Citation Nr: 20055804 Decision Date: 08/24/20 Archive Date: 08/24/20 DOCKET NO. 12-35 548 DATE: August 24, 2020 ORDER From February 24, 2010 to March 14, 2016, subject to the laws and regulations governing the award of monetary benefits, entitlement to a 30 percent rating for post-operative residuals, comminuted fracture, junction of middle and distal third of left tibia (left knee condition) is granted. Reduction in disability rating from 30 percent to 10 percent, effective April 29, 2017, for limited motion (extension) of left knee was improper, restoration to 30 percent is granted. From March 14, 2016 to February 20, 2019, entitlement to a rating in excess of 30 percent for limited extension is denied. From March 14, 2016 to February 20, 2019, subject to the laws and regulations governing the award of monetary benefits, entitlement to a separate 10 percent rating for limited flexion manifested by left knee disability is granted. From March 14, 2016 to February 20, 2019, subject to the laws and regulations governing the award of monetary benefits, entitlement to a separate 20 percent rating for meniscal condition manifested by left knee disability is granted. From March 14, 2016 to February 20, 2019, subject to the laws and regulations governing the award of monetary benefits, entitlement to a separate 20 percent rating for lateral instability manifested by left knee disability is granted. REMANDED From April 1, 2020, entitlement to a rating in excess of 30 percent for left total knee replacement (formerly evaluated as limitation of motion, left knee post operative residuals, comminuted fracture, junction of middle & distal third of left tibia with meniscal tear & ankle & knee arthritis) (left knee disability), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 10, 2015 is remanded. FINDINGS OF FACT 1. From February 24, 2010 to March 14, 2016, the Veteran’s left knee disability more nearly approximated marked knee disability. 2. In a November 2017 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the Veteran’s 30 percent rating for limited motion of left knee to 10 percent, effective April 29, 2017. 3. Before implementing the reduction, the AOJ/RO failed to issue a rating decision proposing the rating reduction outlining the material facts, and providing the Veteran an opportunity to submit evidence and elect a predetermination hearing. 4. From March 14, 2016 to February 20, 2019, the Veteran’s left knee condition was not manifested by limited extension to 30 degrees. 5. From March 14, 2016 to February 20, 2019, the Veteran’s left knee condition was manifested by painful and limited motion with flexion. 6. From March 14, 2016 to February 20, 2019, the Veteran’s left knee condition was manifested by meniscal tear with frequent episodes of effusion and locking. 7. From March 14, 2016 to February 20, 2019, the Veteran’s left knee condition was manifested by moderate instability. CONCLUSIONS OF LAW 1. From February 24, 2010 to March 14, 2016, the criteria for entitlement to a 30 percent rating for post-operative residuals, comminuted fracture, junction of middle and distal third of left tibia (left knee disability) have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2019). 2. The reduction in disability rating from 30 percent to 10 percent, effective April 29, 2017, for limited motion of left knee was improper, the criteria to restoration to 30 percent have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105 (e), 3.344 (2019). 3. From March 14, 2016 to February 20, 2019, the criteria for entitlement to a rating in excess of 30 percent for limited extension have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2019). 4. From March 14, 2016 to February 20, 2019, the criteria for entitlement to a 10 percent rating for limited flexion have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2019). 5. From March 14, 2016 to February 20, 2019, the criteria for entitlement to a separate 20 percent rating for meniscal condition have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2019). 6. From March 14, 2016 to February 20, 2019, the criteria for entitlement to a separate rating 20 percent rating for lateral instability have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1977 to May 1977. This appeal to the Board of Veteran’s Appeals (Board) arose from an April 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See May 2010 Notice of Disagreement; December 2012 Statement of the Case (SOC); January 2013 Substantive Appeal (VA Form 9). The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2015 by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In April 2015 and November 2015, the Board remanded the claims for further evidentiary development. During the pendency of the remands, In June 2015, the AOJ granted a TDIU rating, effective March 10, 2015. In June 2016, the AOJ discontinued the 20 