Citation Nr: 20021837 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-05 135 DATE: March 27, 2020 ORDER Service connection for major depressive disorder is granted. The criteria for a disability rating of 10 percent, and no higher, for left knee arthralgia (arthritis and limitation of flexion) have been met during the entire pendency of the appeal. Beginning October 7, 2019, the criteria for a separate disability rating of 40 percent, and no higher, for left knee arthralgia (limitation of extension) have been met. An initial disability rating greater than 20 percent for left knee instability is denied. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran has a current diagnosis of major depressive disorder which has been related to his service on a direct basis. 2. Prior to October 7, 2019, the Veteran’s left knee arthralgia was manifested by objective evidence of painful, limited motion with flexion limited to no less than 90 degrees and full extension, even with contemplation of functional loss due to pain and other factors, or as a result of repetitive motion or flare-ups without ankylosis, lateral instability or recurrent subluxation, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. There was also evidence of arthritis. 3. Beginning October 7, 2019, the Veteran’s left knee arthralgia has been manifested by objective evidence of painful, limited motion with flexion limited to no less than 50 degrees and extension limited to no more than 30 degrees, even with contemplation of functional loss due to pain and other factors, or as a result of repetitive motion or flare-ups without ankylosis, lateral instability or recurrent subluxation, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. There is also evidence of arthritis. 4. Beginning October 7, 2019, the Veteran’s service-connected left knee disability has demonstrated moderate instability and subluxation. CONCLUSIONS OF LAW 1. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. During the pendency of the appeal, the criteria for a disability rating of 10 percent, and no higher, for left knee arthralgia (arthritis and limitation of flexion) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code (DCs) 5003-5260. 3. Beginning October 7, 2019, the criteria for a separate disability rating of 40 percent, and no higher, for left knee arthralgia (limitation of extension) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5261. 4. Since October 7, 2019, the criteria for a separate initial disability rating of 20 percent, and no higher, for instability and subluxation of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to January 1981. This case comes on appeal to the Board of Veterans’ Appeals (Board) from April and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Specifically, the April 2014 rating decision denied service connection for PTSD and found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for depression. The December 2014 rating decision continued a 10 percent disability rating for left knee arthralgia. This case was previously before the Board in September 2018 at which time the Board, in pertinent part, reopened the previously denied claim of entitlement to service connection for depression, denied service connection for PTSD, and remanded the above issues for additional development. Significantly, following this additional development, by rating decision dated in October 2019, the RO increased the Veteran’s disability rating for left knee arthralgia from 10 to 40 percent disabling effective October 7, 2019 and granted a separate 20 percent disability rating for left knee instability, also effective October 7, 2019. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for an acquired psychiatric disorder is granted. The Veteran contends that service connection is warranted for an acquired psychiatric disorder due to his military service. Specifically, the Veteran contends that his psychiatric problems stem from the following incidents that allegedly occurred during his military service: 1) a close friend died by suicide by hanging himself and the Veteran found his body, 2) a close friend developed severe psychological problems causing him to be badly injured when he fell face first into barbed wire, and 3) the Veteran was the victim of racial discrimination during his service. The Veteran’s service treatment records are negative for psychiatric problems. Significantly, both an October 1979 pre-enlistment and November 1980 separation examination show a normal psychiatric system. Also, in October 1979 and November 1980 reports of medical history, the Veteran specifically denied “depression or excessive worry” and “nervous trouble of any sort.” Post-service VA treatment records show psychiatric problems as early as May 2003. Significantly, the Veteran was diagnosed with alcohol/cocaine/nicotine dependence and depression, not otherwise specified, as early as May 2003. The Veteran submitted an initial claim for service connection for depression in April 2006 and this claim was denied by rating decision dated in January 2008 as there was no medical evidence of a connection between the Veteran’s depression and his military service. The Veteran submitted the current claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, in January 2014. In connection with the current claim, VA obtained updated VA treatment records. Significantly, a July 2013 VA treatment record shows that the Veteran meets the criteria for PTSD, both from civilian and non-combat military causes. Also in connection with this claim, the Veteran submitted