Citation Nr: 20044534 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 15-00 495A DATE: July 2, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. A disability rating in excess of 10 percent for limitation of extension of the left knee prior to October 24, 2011 is denied. A disability rating of 40 percent for limitation of extension of the left knee is granted from October 24, 2011. A disability rating in excess of 10 percent for limitation of extension of the right knee prior to October 24, 2011 is denied. A disability rating of 40 percent for limitation of extension of the right knee is granted from October 24, 2011. A separate 10 percent disability rating for limitation of flexion of the left knee is granted from March 2, 2017. FINDINGS OF FACT 1. In August 2019 correspondence from the Veteran’s attorney, prior to the promulgation of a decision in the appeal, the Veteran’s attorney withdrew the Veteran’s claim for entitlement to a TDIU. 2. Prior to October 24, 2011, the Veteran’s degenerative joint disease of the left knee was manifested by noncompensable limitation of motion and chronic pain. 3. The evidence of record is at least in equipoise as to whether the Veteran’s degenerative joint disease of the left knee was manifested by limitation of extension to 30 degrees or more during flare-ups from October 24, 2011. 4. Prior to October 24, 2011, the Veteran’s degenerative joint disease of the right knee was manifested by noncompensable limitation of motion and chronic pain. 5. The evidence of record is at least in equipoise as to whether the Veteran’s degenerative joint disease of the right knee was manifested by limitation of extension to 30 degrees or more during flare-ups from October 24, 2011. 6. The evidence of record demonstrates that the Veteran’s degenerative joint disease of the left knee manifested in limitation of flexion to 45 degrees or less from March 2, 2017. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. For the period on appeal prior to October 24, 2011, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee based on painful limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5260. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a disability rating of 40 percent for degenerative joint disease of the left knee based on limitation of extension have been met from October 24, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 4. For the period on appeal prior to October 24, 2011, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee based on painful limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for a disability rating of 40 percent for degenerative joint disease of the right knee based on limitation of extension have been met from October 24, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent disability rating for limitation of flexion of the left knee have been met from March 2, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1971 to August 1991. In October 2019, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for partial remand (JMPR), vacating and remanding that part of the August 2018 Board decision that denied entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left and right knee prior to November 6, 2015, and in excess of 40 percent from November 6, 2015. As an initial matter, the JMPR noted that the Veteran was no longer pursuing the issue of entitlement to a disability rating in excess of 10 percent for lateral instability of the left knee, and the Court dismissed the appeal of that part of the August 2018 Board decision. Additionally, the Court did not disturb the favorable finding in the August 2018 Board decision, awarding entitlement to a separate rating for lateral instability of the right knee with a 10 percent rating. As such, the issue of entitlement to a disability rating in excess of 10 percent for lateral instability of the left and right knee, respectively, were not a subject of the October 2019 JMPR, and will not be addressed in the decision herein pertaining to the Veteran’s increased rating claim for his bilateral knee disability. As an additional preliminary matter, the October 2019 JMPR noted that the issues of entitlement to service connection for a respiratory condition, and entitlement to a TDIU were remanded in the August 2018 Board decision. As such, these issues were not within the jurisdiction of the Court and were not a subject of the October 2019 JMPR. However, in relation to the claim for entitlement to a TDIU, the Board observes that the Veteran’s attorney submitted a valid withdrawal of this issue received by VA on August 30, 2019. Under 38 C.F.R. § 19.55 (formerly 38 C.F.R. § 20.204 (2018)), the withdrawal as to any or all issues involved in an appeal may be made by the Veteran or by his authorized representative at any time before the Board promulgates a decision. Notably, the withdrawal of an appeal that has been transferred to the Board, and prior to promulgation of a decision, is effective when received by the Board. 