percent rating for the Veteran’s left leg disability under Diagnostic Code 5262, and assigned a 30 percent rating for left knee disability, under Diagnostic Code 5261, effective March 14, 2016. In January 2017, the Board remanded the claims again for further evidentiary development. During the pendency of this remand, in November 2017, the AOJ decreased the Veteran’s 30 percent rating to 10 percent rating, effective April 29, 2017. In February 2018, the Board remanded the claims for further evidentiary development. During the pendency of this remand, in March 2020, the AOJ granted a 100 percent rating for left knee replacement, effective February 20, 2019. The AOJ assigned a 30 percent rating for the left knee disability from April 1, 2020. Since the maximum benefit was not granted now or during the pendency of the appeal period, the issues of entitlement to a higher evaluation remains on appeal, and have been characterized based on the evidence of the record. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed the claim for an increased rating, and continues to the present time 1. From February 24, 2010 to March 14, 2016, entitlement to a rating in excess of 20 percent for post-operative residuals, comminuted fracture, junction of middle and distal third of left tibia (left knee disability). The Veteran filed his claim for entitlement for an increased rating for his left leg disability in February 2010. In the April 2010 rating decision, the AOJ increased the rating from 10 percent to 20 percent, under Diagnostic Code 5262. The Veteran subsequently appealed the decision. The Veteran was assigned a 10 percent rating under Diagnostic Code 5262 since September 1, 1983. Therefore, his rating under Diagnostic Code 5262 is protected. See 38 C.F.R. § 3.951(b). A disability which has continuously been rated at or above any evaluation of disability for 20 or more years for VA compensation purposes will not be reduced to less than such evaluation except upon a showing that the rating was based on fraud. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b). The fact that a 20 percent rating was assigned under Diagnostic Code 5262, effective February 2010, whereas a 10 percent rating had previously been assigned under that Diagnostic Code since 1983, does not alter its protected nature. Preliminarily, the Board will determine whether the change of evaluation from Diagnostic Code 5262 to Diagnostic Code 5261 resulted in a reduction of the Veteran’s disability rating. In this current matter, the Veteran’s left leg disability was evaluated under Diagnostic Code 5262, which evaluates the impairment of the tibia and fibula. 10 percent rating is warranted for malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. Prior to February 2010, the Veteran was awarded a 10 percent rating for a slight disability. From February 2010 to March 2016, the Veteran was awarded a 20 percent rating for moderate disability. From March 2016, the Veteran was awarded a 30 percent rating under Diagnostic Code 5261, which evaluates limited motion, specifically extension, of the left knee. The Board determines that the change in diagnostic codes did not result in the actual or constructive reduction of the Veteran’s disability. The change from Diagnostic Code 5262 to 5261 actually allowed for a higher rating to be assigned to the Veteran, focusing on the painful and limited extension as a result of the Veteran’s left knee disability. The impairment of the Veteran’s disability is more closely captured based on the review of the medical evidence. Under Diagnostic Code 5262, the medical evidence would have to objectively show malunion or nonunion of the tibia and fibula. Additionally, the change of Diagnostic Codes allow for evaluations of separate and distinct manifestations of the Veteran’s disability, while as Diagnostic Code 5262 evaluated the severity of the disability more broadly, along with clinical evidence showing malunion or nonunion. Now, the Board will determine if the Veteran is entitled to a rating in excess of 20 percent prior to March 16, 2016 for the left knee disability. Turning now to the evidence of the record, in March 2010, the Veteran asserted that he experienced severe leg joint pain. He also stated that he limped and felt that his leg was giving out. The Veteran endorsed cracking of the leg. See March 2010 Statement in Support of Claim (VA Form 21-4138). At the March 2010 VA examination, the Veteran reported pain in his ankle, tibia, hip, and leg. The pain occurred constantly. The Veteran described the pain as crushing, burning, aching, and cramping. The severity level of pain was reported to be an eight out of ten. The pain could be exacerbated by physical activity and during the nighttime. It was relieved by rest. When the pain occurred, the Veteran would have to sit and experienced uncomfortable sleeping. The Veteran