an April 2014 statement from his treating VA physician. This statement shows that the VA physician had treated the Veteran for PTSD, depression, and substance use disorder since July 2013. Significantly, the VA physician noted that the Veteran’s problems arose primarily from two incidents that occurred while he served in the Army from 1979 to 1981. In one case, a close friend died by suicide by hanging himself and the Veteran found his body; in the other, another close friend developed psychological problems and received a medical discharge. The Veteran reported that he had all his friends were under similar pressures, some of which were racial in nature, and that after these two incidents be began to drink heavily and became much more withdrawn and less functional in his work. He eventually received a discharge under honorable conditions due to “unsuitability-apathy defective attitude to expend effort constructively” (discharge code JMJ). He also experienced various traumatic events as a teenager prior to entering the service, including seeing friends shot and stabbed and seeing a friend’s father die after losing control of a motorcycle. Pursuant to the September 2018 Board remand, the Veteran was afforded a VA psychiatric examination in August 2019. This examination report shows diagnoses of major depressive disorder, moderate; alcohol use disorder, severe; and stimulant use disorder, severe, cocaine. Significantly, the examiner opined that it was less likely than not that the Veteran’s psychiatric disabilities were incurred in or caused by the Veteran’s claimed in-service events. As rationale for this opinion, the examiner wrote that the Veteran had an extensive mental health history, to include treatment for mood dysfunction and substance abuse. Where there was no evidence that the Veteran struggled with mental illness prior to his engagement in the military (as evidenced by his entrance examination), there was no concrete evidence linking the Veteran’s current mental health dysfunction to his military service. The examiner noted that the Veteran did not meet the criteria for a PTSD diagnosis, but did meet the criteria for major depressive disorder, which had been exacerbated by high levels of substance use/abuse. The only evidence presented was the Veteran’s self-report. He reported that his drinking behavior started in the military and was directly responsible for his discharge. However, the examiner could find nothing to substantiate the Veteran’s claim. The Veteran reported that the cause of his mental health dysfunction, both while in the military and post military service, was based on trauma that he experienced, specifically witnessing a friend fall into barbed wire and witnessing a serviceman who had died by suicide. It is possible and plausible that experiencing racial prejudice would impact alcohol use and job performance. The examiner could find no record of reported instances of racial prejudice in the Veteran’s service record. It was impossible, without mere speculation, to note the impact of the Veteran’s reported experience of racial prejudice on his mental health at the time of his service. Also of record are VA treatment records dated through August 2019 and statements from the Veteran regarding in-service stressors and current psychiatric problems. Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder is warranted. As an initial matter, the Board finds that the Veteran has current diagnoses of several acquired psychiatric disorders including major depressive disorder. The record also contains a positive nexus opinion. As above, the April 2014 statement from the Veteran’s VA treating physician related the Veteran’s major depressive disorder to his military service. Moreover, the August 2019 VA examiner noted the plausibility that experiencing racial prejudice would impact alcohol use and job performance but indicated that he could not, without mere speculation, opine as to the impact of the Veteran’s reported experience of racial prejudice on his mental health at the time of his service. Such statement neither supports nor refutes the April 2014 VA physician’s opinion. Furthermore, the continuity of symptomatology evident from the statements from the Veteran, as well as the positive medical nexus opinion discussed above provides a plausible basis to conclude that the Veteran’s current acquired psychiatric disorders are related to his military service. With resolution of all reasonable doubt in the Veteran’s favor, it is concluded that the evidence supports service connection for an acquired psychiatric disorder. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities, which details different diagnostic codes (DCs) for different disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non- weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). By way of history, the Veteran’s service treatment records show that he was treated for left knee pain after hitting his knee on a rock in July 1980. By rating decision dated in August 2010, the RO granted service connection for left knee arthralgia with crepitus and stiffness, assigning a 10 percent disability rating effective January 12, 2010. This initial 10 percent disability rating was continued by rating decisions dated in July 2011 and April 2014. He submitted the current claim for an increased rating for his left knee disability in August 2014. As above, the December 2014 rating decision on appeal continued a 10 percent disability rating for left knee arthralgia. Subsequently, by rating decision dated in October 2019, the RO