38 C.F.R. § 19.55(b)(3). Therefore, the issue of entitlement to a TDIU was withdrawn effective August 30, 2019, and there remains no allegation of error of fact or law for appellate consideration. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Accordingly, the Board does not have jurisdiction to review the appeal for the issue of entitlement to a TDIU, and it is dismissed. Regarding the part of the of the August 2018 Board decision that denied entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left and right knee prior to November 6, 2015, and in excess of 40 percent from November 6, 2015, the JMPR found that the Board failed to provide an adequate statement of reasons or bases when it denied the Veteran’s claims for increased ratings. In particular, the JMPR noted that the Board failed to consider the applicability of 38 C.F.R. §§ 4.40 and 4.45 in denying entitlement to higher ratings for the Veteran’s bilateral knee disabilities for the period on appeal prior to and after November 6, 2015. Specifically, the JMPR found that the Board failed to properly consider the guiding regulatory principles concerning functional loss caused by pain that limits the ability of the Veteran to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. See also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Court remanded the Veteran’s increased rating claims for his bilateral knee disabilities for the Board to properly consider the evidence of record concerning the Veteran’s various functional impairments in the context of regulatory sections 4.40 and 4.45 and DeLuca, and to provide an adequate statement on whether the noted manifestations of functional loss entitle the Veteran to higher ratings for the periods on appeal. Increased Rating – Bilateral Knee Disability Knee disabilities are unique, as they are one of a few orthopedic disabilities in which multiple ratings may be assigned based on separate and distinct manifestations of the same disability. 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 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). Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is applied for each major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Limitation of flexion is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. A noncompensable disability rating is assigned for limitation of flexion to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a maximum 30 percent rating is warranted for flexion limited to 15 degrees. Limitation of extension is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5261. A noncompensable disability rating is assigned for limitation of extension to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. VA’s General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The Veteran is separately rated for lateral instability of the bilateral knees with an evaluation of 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted in the JMPR, the issues of entitlement to a disability rating in excess of 10 percent for lateral instability of the left and right knee, respectively, are not currently before the Board and will not be discussed in the decision herein. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a maximum 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. Procedurally, the Veteran was awarded service connection for degenerative joint disease of the left knee from April 17, 2009, with an initial evaluation of 10 percent based on x-ray evidence of arthritis with noncompensable limitation of motion due to pain. See 38 C.F.R. §§ 4.27, 4.71a, Diagnostic Codes 5010-5260. In a December 2015 rating decision, the evaluation of the Veteran’s service-connected left knee disability was increased to 40 percent from November 6, 2015 based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Additionally, in the December 2015 rating decision, the Veteran was awarded service connection for degenerative joint disease of the right knee from March 4, 2011, with an initial evaluation of 10 percent based on x-ray evidence of arthritis with noncompensable limitation of motion due to pain. See also July 2019 rating decision. In the same December 2015 rating decision, the evaluation of the Veteran’s service-connected right knee disability was increased to 40 percent from November 6, 2015 based on limitation of extension. The Veteran’s attorney contends that the evidence of record since 2009 establishes that the Veteran’s bilateral knee disability resulted in functional impairment warranting a disability rating in excess of 10 percent prior to November 6, 2015, and in excess of 40 percent thereafter. See December 2019 correspondence. In reviewing the evidence of record concerning the severity and functional impairment of the Veteran’s service-connected bilateral knee disabilities, he was initially afforded a VA knee examination in December 2009. The Veteran reported swelling of his bilateral knees, and daily pain that was diffuse in nature when