described additional symptoms of bone cracking and knee getting stuck. The Veteran reported hospitalization and undergoing surgeries. Functional impairment was that the Veteran could not engage in too much activity due to the pain. The Veteran’s gait was noted to be normal. Examination of the feel revealed evidence of abnormal weight-bearing. Examination of both the left tibia and fibula revealed normal findings. The left knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. There was no locking pain, genu recurvatum, or crepitus, or ankylosis. Range of motion was noted as follows: flexion was 110 degrees; extension was 110 degrees. The stability tests yielded normal results for the left knee. The x-ray report of the left tibia and fibula showed post-traumatic change mid shaft of the tibia with some adjacent metallic debris. There was no indication of malunion to the os calcis on the left. There was no indication of malunion of the tibia on the left. The diagnosis rendered was status/post fracture of the left tibia/fibula. VA Treatment Records from January 2010 to March 2010 documents the Veteran’s treatment of his left knee. In a February 2010 Nurse Practitioner Note, physical examination of the left knee showed palpable popping movement of the knee with flexion. There was tenderness with palpation, especially the lateral post knee. The assessment given was left knee pain with “locks up, gives way, and clicks.” In a March 2010 Outpatient Consult Note, the Veteran complained of left knee pain, spreading up and down the leg over the last three to four months. Upon observation, the Veteran was able to walk without showing instability. No significant tenderness was noted. Full range of motion was noted without significant tenderness. The assessment given was left knee pain, with no gross instability noted. See April 2010 VA Medical Treatment Records. In the May 2010 NOD, the Veteran asserted that he was offered physical therapy, which at the time he declined because of severe leg and knee pain. In July 2010, the Veteran complained of knee pain, worsening in the last four years. It was noted that the Veteran was unable to tolerate physical therapy due to pain. The Veteran complained of popping and locking on his knee. The severity level of pain was noted as an eight. The duration of the current episode was intermittent. The Veteran characterized the pain as dull and aching. The pain was aggravated with weight bearing. A magnetic resonance imaging (MRI) scan showed small free edge tear at the body of the lateral meniscus with blunting of the anterior horn associated with mild chondromalacia within lateral compartment of the knee, a very small tear of the posterior horn of the medial meniscus, minimal tendinosis of the patellar tendon, severe cartilage loss in the patellofemoral compartment, small suprapatellar joint effusion, and small bakers cyst with leakage surrounding the pes anserinus tendons. The assessment given was degenerative joint disease (DJD) of the left knee. See July 2010 Orthopedics Surgery Physician Assistant Note (August 2010 VA Medical Treatment Records). In August 2010, the Veteran expressed that he was experiencing extreme knee pain, explaining that his leg gave out frequently. The Veteran wore a knee brace, which he proclaimed did not help. The Veteran stated he received steroid shots in the knee. The Veteran endorsed knee locking and loud cracking noise. See August 2010 Statement in Support of Claim (VA Form 21-4138). In September 2010, the Veteran reported that the left knee injections helped for about one month. The pain gradually returned. It was noted that the left knee had functional range of motion and there was some range of motion tenderness. See September 210 Clinic Visit Note (September 2010 VA Medical Treatment Records). In August 2012, at a VA clinic visit, the Veteran reported that his left knee still locked up and he experienced pain. it was noted that the left knee locked with ambulation. The Veteran showed reduced range of motion with tenderness noted. See October 2012 VA Medical Treatment Records. At the November 2012 VA Examination, the Veteran reported that his condition had worsened. The Veteran reported that his knee locked up and he experienced extreme pain. The Veteran stated that his left knee was worse after having surgery. The Veteran reported flare-ups, describing them as having his knee lock up at least 10 times a day. Range of motion was noted as follows: flexion was 125 degrees, with pain noted at 120 degrees; extension was 0 degrees. The Veteran was able to perform repetitive use testing, with the same range of motion noted as before. Contributing factors of the Veteran’s disability included weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. There was no objective evidence of tenderness or pain to palpation for joint line or soft tissues. Muscle strength