increased the Veteran’s disability rating for left knee arthralgia from 10 to 40 percent disabling effective October 7, 2019 and granted a separate 20 percent disability rating for left knee instability, also effective October 7, 2019. The Veteran’s left knee disabilities are rated pursuant to DC 5003 (pertaining to arthritis), DC 5024 (pertaining to tenosynovitis), DC 5260 (pertaining to limitation of flexion), DC 5261 (pertaining to limitation of extension) and DC 5257 (pertaining to instability). Each of these DCs are established by law and found in 38 C.F.R. § 4.71a. Such separate ratings are available with these codes, because knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. Under DC 5024 for tenosynovitis, the disability shall be rated on limitation of motion of affected parts, as degenerative arthritis. Degenerative arthritis is rated under DC 5003, which provides for a 10 percent disability rating for painful major joint (knee) that results in noncompensable limitation of motion. 38 C.F.R. § 4.71a. Otherwise, the disability is to be rated under the applicable codes for compensable limitation of motion. In the case of knee disabilities, that means DCs 5260 and 5261. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, DC 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the 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 “mild” or “moderate” 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. Evidence relevant to the current level of severity of the Veteran’s left knee disabilities includes VA examination reports dated in December 2014, April 2017, and October 2019. During the December 2014 VA examination, the examiner continued a diagnosis of left knee arthralgia with crepitus and stiffness. The Veteran reported experiencing daily left knee pain but denied limitations with activities of daily living. He denied experiencing flare-ups that impact the function of the knee as well as functional loss or functional impairment of the knee. On range of motion testing for the left knee he had flexion to 90 degrees extension to 0 degrees with no objective evidence of painful motion. Range of motion testing of the right knee revealed full motion (0 to 140 degrees). The Veteran ambulated without difficulty in and out of the examination room, sat and stood without difficulty, and could sit in a chair with his knee bent at 90 degrees without objective pain. The loss of motion did not contribute to functional loss. There was pain on flexion but no evidence of pain without weight bearing and there was no localized tenderness or pain on palpation of the left knee joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with three repetitions and no additional loss of motion. Significantly, the examiner noted that the Veteran’s left knee was examined immediately after repetitive use over time but that neither pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examination was not conducted during a flare-up and the examiner noted that the examination neither supported nor contradicted the Veteran’s statements describing functional loss during flare-ups. Furthermore, neither pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. Muscle strength testing was normal and there was no reduction in muscle strength nor muscle atrophy. There was also no ankylosis. Joint stability testing was normal. There was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There were also no meniscal conditions, surgeries, or other pertinent physical findings. The Veteran regularly used a brace to aid in ambulation. There was no functional impairment of the knees such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing was negative for traumatic arthritis and there was no objective evidence of crepitus. With regard to functional impact, the examiner noted that the Veteran’s left knee disorder did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) During the April 2017 VA examination, the examiner noted diagnoses of left knee tendonitis/tendonosis and degenerative arthritis. The Veteran reported that he experienced pain through the knee, had to keep it straight, and sometimes felt like his knee was going to give out. He reported experiencing flare-ups of the left knee when he would “stand up a lot, just strenuous standing, climbing up steps.” He also reported experiencing functional loss or functional impairment of the left knee in that he was no longer able to jump and/or play basketball. On range of motion testing for the left knee he had flexion to 120 degrees and extension to 0 degrees. This loss of motion contributed to a functional loss in that the Veteran had difficulty bending and kneeling. There was pain on flexion and objective evidence of localized tenderness or pain on palpation of the left knee, described as suprapatellar left knee, mild, and related to quadriceps tendonitis. He had full range of motion on the right knee (0 to 140 degrees). The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of motion. The Veteran’s range of motion of the knees was not examined immediately after repetitive use over time, and the examiner found that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. However, it was also noted that the Veteran was experiencing a flare-up at the time of the examination but that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability with repeated use over a period of time. Similarly, the Veteran was not examined during a flare-up, and the examiner found that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. However, it was also noted that the Veteran was experiencing