climbing stairs or with prolonged sitting. The Veteran denied weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, or decrease in endurance. The Veteran reported flare-ups about once per week that was precipitated by climbing stairs and prolonged sitting, which alleviated with time. The examiner reported the Veteran’s bilateral knees did not demonstrate edema, effusion, instability, weakness, tenderness to palpation, redness, or heat. The examiner observed evidence of pain with range of motion testing, and decreased range of motion and guarding with passive range of motion. On examination, left knee flexion was measured to 125 degrees actively, and 130 degrees with guarding passively. The examiner indicated pain began at 125 degrees. The examiner indicated there was no additional loss of range of motion of the left knee from 125 degrees with repetition. Left knee extension was measured to 0 degrees actively and passively, without pain, and there was no additional loss of range of motion with repetition. Right knee flexion was measured to 125 degrees actively, and 135 degrees passively. The examiner indicated pain began at 130 degrees. The examiner indicated functional range of motion for right knee flexion was measured to 130 degrees, and there was no additional loss of range of motion with repetition. Right knee extension was measured to 0 degrees actively and passively, without pain, and there was no additional loss of range of motion with repetition. Diagnostic imaging of the bilateral knees revealed degenerative changes of all compartments, with no joint effusion. The examiner reported the Veteran’s gait appeared to be normal. The Veteran reported he was able to stand for 10 to 15 minutes, and walk approximately 1/8 of a mile. Private treatment records from S.R.M.C. were associated with the Veteran’s claims file in November 2011 and April 2019. See October 2011 VA Form 21-4142. A January 2011 S.R.M.C. treatment record indicates the Veteran had full range of motion of all extremities. A February 2011 S.R.M.C. treatment record indicates range of motion was intact for all extremities. In a May 2011 S.R.M.C. treatment record, the Veteran reported he normally went to the gym daily. In a May 2011 VA urgent care note, the Veteran reported intermittent bilateral knee pain that increased with standing or walking. The Veteran reported his bilateral knee pain on the date of care was 7/10. The Veteran reported his knees would swell up at times. A July 2011 S.R.M.C. treatment record indicated range of motion was intact for all extremities. In an August 2011 VA physical therapy consult, the Veteran reported his activities included treadmill, stationary bike, Nu-step, and walking around a track. The Veteran indicated he did not think that he required the use of a cane to ambulate. In an October 2011 VA examination, the Veteran reported symptoms of his right knee disability included weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness, and pain. The Veteran denied, heat, redness, locking, deformity, drainage, effusion, subluxation, or dislocation of his right knee. The Veteran reported experiencing flare-ups of his right knee disability as often as three times per week, lasting for two days at a time. The Veteran reported the severity of flare-ups of his right knee disability was a 5/10 (with 10 being the worst). The Veteran reported flare-ups of his right knee disability were occurring spontaneously and were precipitated by physical activity. The Veteran reported he was unable to run, walk, or climb stairs during flare-ups, and that he had difficulty with standing and walking. The Veteran reported that his right knee disability impaired his ability to perform household chores. The examiner reported the Veteran demonstrated tenderness and guarding of movement of the bilateral knees. The examiner reported the Veteran’s bilateral knees showed no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, drainage, subluxation, locking pain, genu recurvatum, crepitus, or ankylosis. On range of motion testing of the bilateral knees, flexion was measured to 90 degrees and extension was measured to 0 degrees. The examiner indicated there was evidence of pain at 90 degrees flexion bilaterally. In a statement from the Veteran received by VA in January 2013, the Veteran reported he experienced sporadic throbbing in both knees. See December 2012 VA Form 21-4138. The Veteran reported functional impairment due to his bilateral knee disability included no prolonged walking, an inability to travel up and down stairs, an inability to squat, difficulty rising from or sitting in a chair, and an inability to lift heavy objects. See also January 2015 correspondence from the Veteran’s attorney (left knee disability results in functional limitations due to pain). In a May 2015 VA primary care note, the Veteran reported chronic bilateral knee pain with swelling of the left knee. The provider noted there was no restriction of range of motion in the