought physical therapy for his right knee and began a new treatment regimen. His range of motion was described as within functional limits, and his strength was observed to be 5/5. As noted above, the Board construes “within functional limits” to indicate that the Veteran’s range of motion was outside the normal range of motion without being limited to the point that it warranted compensable evaluations under DCs 5260 or 5261. The Board notes that the Veteran was fitted with a new knee brace. The Veteran received VA examinations in January 2019 and October 2019, and neither of them shows compensable limitations in the Veteran’s range of motion on flexion or extension. The January 2019 VA examination document initial range of motion measurements of 5 degrees to 100 degrees on extension and flexion. The Veteran reported bilateral flare-ups and noted that his knees were flared-up during the examination. Thus, the initial range of motion measurements embraced the functional impact of flare-ups, and the examiner described the impact of pain, fatigue, weakness, and a lack of endurance during flare-ups are a range of motion of 5 degrees to 100 degrees on flexion and extension. The examiner also noted reduced strength of 4/5 on flexion and extension of the right knee due to osteoarthritis. The examination did not show a range of motion limited to 45 degrees on flexion—the limitation needed for a 10 percent evaluation for limited range of motion under DC 5260—or limited to 30 degrees—the limitation needed for a 20 percent evaluation under DC 5261. The loss in his range of motion on extension documented in the January 2019 VA examination report support a stand-alone evaluation under 38 C.F.R. § 4.71a, DC 5261, and the AOJ assigned a non-compensable evaluation under DC 5261 effective January 18, 2019. However, a compensable rating is not warranted. The evidence does not show extension limited to 10 degrees, which is the limitation required for a 10 percent rating under DC 5261. The Veteran’s October 2019 VA examination similarly shows that the Veteran’s limited range of motion on flexion and extension did not support a rating in excess of 10 percent for painful motion with non-compensable limitation in his range of motion. His initial range of motion was worse than January 2019, measuring 0 degrees to 90 degrees on flexion and extension. The examination was not performed during a flare-up; however, the examiner stated the functional loss due to pain during flare-ups in terms of range of motion as 0 degrees to 80 degrees. This exceeds the range of motion that would warrant a rating in excess of 10 percent under both DC 5260 and DC 5261. The examiner noted weakened movement due to muscle injury, disturbance of locomotion, and interference with standing. This is consistent with the Veteran’s reports that his right knee disability interferes with his ability to walk and stand for any significant period of time. The examiner noted normal muscle strength of 5/5 bilaterally. In light of the foregoing, the Board concludes that a rating in excess of 10 percent for limited range of motion accompanied by objective evidence of pain is not warranted from August 1, 2009 to February 3, 2020. The Veteran’s knees worsened, with gradual reductions in his range of motion on flexion and extension; however, that reduction did not reach the schedular criteria for a rating in excess of 10 percent on either flexion or extension. ii. From February 3, 2020 Based on a February 3, 2020 VA examination, the Veteran’s range of motion has deteriorated to the point that a 20 percent evaluation is warranted under DC 5261. The Veteran’s initial range of motion measurements were from 15 degrees to 75 degrees on flexion and extension of his right knee. The examiner noted the Veteran’s reports of flare-ups. According to the Veteran, flare-ups, which he described as moderate, occur every week depending on his activities and last for one to two days. Walking, climbing, kneeling, and balancing bring about the flare-ups, which the Veteran treats with rest and medications. The Veteran also reported impaired function with repetitive use over time. He cannot stand or walk for an extended period of time, and the Veteran cannot kneel or balance. According to the examiner, the functional impact of repetitive use over time described in terms of range of motion was from 15 degrees to 75 degrees on flexion and extension. The functional impact of flare-ups stated in terms of range of motion was estimated to be from 15 degrees to 65 