a flare-up at the time of the examination but that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability during a flare-up. Additional factors contributing to the left knee disability included less movement than normal, instability of station, disturbance of locomotion, and interference with standing. Muscle strength was normal and there was no muscle atrophy. There was also no ankylosis. Joint stability testing was normal. There was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There were also no meniscal conditions, surgeries, or other pertinent physical findings. With regard to assistive devices, it was noted that the Veteran regularly used a brace to aid in ambulation. There was no functional impairment of the knees such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing revealed traumatic arthritis of the left knee. With regard to functional impact, the examiner noted that the Veteran’s left knee disorder impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) in that he had difficulty with activities requiring prolonged standing, climbing stairs and ladders, and jumping/running. With regard to Correia, the examiner wrote that there was no evidence of pain when the joint was used in non-weight bearing and that passive range of motion testing was the same as active range of motion. During the October 2019 VA knee examination, the examiner noted diagnoses of left knee instability and left knee ligament injury, most likely MCL. The examiner also continued a diagnosis of left knee arthralgia with crepitus and stiffness. The Veteran reported experiencing flare-ups of the left knee, described as daily flare-ups which are severe and last an entire day. The flare-ups are precipitated by non-weight bearing and weight bearing, with no pattern or reason behind it. The left knee flare-ups are alleviated by taking a short break, massaging the leg, stretching the leg, keeping the leg in full extension at times, and using heat or an ice pack. The Veteran also reported experiencing functional loss or impairment of the knees, described as an inability to do his job anymore and an inability to kneel, walk, or stand for any length of time greater than 5 to 10 minutes. He had left several jobs due to his left knee not being able to put up with the amount of work load and giving out on him or locking on him. He could not play sports or run with his 4 year old like he once thought he would be able to do. Range of motion testing of the right knee was normal. On range of motion testing for the left knee he had flexion to 120 degrees and extension to 30 degrees. This loss of motion contributed to a functional loss described as pain with flexion and extension, but more with flexion as extension stretches and fells okay for a minute. There was objective evidence of localized tenderness or pain on palpation of the left knee, described as occurring at the medial and lateral of the patellar with fluid palpated at the top of the patella. There was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was additional loss of motion, specifically, the Veteran only had flexion to 100 degrees due to pain and fatigue. The Veteran was not examined immediately after repetitive use over time and/or during a flare-up but the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during a flare-up. Significantly, it was noted that the Veteran only had flexion to 85 degrees and extension to 25 degrees of the left knee due to pain, fatigue, and lack of endurance during repetitive use over time. The Veteran had flexion to 50 degrees and extension to 15 degrees of the left knee during a flare-up. Additional contributing factors to the Veteran’s left knee disability included swelling, deformity, atrophy of disuse, disturbance of locomotion, and interference with standing. Specifically, it was noted that the Veteran could only walk for a maximum of 10 minutes. The Veteran experienced daily swelling and interference with standing in that he could stand for only 5 minutes and then had to sit as his knee would lock. There was atrophy and disuse of the quadriceps inhibition, noted by smaller quad and weakness of quad as well as posterior drawer, varus and valgus PROM maneuver. Muscle strength testing revealed active movement against gravity. There was a reduction in muscle strength and muscle atrophy. There was no ankylosis. Joint stability testing of the left knee revealed slight recurrent subluxation and moderate lateral instability. There was no history of recurrent effusion. There was no evidence of recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fracture, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was also no history of a meniscal condition and/or knee surgery. With regard to assistive devices, the Veteran constantly wore a brace on his left knee to aid with locomotion. There was no functional impairment of the knees such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing was not performed. With regard to functional impact, the examiner noted that the Veteran’s left knee disability impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.), specifically, the Veteran reported that he worked as a janitor had pushed a cart full of supplies so he leaned on his cart while working and would frequently take 5 minute breaks to help with the pain and swelling of his left knee. With regard to Correia, the examiner wrote that there was objective evidence of pain when the left knee was used in non-weight bearing and range of motion did not change with either passive, active, or weight/non-weight bearing and/or facial grimacing. Also of record are VA treatment records dated through August 2019 which show findings similar to those noted in the VA examination reports discussed above. 