Veteran’s left knee. The Veteran was afforded another VA knee examination in November 2015. The Veteran reported his left knee pain had increased in severity, localized under the patella, and that he was now experiencing swelling and popping. The Veteran reported sharp pain with pivoting. The Veteran reported his left knee locked and indicated he had to manually flex it. The Veteran reported throbbing pain in his right knee that had recently increased in severity, as well as swelling and popping. The Veteran reported he utilized a cane, in part, due to knee pain. The Veteran reported that sleeping on his right side aggravated his left knee pain, which he described as sharp and radiated from above the knee to the lateral lower leg. The Veteran also indicated he experienced pain with laying on either side, and that he would be in more constant pain if he walked more. The Veteran reported flare-ups of his bilateral knee disability that occurred with walking and lasted for about a week. The Veteran indicated that functional impairment due to his bilateral knee disability included an inability to climb stairs. Right knee flexion was measured to 90 degrees, and extension was measured to 20 degrees. Left knee flexion was measured to 80 degrees, and extension was measured to 20 degrees. The examiner indicated that the range of motion of the Veteran’s bilateral knees contributed to functional loss in that his limited flexion and extension impaired his gait. The examiner reported that the Veteran exhibited pain on flexion and extension of the bilateral knees, and with weight bearing. The examiner reported there was objective evidence of tenderness at the outer later knee and patella bilaterally. The examiner reported there was objective evidence of crepitus of the left knee only. The examiner reported the Veteran was able to perform repetitive use testing with at least three repetitions, which resulted in additional functional loss bilaterally. The examiner indicated that pain, fatigue, and weakness/lack of endurance would significantly limit functional ability of the right knee with repeated use over time and with flare-ups. The examiner indicated that pain, fatigue, and lack of endurance would significantly limit functional ability of the left knee with repeated use over time and during flare-ups. The examiner estimated that flexion would be limited to 80 degrees, and extension would be limited to 30 degrees bilaterally with repeated use over time and during flare-ups. The examiner reported that additional contributing factors of the Veteran’s bilateral knee disability included swelling, disturbance of locomotion, and interference with standing. The examiner reported the Veteran did not have a reduction in muscle strength of the left or right knee. The examiner reported the Veteran did not have muscle atrophy. The examiner reported the Veteran did not have ankylosis of the left or right knee. The examiner reported the Veteran had a history of recurrent effusion. The examiner reported the Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner reported the Veteran had regular use of knee braces and a cane for his bilateral knee disability. The examiner reported the Veteran utilized a rollator to avoid putting too much weight on his lower extremities during flare-ups or when walking longer distances. The Veteran was afforded another VA knee examination in March 2017. The Veteran reported that his bilateral knee condition had increased in severity since the November 2015 VA examination. The veteran reported he experienced increased bilateral knee pain and swelling that was exacerbated by walking. The Veteran reported his bilateral knees frequently popped with movement, and that he experienced locking and buckling of his bilateral knees. The Veteran reported a pain level of 6/10 in his bilateral knees daily, and 10/10 in pain intensity with flare-ups of his bilateral knee disability. The Veteran reported increased difficulty with ascending and descending stairs, and increased pain and stiffness with prolonged sitting or standing. The Veteran reported he was unable to walk more than approximately 50 yards before having to stop due to bilateral knee pain, and that he was unable to run. On initial range of motion testing, right knee flexion was measured to 65 degrees, and extension was measured to 0 degrees. Left knee flexion was measured to 50 degrees, and extension was measured to 0 degrees. The examiner indicated the Veteran demonstrated evidence of pain on flexion and with weight bearing bilaterally. The examiner reported objective evidence of tenderness to palpation at the medial and lateral joint lines, the patella, and the popliteal fossa bilaterally. The examiner reported that pain resulted in additional functional loss with repeated use over time and during flare-ups of the Veteran’s bilateral knee disability. The examiner estimated that flexion would be limited to 55 degrees in the right knee and 40 degrees in the left knee