degrees. These estimates of the Veteran’s range of motion when his symptoms are at their worst support a 20 percent evaluation from February 3, 2020 because the Veteran’s range of motion on extension was limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5261. His limited range of motion on flexion remains non-compensable. See id. § 4.71a, DC 5260 The 20 percent evaluation for limited range of motion on extension from February 3, 2020 forecloses the 10 percent evaluation for painful motion with non-compensable loss in his range of motion on flexion under DC 5003-5260. B. Ratings Based on Instability—Diagnostic Code 5257 Knee instability is evaluated pursuant to 38 C.F.R. § 4.71a, DC 5257. Under DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability, a 20 percent rating is warranted for moderate subluxation or lateral instability, and a 30 percent rating is warranted for severe subluxation or lateral instability. Lay evidence as to lateral instability should be weighed on a case-by-case basis. English v. Wilkie, No. 17-2083, U.S. Vet. App. (Nov. 1, 2018). The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Here, the Board concludes that the evidence of record supports the following ratings for instability for the period on appeal: A 30 percent rating from August 1, 2008 to April 3, 2009; no rating from June 1, 2009 to August 11, 2017; a 10 percent rating from August 3, 2015 to February 3, 2020; and a 20 percent rating from February 3, 2020. i. From August 1, 2008 to April 3, 2009 The evidence or record supports a 30 percent rating for severe instability from August 1, 2008 to April 3, 2009. Laxity was evident in the Veteran’s knee following his May 30, 2008 right knee surgery. July 2008 VA treatment records for a physical therapy session note varus and valgus laxity and a positive anterior drawer test, indicating dysfunction in the anterior cruciate ligament (ACL). November 2008 treatment records document the Veteran’s reports that his knee gave way, locked and caught on a nearly daily basis. The Veteran underwent an MRI examination in December 2008, and January 2009 VA treatment records analyzing the MRI examination note that the Veteran’s ACL was poorly visualized, indicating a partial ACL tear. February 2009 and March 2009 private treatment records document a +3 positive Lachman test, further indicating an ACL tear, and positive McMurray test showing damage to his meniscus. As a result of the instability in his knee, the Veteran underwent surgery on April 3, 2009. The post-surgical report documented a near-total ACL tear that was repaired and medial meniscus tear that was also repaired during the surgery. Given the severe instability in the Veteran’s knee—indicated by a +3 Lachman’s test and the need to undergo surgery to repair his Acl and meniscus—the Board assigns a 30 percent rating from May 30, 2008 to April 2, 2009. See 38 C.F.R. § 4.71a, DC 5257. A 30 percent rating is the maximum rating provided under DC 5257. ii. From June 1, 2009 to August 3, 2015 The Veteran received a 100 percent evaluation from April 3, 2009 to June 1, 2009 for convalescence from the April 3, 2009 right knee surgery. The evidence shows that the April 3, 2009 surgery remedied the Veteran’s right knee instability, and a rating under DC 5257 is not warranted from June 1, 2009 to August 3, 2015. August 2009 private treatment records document a negative Lachman test, and note that the Veteran’s right knee was stable to varus and valgus stress. June 2011 private treatment records similarly note a negative Lachman test. iii. From August 3, 2015 to February 3, 2020 The AOJ assigned a 10 percent evaluation from August 11, 2017 for slight instability based on the August 11, 2017 VA examination that the Board previously deemed inadequate and cannot rely on here. Other evidence of record shows that instability returned in August 3, 2015, approximately two years earlier than August 11, 2017. VA treatment records from August 3, 2015 show that the Veteran’s right knee disability manifested as slight instability. A nurse practitioner noted some laxity when performing Lachman’s test; she noted no instability on varus or valgus stress, and a posterior drawer test was negative. November 2015 stability testing was normal; however, March 2016 VA treatment records note laxity with varus and valgus stress, and a positive Lachman test showing a 1mm to 2mm variation when comparing the Veteran’s right knee to his left knee. Accordingly, the Board concludes that a 10 percent rating under 38 C.F.R. § 4.71a, DC 5257 