2. During the pendency of the appeal, the criteria for a disability rating of 10 percent, and no higher, for left knee arthralgia (arthritis and limitation of flexion) have been met. Beginning October 7, 2019, the criteria for a separate disability rating of 40 percent, and no higher, for left knee arthralgia (limitation of extension) have been met. With regard to the period of time prior to October 7, 2019, the Board notes that a disability rating greater than 10 percent is not warranted. By way of history, the August 2010 rating decision granted service connection for left knee arthralgia with crepitus and stiffness, assigning a 10 percent disability rating pursuant to DC 5099-5003 effective January 12, 2010. The rating code was changed to DC 5099-5260 in April 2014 and changed to DC 5024-5260 in December 2014. As such, it appears that the Veteran’s 10 percent rating prior to October 7, 2019 was based on both arthritis and limitation of flexion. Significantly, prior to October 7, 2019, the Veteran’s reported loss of flexion was noncompensable. In this regard, the Veteran had flexion to 90 degrees during the December 2014 VA examination and flexion to 120 degrees during the April 2017 VA examination. As noted above, a loss of flexion to 90 degrees or more does not constitute compensable limitation of motion under DC 5260. Even so, the Veteran has been assigned a 10 percent rating under such diagnostic code in light of his painful, noncompensable limited motion. See DC 5003, 38 C.F.R. § 4.59; Burton, supra. Also, prior to October 7, 2019, the Veteran’s reported extension of 0 degrees (normal) in both the December 2014 and April 2017 VA examination reports does not constitute compensable limitation of extension under DC 5261. With regard to the period of time beginning October 7, 2019, the Board notes that a disability rating greater than 40 percent is not warranted. By way of history, the October 2019 rating decision increased the Veteran’s disability rating for left knee arthralgia from 10 to 40 percent disabling effective October 7, 2019. Significantly, the rating code for the Veteran’s left knee disability was changed from DC 5024-5261 to DC 5261. As such, it appears that the Veteran’s 40 percent rating beginning October 7, 2019 is based solely on limitation of extension. As above, a 50 percent rating is warranted for loss of extension to 45 degrees or more pursuant to DC 5261. However, during the October 2019 VA examination, the Veteran had extension to 30 degrees. Significantly, a higher 50 percent rating under DC 5261 is not warranted because, as noted, the Veteran has not demonstrated right knee extension limited to 45 degrees or more. See 38 C.F.R. § 4.71a , DC 5261. However, the Board finds that the Veteran is entitled to a separate 10 percent rating beginning October 7, 2019 in light of his painful, noncompensable limited flexion. See DC 5003, 38 C.F.R. § 4.59; Burton, supra. Significantly, a review of the most recent Codesheet in the claims file shows a separate 10 percent disability rating pursuant to DC 5024-5260 beginning January 12, 2010 and does not show that this rating was ever discontinued. As such, the RO should continue the separate 10 percent rating previously assigned pursuant to DCs 5003 and 5260. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). With regard to both periods of time prior to and beginning October 7, 2019, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s left knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned ratings, and no higher. In this regard, the Board observes that the Veteran has complained of pain in his left knee with limited motion and an examiner opined that there was significant functional impairment; the examiner was unable to describe additional limitation of motion during flare-ups and the Veteran has also not described additional limitation of motion during flare-ups. With regard to a higher rating under another diagnostic code, as there was no evidence of ankylosis (i.e., where the joint fixed in place), impairment of the tibia or fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. As for the potential of a separate compensable rating for instability of the left knee pursuant to DC 5257 prior to October 7, 2019, the Board notes that there is no evidence of left knee instability in the December 2014 and April 2017 VA examination reports. However, the October 2019 VA examination report shows instability of the left knee. As such, the Board finds that a separate disability rating for left knee instability and subluxation prior to October 7, 2019 is not warranted. 3. An initial disability rating greater than 20 percent for left knee instability is denied. Upon review of the medical evidence, the Board finds an initial disability rating greater than 20 percent for left knee instability is not warranted. As above, pursuant to DC 5257, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The October 2019 VA examination report shows moderate instability of the left knee. As such, an initial disability rating greater than 20 percent for left knee instability is not warranted. Finally, when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the medical evidence of record throughout the appeal period indicates that the Veteran is currently employed as a janitor. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.1103. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.