with repeated use over time and during flare-ups. The examiner reported the Veteran demonstrated reduced muscle strength (3/5) for flexion and extension bilaterally. The examiner reported the Veteran did not have muscle atrophy or ankylosis of the left or right knee. The examiner reported the Veteran had a history of recurrent effusion. The examiner reported that the functioning of the Veteran’s lower extremities was not so diminished by his bilateral knee disability that he would be equally well served by an amputation with prosthesis. The Veteran reported that functional impairment due to his bilateral knee disability included an inability to run, walk more than approximately 50 yards, sit or stand for extended periods, and squat or kneel. In an April 2017 VA primary care note, the Veteran indicated his chronic bilateral knee pain was increasing in severity, and that he needed knee braces. In an April 2017 VA urgent care note, the Veteran reported sharp knee pain (8/10) bilaterally. The provider reported the Veteran demonstrated tenderness with mild swelling of the knee joints bilaterally, with a slight decrease in flexion and extension. In a statement from the Veteran received by VA in May 2017, he reported experiencing knee pain, swelling, stiffness, and popping in his left and right knee. See April 2017 VA Form 21-4138. The Veteran reported flare-ups of his bilateral knee disability that occurred about two times per month, and lasted for five to eight days. The Veteran reported flare-ups with walking distances, trying to bend over, and stoop or kneel. The Veteran again reported his bilateral knee pain was 10/10 during flare-ups, as he did at his March 2017 VA examination. The Veteran underwent an MRI of the bilateral knees through VA in April 2017. The MRI imaging of the left knee revealed moderately severe tricompartmental degenerative arthrosis with associated cartilage abnormalities. The MRI imaging of the right knee revealed bone infarctions within the distal femur, marrow edema within the lateral tibial plateau and to a lesser degree the lateral femoral condyle, lateral meniscal tear of the anterior and posterior horn, and knee joint effusion. In an August 2017 VA orthopedic surgery consult, the provider indicated the Veteran had severe osteoarthritis of the bilateral knees. On physical examination, the Veteran’s knees did not demonstrate effusion, and muscle strength was indicated as normal (5/5). Flexion was measured to 90 degrees, extension was measured to 0 degrees. In a June 2018 disability questionnaire completed by the Veteran, he reported bilateral knee pain, swelling, buckling, weakness, snapping/grinding noise when moving, and an inability to straighten his legs. The Veteran reported he experienced such knee symptoms on a daily basis. The Veteran reported flare-ups approximately every 10 days. The Veteran reported he required the use of a walking chair or a wheelchair when flare-ups occurred. In consideration of the Veteran’s contentions and the Veteran’s reported functional impairments, in the context of regulatory sections 4.40 and 4.45 and DeLuca, the Board finds that a 40 percent evaluation for the Veteran’s service-connected left and right knee disability, respectively, is warranted from October 24, 2011. In this regard, the Veteran reported during the October 2011 VA examination that functional impairments due to his bilateral knee disability included an inability to run, walk, or climb stairs during flare-ups, and difficulty with standing, walking, and performing household chores. The Veteran reported similar functional impairments due to his bilateral knee disability in a statement received by VA in January 2013, and during the VA examination in November 2015. The Board assigns probative weight to the November 2015 VA examiner’s report that pain, fatigue, and weakness/lack of endurance would significantly limit the functional ability of the Veteran’s bilateral knees with repeated use over time and during flare-ups. Additionally, the Board assigns probative weight to the November 2015 VA examiner’s estimate that flexion would be limited to 80 degrees, and extension would be limited to 30 degrees bilaterally with repeated use over time and during flare-ups. For the period on appeal prior to November 6, 2015, the evidence of record supports a finding that the Veteran experienced approximately the same functional limitations due to his bilateral knee disability since October 2011. Given the Veteran’s functional limitations for the period on appeal prior to November 6, 2015, the Board resolves all reasonable doubt in favor of the Veteran in finding that his bilateral knee flexion was limited to 80 degrees and extension to 30 degrees with repeated use over time and during flare-ups since October 2011. Accordingly, a 40 percent evaluation for the Veteran’s left and right knee disability, respectively, is warranted based on limitation of extension from the date of examination on October 24, 