for right knee instability is warranted from August 3, 2015. A rating in excess of 10 percent, however, is not warranted. September 2017 VA treatment records document instability medially and laterally of 1mm to 2mm when compared with his left knee. The January 2019 and October 2019 VA examinations noted slight lateral instability in the right knee. On stability testing, both the January 2019 and October 2019 VA examinations assessed +1 (0mm-5mm) instability medially (valgus stress) and laterally (varus stress). The Board is not bound by the examiners’ characterization of the stability as slight but concludes that the +1 lateral and medial instability is consistent with a 10 percent evaluation under 38 C.F.R. § 4.71a, DC 5257.   iv. From February 3, 2020 The February 2020 VA examination, when compared to the January 2019 and October 2019 VA examinations, shows that the Veteran’s lateral instability had worsened. Whereas the January 2019 and October 2019 VA examinations shows +1 instability on valgus and varus stress, the February 3, 2020 VA examination showed +2 instability on valgus and varus stress, and the examiner characterized the instability as moderate. While the Board is not bound by the examiner’s characterization of the Veteran’s right knee instability, it concludes that it is probative evidence regarding the severity of the instability in the Veteran’s right knee. A 20 percent rating for moderate instability is assigned from February 3, 2020. See 38 C.F.R. § 4.71a, DC 5257. However, a 30 percent rating for severe instability is not indicated. The Board accepts the examiner’s characterization of the severity of the Veteran’s lateral instability. The instability was only on varus and vulgus stress, and the Veteran’s knee was stable on anterior and posterior testing. The Board concludes that the 20 percent rating most closely approximates the severity of the Veteran’s right knee instability. C. Meniscal Conditions—Diagnostic Codes 5258 and 5259 Two diagnostic codes are applicable to meniscal conditions, 5258 and 5259. The Board concludes that rating under DC 5258 is warranted from October 23, 2019, but not earlier. A rating under DC 5259 is not warranted for at any time during the period on appeal. a. Diagnostic Code 5258 Under Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint.   i. From August 1, 2008 to April 3, 2009 and from June 1, 2009 to October 23, 2019 From August 1, 2008 to April 3, 2009, an evaluation under DC 5258 is not warranted. The 30 percent evaluation under DC 5257 addresses the Veteran’s complaints of instability and locking between his May 30, 2008 surgery and his April 3, 2009 surgery, and contemplates the symptoms due to the Veteran’s torn meniscus following his May 30, 2008 surgery until his April 3, 2009 surgery. To the extent the Veteran experienced pain as a consequence of the May 30, 2008 surgery, it is contemplated by the Veteran’s rating under 38 C.F.R. § 4.71a, DC 5099-5019. Applicable laws and regulations foreclose an evaluation for those symptoms under a third diagnostic code. See 38. C.F.R. § 4.14. In addition, to the extent the Veteran’s symptoms due to removal of semilunar cartilage closely approximate the criteria for severe lateral knee instability, evaluating them under DC 5257 rather than DC 5258 results in a 30 percent rating that exceeds the maximum rating of 20 percent DC 5258. See 38 C.F.R. § 4.7. From June 1, 2009 to October 23, 2019, the Veteran’s right knee disability did not manifest as locking with effusion into the joint. Pain in his right knee is contemplated in the 10 percent evaluation under DCs 5019 and 5003, and a second evaluation for pain in the right knee would violate applicable laws and regulation prohibiting duplicative compensation for symptomatology attributable to service-connected disabilities. 38 C.F.R. § 4.14. The record does not show frequent episodes of locking and effusion into the right knee. An April 2012 MRI of the right knee noted effusion; however, the Veteran’s VA treatment records more consistently show no effusion in his right knee. See, e.g., VA treatment records from September 2010, October 2010, August 2015, November 2015, and March 2017, June 2017, September 2017, May 2018. Moreover, the Veteran did not complain about locking in his knee until November 2015 when he reported intermittent locking. The Veteran’s VA treatment records do not document other complaints of locking after his April 3, 2009 right knee surgery. In light of the foregoing, a rating under DC 5258 is not warranted from