Citation Nr: 20036479 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 19-26 150A DATE: May 28, 2020 ORDER Entitlement to an initial 30 percent disability rating, but no higher, for a right knee disability for the period prior to January 16, 2019 is granted. Entitlement to an initial rating of 60 percent for a right knee disability for the period since March 1, 2020 is granted. Entitlement to a separate 10 percent disability rating for right knee instability is granted. FINDINGS OF FACT 1. For the period prior to January 16, 2019, the Veteran’s right knee disability was manifested by additional functional loss due to flare-ups that result in weakness, limited motion, and additional pain. 2. For the period since March 1, 2020, the Veteran has experienced chronic residuals status post right knee replacement in the form of pain and weakness in the affected extremity. 3. The Veteran has slight instability of the right knee. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for a right knee disability for the period prior to January 19, 2016 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2019). 2. The criteria for an initial rating 60 percent rating for right knee replacement with limited range of motion for the period since March 1, 2020 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2019). 3. The criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from August 1972 to February 1984; from October 2001 to June 2002; and from July 2002 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the RO granted a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence for the Veteran’s right knee surgery effective January 16, 2019. The RO also assigned a 30 percent disability evaluation, effective March 1, 2020 for the right knee disability. The Board notes that because the 100 percent rating assigned to the Veteran’s service-connected right knee disability is the maximum rating available for this disability, a higher rating claim for a right knee disability for the time period from January 16, 2019 to February 29, 2020 is not on appeal. Increased Ratings The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2019). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of his right knee disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened 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 malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). An April 2018 rating decision granted service connection for a right knee disability at an initial 10 percent disabling effective date of April 09, 2016; under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, covering arthritis and limitation of flexion. As noted above, the RO granted a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence for the Veteran’s right knee surgery effective January 16, 2019. The RO also assigned a 30 percent disability evaluation, effective March 1, 2020 for the right knee disability. Because the 100 percent rating assigned to the Veteran’s service-connected right knee replacement with limited range of motion, due to convalescence from surgery is the maximum rating available for this disability, a higher rating claim for right knee replacement with limited range of motion, due to convalescence from surgery for the time period between January 16, 2019 and February 29, 2020 is not on appeal. Diagnostic Code 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Diagnostic Code 5261 evaluates limitation of extension as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). Diagnostic Code 5258 provides a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Rating 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 (2019). The 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 an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2019). VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2019). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background and Analysis In April 2017, the Veteran was afforded a VA examination. The examiner noted a diagnosis of a knee meniscal tear and knee joint osteoarthritis. The Veteran reported that he had difficulty walking downstairs, running and kneeling. The Veteran reported that he had functional impairment as he could not walk or run and that walking downstairs caused his knee to swell. He had progressive right knee pain and stiffness. The flexion of the right knee was from 0 to 100 degrees and the extension was 170 degrees. The examiner indicated that the range of motion contributed to functional loss. The examiner was not able to perform repetitive use testing due to pain and increased stiffness. The examiner indicated that there was painful range of motion movements on active or passive or repetitive use testing. The pain contributed to functional loss or additional limitation of range of motion. There was pain on weight bearing and the pain contributed to functional loss or additional limitation of range of motion as the use of his right knee with weight bearing activities caused increased pain and stiffness. Contributing factors of his disability included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling and disturbance of locomotion. Pain, weakness, incoordination and fatigue significantly limited functional ability but the physician was unable to estimate the additional loss of range of motion. It was noted that the Veteran had moderate muscle atrophy. There was no history of recurrent subluxation or instability. On examination, there was no joint instability. The Veteran underwent a knee meniscectomy in 1972. The Veteran occasionally used a cane. Effusion was noted in the knee joint. The Veteran’s right knee disability impacted his ability to work as he was unable to stand for long periods, walk for prolonged periods or climb stairs without significant pain, stiffness and swelling. In a January 2018 radiology note, a radiologist gave the impression that the Veteran had an advanced degenerative arthritis change throughout the right knee and patella. See January 2018 C & P. In January 2018, the Veteran was afforded a VA knee and legs examination. The examiner noted that the Veteran had a diagnosis of degenerative arthritis. At the time the symptoms the Veteran experienced was swelling, pain and weakness in the right knee. The Veteran reported flare-ups of the knee. The Veteran indicated that during a flare-up he experienced increased pain, swelling and decreased range of motion, 1-2 times a week, with moderate severity for several hours. There was functional loss and impairment due to pain and decreased range of motion with swelling that interfered with his regular activities. The flexion was from 0 to 120 degrees and the extension was from 120 to 0 degrees. The pain and range of motion contributed to functional loss. There was evidence of pain on weight bearing but no evidence of crepitus. The Veteran was able to perform repetitive use testing but there was no additional loss of function after three repetitions. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or with functional loss during a 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 or with flare-ups. Muscle strength testing was normal. There was no muscle atrophy or ankylosis. There were no joint stability issues. The Veteran used a brace occasionally as an assistive device. The examiner indicated that the condition impacted the Veteran’s ability to perform occupational task due to him being unable to sit, walk or stand for prolonged periods. In a timely NOD submitted in November 2018, the Veteran requested a minimum of 60 percent. The Veteran indicated the decision regarding his condition did not take into account that his knee condition was caused by his in-service training injury and the meniscectomy procedure he had. The Veteran also indicated that his knee had deteriorated to the that the cartilage and ligament had completely worn away, causing bone to bone contact. The Veteran further noted that he was advised by a VA appointed orthopedic surgeon that he would need a knee operation to replace his right knee. The Veteran further noted that he was scheduled to right knee surgery on January 16, 2019, to replace his right knee. In addition, the Veteran reported that his knee felt unstable, weak, stiff and painful and in order to reduce pain he shifted his weight to his left leg or another object. He also stated that doing activities such as kneeling stiffens and caused pain in his lower leg; and he could not run due to an immediate sensation of weakness, soreness and tightening just above the knee. He also noted to he had to have an object to pull him up and that he could not extend his right leg. See November 2018 NOD, p.2;4. In a January 2019 private treatment note, the clinician noted that the Veteran's range of motion was 30 degrees but did not indicate whether that was for flexion or extension. See May 2019 Medical Treatment Record-Non-Government Facility, p.89. In a February 2019 private treatment note, a clinician indicated one month after the Veteran’s knee surgery that his knee looked good, but he had a mild effusion and his range of motion improved to 85 degrees. The Veteran was experiencing minimal discomfort. Also, the clinician noted that the Veteran walked a mile a day with a cane but could walk without a cane. See May 2019 Medical Treatment Record-Non-Government Facility, p.79. In an April 2019 private treatment note, the Veteran reported that his knee was feeling stiff. The clinician noted that the Veteran had a decrease in his right terminal knee extension and a decrease in knee flexion during the swing phase. Also, the clinician noted that the Veteran’s active range of motion was 96 degrees after his treatment and his extension was 6 degrees. And the passive range of motion was 110 degrees. See May 2019 Medical Treatment Record-Non-Government Facility, p.13. In another April 2019 private treatment note, a clinician indicated that the Veteran seemed to be doing better and his right knee flexion was 110 degrees and his extension was missing a couple of degrees. See May 2019 Medical Treatment Record-Non-Government Facility, p.11. In April 2019, the Veteran was afforded a knee and lower leg examination. The examiner noted that the Veteran had a knee meniscal tear, right knee degenerative arthritis and a knee anterior cruciate ligament tear diagnosis. The Veteran reported within that past 18 months he had increased pain and aching in his right knee. The examiner noted that the Veteran had an MRI in October 2018 that showed advanced tricompartmental ostearthritis and he had a right knee replacement in January 2019. Also, the Veteran had a manual knee manipulation in March 2019. In addition, the Veteran had been attending physical therapy 3 times a week and could not kneel or run. The Veteran did not report flare-ups. The Veteran reported functional loss or functional impairment due to prolonged standing, walking and getting up from a seated position. The flexion of the right knee was 0 to 100 degrees and the extension wax 100 to 0 degrees. The examiner noted flexion and extension exhibited pain and caused functional loss. There was evidence of localized tenderness or pain on palpation. The palpation was located at all areas of the right knee and the severity was mild. There was evidence of pain with weight bearing and crepitus. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. Muscle strength testing for the right knee was normal. The Veteran did not have muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability but the examiner noted that the Veteran reported that the pain in his knee had decreased and he had developed instability. Joint instability was indicated but joint instability testing was unable to be performed. There was a history of recurrent effusion. The Veteran had a meniscus (semilunar cartilage) condition. The Veteran had a meniscal tear with frequent episodes of joint locking and joint pain. The Veteran’s total knee replacement surgery resulted in intermediate degrees of residual weakness, pain or limitation of motion. The Veteran used a brace and cane occasionally as assistive devices. And the examiner noted that the condition impacted the Veteran’s ability to perform any occupational task. The examiner indicated that the examination neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups and with repetitive use over time. The examiner also indicated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In an April 2019 VA treatment note, a clinician indicated that the Veteran had a right knee replacement in January and that his wound healed. The examiner also noted that the Veteran was still having some pain and had not gotten to his usual activity level but was gradually getting there. See June 2019 Capri, p.3. Period prior to January 16, 2019 Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at his April 2017 Disability Benefits Questionnaire (DBQ) examination and his January 2018 VA examination, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 30 percent disability rating is warranted for the Veteran’s service-connected right knee disability for the period prior to January 16, 2019. The Board notes that for a 30 percent evaluation, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. On the April 2017 DBQ examination and January 2018 VA examination, flexion limited to 15 degrees was not demonstrated. However, on the examination the Veteran reported that he had functional impairment as he could not walk or run and that walking downstairs caused his knee to swell. The Veteran also reported that he had progressive right knee pain and stiffness. The Veteran also indicated that during a flare-up he experienced increased pain, swelling and decreased range of motion, 1-2 times a week, with moderate severity for several hours and it was noted that there was functional loss and impairment due to pain and decreased range of motion with swelling that interfered with his regular activities. Additionally, it was noted that the Veteran occasionally used a cane while the examiner indicated that the Veteran’s right knee disability impacted his ability to perform any type of occupational task as he was unable to sit, stand or walk for prolonged periods. Based on the reported symptomatology of the Veteran’s reported functional impairment at his April 2017 DBQ examination and January 2018 VA examination, the Board finds that when affording the Veteran the benefit of the doubt that an initial 30 percent rating is warranted for the Veteran’s right knee disability for the period prior to January 16, 2019. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran’s right knee disability warrants a higher initial 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for an evaluation in excess of 30 percent for the right knee disability. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant an increased rating for the knee disability in excess of 30 percent, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran had full extension of the right knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261. Additionally, there is no showing of instability even upon specific instability testing as the April 2017 DBQ and January 2018 VA examination both specifically indicated that the Veteran had no history of recurrent subluxation or lateral instability. Accordingly, as the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted for the right knee. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. The Board also notes that the Veteran has been noted to have a history of recurrent effusion. Notably, Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion. 38 C.F.R. § 4.71a. Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a (2019). The Board finds that a separate or higher initial rating is not warranted under Diagnostic Codes 5258 or 5259. As the Veteran has already been awarded an initial 30 percent rating in the right knee based, in part, on pain and limitation of motion, a separate disability rating under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation. Thus, for this reason, separate ratings under these codes would again violate 4.14. Accordingly, the Board finds that an initial 30 percent rating, but no higher, for the right knee disability is warranted for the period prior to January 16, 2019. Period since March 1, 2020 As noted above, for the period since March 1, 2020, the Veteran has a 30 percent disability rating for his right knee disability status post right knee replacement surgery. Upon review of the evidence, the Board finds that, when reasonable doubt is resolved in the Veteran’s favor, his residuals status post right knee replacement due to degenerative osteoarthritis has resulted in chronic residuals consisting of weakness, pain and limitation motion, such that a 60 percent rating under Diagnostic Code 5055, but no higher, is warranted as of March 1, 2020. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Boards finds that the Veteran is competent to report his perceived level of pain and weakness, and the Board has no reason to doubt his credibility in indicating his pain level or his other residuals symptoms of weakness and decreased functional capacity. The Board also acknowledges that April 2019 VA examiner noted that the Veteran has “intermediate” degrees of residual weakness, pain, or limitation of motion, which more closely approximates a 30 percent rating under Diagnostic Code 5055. While the examiner noted intermediate, rather than severe chronic residuals, the Board notes that the sheer absence of a finding of “severe” painful motion by the VA examiners does not prevent the Board from applying the higher rating. See 38 C.F.R. § 4.6 (The words “moderate,” and “severe,” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.”). The Board finds that in considering all of the evidence, to include the Veteran’s consistent reports through the period at issue, the assignment of a 60 percent rating under Diagnostic Code 5055 for the period since March 1, 2020 is warranted. However, a rating in excess of 60 percent is not warranted for the Veteran’s residuals status post right knee replacement disability. As noted above, a 60 percent rating is the highest rating available under Diagnostic Code 5055, absent the year following implantation of prosthesis. Additionally, the Board finds that the Veteran’s pain upon range of motion and weakness are accounted for under Diagnostic Code 5055 and that separately applying Diagnostic Codes 5260 or 5261 would result in pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62 (1994). The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a right knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, a current meniscus disability, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 do not apply. The Board again notes that the Veteran underwent meniscectomy of his right knee in 1972. Notably, Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion while Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a (2019). However, the Board finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259. While the Veteran underwent meniscectomy in 1972, any pain is already contemplated by the current 60 percent disability rating assigned for the right knee disability. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2014) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Accordingly, a 60 percent rating is clearly the maximum rating assignable for the Veteran’s right knee replacement with limited range of motion. An increased schedular rating is therefore not available for the period since January 16, 2019. However, while a rating in excess of 60 percent is not warranted for status-post right total knee replacement, the Board finds that a separate 10 percent rating is warranted for mild instability of the right knee. Notably, while the April 2019 VA examiner indicated that there was no history of recurrent subluxation or lateral instability, she noted recurrent effusion. Additionally, while joint stability testing was unable to be performed, the April 2019 VA examiner noted that joint instability was indicated. The Secretary has repeatedly conceded before the Court of Appeals for Veterans Claims that the law provides for separate ratings under Diagnostic Codes 5055 and 5257. Since the assigned 60 percent rating under Diagnostic Code 5055 does not contemplate instability, the Board finds a separate 10 percent rating is warranted for slight anterior instability of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257. 38 C.F.R. § 4.14. However, while his disorder warrants a separate 10 percent rating, the Board finds that higher evaluations for “moderate” or “severe” instability are not warranted based upon the evidence of record. Notably, the April 2019 VA examination again noted that there was no recurrent subluxation or dislocation. Overall, the Board finds this does not suggest moderate instability. Thus, while the Board finds that the Veteran is entitled to a separate instability rating for the right knee, the medical evidence of record does not show a clinical diagnosis or probative evidence to support a moderate or severe disorder. (Continued on the next page)   As a result, a separate 10 percent disability rating for right knee instability is granted. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.