2011, which is the first evidence of an increase in the severity and frequency of functional limitations due to Veteran’s bilateral knee disability. The evidence of record is against a finding that a disability rating in excess of 10 percent for the Veteran’s bilateral knee disability is warranted prior to October 24, 2011. In October 2011 the Veteran reported an inability to run, walk, or climb stairs during flare-ups. Prior to October 2011, the Veteran reported swelling and diffuse pain in his knees when climbing stairs or with prolonged sitting. Additionally, for the period on appeal prior to October 2011, private treatment records from S.R.M.C. noted the Veteran had full range of motion of all extremities. In May 2011, the Veteran reported he normally went to the gym daily. As late as August 2011, the Veteran reported his activities included treadmill, stationary bike, Nu-step, and walking around a track. Although the Veteran reported pain due to his documented degenerative joint disease of the bilateral knees prior to October 2011, such was shown to be manifested by noncompensable limitation of motion. The Board notes that no evaluations or estimations of limitation of extension of either knee, to include during flare-ups, dated subsequent to the November 2015 examination reveal limitations warranting the assignment of a rating higher than 40 percent, respectively. With respect to limitation of flexion however, the Board finds entitlement to a separate evaluation of 10 percent for limitation of flexion of the left knee is warranted from March 2, 2017, but no earlier. Indeed, the Veteran reported an increase in the severity of his bilateral knee disability during the March 2017 VA knee examination, indicating that during flare-ups his pain is rated 10/10. The examiner estimated that flexion would be limited to 55 degrees in the right knee and 40 degrees in the left knee with repeated use over time and during flare-ups. At no point earlier than this examination, to include at the previously-discussed November 2015 VA examination (which also included estimates of functional loss during flare-ups), has the Veteran’s left knee flexion been so severe as to warrant the assignment of a separate compensable rating. Accordingly, based on loss of range of motion to 40 degrees during a flare-up, a separate 10 percent rating for limitation of left knee flexion is granted, effective March 2, 2017. Because limitation of flexion of the right knee is estimated to be 55 degrees during periods of flare-ups or after repetitive use, a separate 10 percent rating for right knee limitation of flexion is not warranted. The Board has considered whether any other disability ratings based on separate and distinct manifestations of his bilateral knee disability are warranted. As noted above, under Diagnostic Code 5258, a separate 20 percent disability rating for dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion is available. The criteria under Diagnostic Code 5258 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision means that all the conditions listed in the provision must be met). Although an April 2017 MRI revealed cartilage abnormalities of the left knee, and lateral meniscal tear of the anterior and posterior horn of the right knee, the Veteran’s bilateral knee pain symptoms have already been specifically contemplated in the currently assigned ratings for flexion and extension, both of which were raised for each knee based on the impact of pain symptoms under the provisions of 38 C.F.R. §§ 4.40 and 4.45 (i.e., Deluca factors). As such, it would violate the rule against pyramiding to compensate the Veteran’s knee pain symptomatology again under Diagnostic Code 5258. The Board adds that is more advantageous for the Veteran’s pain symptoms to be rated under Diagnostic Codes 5260 and 5261, as the maximum permissible rating under Diagnostic Code 5258 is only 20 percent. Indeed, higher ratings that contemplate functional loss due to pain for each knee have already been established under these limitation of motion codes. The medical evidence of record has not demonstrated, nor has the Veteran or his attorney asserted, that a separate disability rating is warranted for ankylosis of the knee under Diagnostic Code 5256; symptoms due to the removal of semilunar cartilage under Diagnostic Code 5259; malunion or nonunion of the tibia and fibula under Diagnostic Code 5262; or, genu recurvatum under Diagnostic Code 5263. In sum, disability rating in excess of 10 percent for limitation of extension of the left knee and right knee prior to October 24, 2011 is denied. However, disability ratings of 40 percent, but no higher, for limitation of extension of both the left knee and the right knee, respectively, are granted from October 24, 2011. Finally, a separate 10 percent disability rating for limitation of flexion of the left knee is granted from March 2, 2017. To these extents only, the appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.