June 1, 2009 to October 23, 2019. ii. From October 23, 2019 In the October 23, 2019 VA examination, the examiner noted meniscal tears with locking, pain, and effusion in his right knee. The February 3, 2020 VA examination similarly noted meniscal tears with joint locking, pain, and effusion. Thus, a 20 percent evaluation is warranted from October 23, 2019. See 38 C.F.R. § 4.71a, DC 5258. A 20 percent rating is the only rating provided under DC 5258. b. Diagnostic Code 5259 In the JMPR, the Court directed the Board to consider whether the Veteran is entitled to a separate rating under 38 C.F.R. § 4.71a, DC 5259. The Board concludes that a 10 percent rating under DC 5259 is not warranted during the period on appeal. As a general matter, evaluations for knee disabilities under 5257 or 5261 do not preclude the evaluation of the same knee disability under 5258 or 5259 where the symptoms evaluated are separate and distinct from the manifestation of disability that form the bases of the evaluations under diagnostic codes 5257 or 5261. See 38 C.F.R. § 4.14; Lyles, 29 Vet. App. at 116-17; Murray v. Shinseki, 24 Vet. App. 420, 423 (2011). Here, however, the symptoms due to the Veteran’s right knee surgeries are already contemplated by other evaluations. From August 1, 2008 to April 3, 2009, the Veteran experience pain and instability in his right knee that was related to a May 30, 2008 knee surgery that involved removal of his semilunar cartilage. His pain is contemplated in the 10 percent rating under DC 5019, and the instability due to meniscal injury is contemplated by the 30 percent evaluation under DC 5257 assigned herein. Thus, 38 C.F.R. § 4.14 forecloses a rating under DC 5259. From June 1, 2009 to October 23, 2019, the Veteran experienced pain on motion in his right knee and his knee was consistently described as stable until August 3, 2015. The Board notes that the Veteran consistently wore a brace on his right knee to help alleviate pain. For instance, March 2010 VA treatment records document the Veteran’s request for a new knee brace to alleviate pain in his right knee. November 2015 VA treatment records document the Veteran’s reports that he wears the knee brace to alleviate pain and sought a new knee brace to help address increased pain in his right knee. To the extent that the removal of semilunar cartilage in the April 2009 right knee surgery resulted in pain, it is contemplated by his 10 percent rating under DCs 5099-5019 and 5003-5260. Thus, a rating under either 5259 is not warranted for pain in his right knee. The Board further notes that March 2010 VA treatment records suggest that the Veteran needs to brace to address stability concerns in the right knee. As discussed above, clinical evaluations following his April 2009 right knee surgery showed normal stability in his right knee until August 3, 2015. To the extent the Veteran’s use of a brace addressed stability concerns, physical evaluations at time showed normal stability from June 1, 2009 until August 3, 2015, and a rating under DC 5259 is not warranted for instability. To the extent that his right knee was unstable after August 3, 2015 due to the removal of semilunar cartilage in the April 3, 2009 surgery, it is contemplated by the Veteran’s evaluation under 5257. To the extent he experienced pain, locking and effusion from October 23, 2019 due to the removal of semilunar cartilage in the April 3, 2009 surgery, it is embraced in the 20 percent evaluation under DC 5258 from October 23, 2019. The Board concludes that a rating under 5259 is not warranted for any period during the time on appeal due to the regulations prohibiting redundant evaluations for the same symptomatology of service-connected disabilities. See 38 C.F.R. § 4.14. D. Remaining Diagnostic Codes Pertinent to the Knee Ratings under applicable codes are not warranted during any time in the appeal period. As discussed above, other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. at 261-62; Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Evaluations under Diagnostic Codes 5256, 5262, and 5263 are not warranted. His right knee is not ankylosed per the adequate VA examinations on record. For instance, the January 2019, October 2019, and February 2020 VA examinations expressly state that the Veteran’s right knee is not ankylosed. Finally, the record does not show impairment of the tibia and fibula or genu recurvatum, foreclosing evaluations under diagnostic codes 5262 and 5263 respectively. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.