testing was normal. Joint stability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did have a tibia or fibula impairment, shin splints on the right knee. The Veteran had a meniscal condition on the left knee, a meniscal tear with frequent episodes of joint locking, pain, and joint effusion. The Veteran used a brace regularly as an assistive device. Arthritis was not documented. The Veteran’s knee condition impacted his endurance, ability to walk, climb, bend, and stand. On the November 2012 VA x-ray report, ir was concluded that the Veteran had a healed fracture deformity with some cortical irregularity and thickening and mid distal tibial shaft. There was no significant angulation deformity. At the February 2015 Board Hearing, the Veteran asserted that his knee popped out of place any time he moves. The Veteran stated it has been popping since 2010. The Veteran expressed he had difficulty bending and other activities, such as putting on his shoes. The Veteran stated that he used to have braces, but that they felt uncomfortable. The Veteran endorsed experiencing instability. At the April 2015 VA examination, the Veteran reported flare-ups, describing them as his knee locking up and constant pain. The Veteran also endorsed his knee giving way and falling out of bed as a result. Functional impact was described as constant pain, instability, and trouble standing. Range of motion was noted as follows: flexion was 100 degrees; extension was 0 degrees. Pain was noted on examination for both flexion and extension, and it caused functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time. The examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use. Pain significantly limited functional ability with repetitive use. There was no change in range of motion. The examination was being conducted during a flare-up. Pain significantly limited functional ability during a flare-up. There was no change in range of motion. Contributing factors of the Veteran’s disability included less movement than normal and disturbance of locomotion. Muscle strength testing was normal. The Veteran did not have muscle atrophy or ankylosis. Joint stability tests were normal. There was no evidence or history of recurrent patellar subluxation, lateral instability, or recurrent effusion. The Veteran did not have a tibia or fibula impairment. The Veteran had a meniscal condition on the left knee, a meniscal tear. The Veteran’s knee condition caused difficulty in prolonged standing and walking. After a thorough consideration of the evidence, the Board determines that prior to March 14, 2016, the Veteran’s disability more nearly approximated marked knee disability, which is contemplated by the 30 percent rating under Diagnostic Code 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. The Veteran has constantly and consistently reported experiencing severe knee pain. Additionally, he has consistently endorsed locking of the knee and feeling as if his knee is “giving way.” It has been documented that the Veteran wore a knee brace. The severe pain of his knee condition prevented him from continuing with physical therapy and had to receive injections in his knee to treat his pain. Therefore, the Board finds that those symptoms more nearly depict marked disability of the knee. A 40 percent rating is not warranted prior to March 14, 2016. Although the Veteran has used a brace, which is contemplated in the 40 percent rating, it has not been shown that the Veteran has had nonunion of the tibia or fibula. Regarding any entitlement to separate ratings, the U.S. Court of Appeals for Veterans Claims has held that the regulatory definition of "disability" is the "impairment of earning capacity resulting from such diseases or injuries and their residual conditions." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Diagnostic Code 5262 evaluates according to the severity level of the “disability.” The requirement of a knee "disability" under Diagnostic Code 5262 is broad enough to encompass all symptoms attributing to the impairment of earning capacity, including pain, limitation of motion, stiffness, and instability. Diagnostic Code 5262, in a way, acts as a catch all for a disability not depicted by the other diagnostic codes evaluated the knee. Separate ratings during this period would constitute impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Additionally, prior to March 14, 2016, the Veteran’s flexion and extension would not have warranted any compensable ratings. In summation, the Board determines that prior to March 14, 2016, the Veteran’s entitled to a 30 percent rating under Diagnostic Code 5262. 2. Whether the reduction in rating from 30 percent to 10 percent for limitation of motion (extension) manifested by left knee disability, effective April 29, 2017, was proper. As stated before, in November 2017, the AOJ decreased the Veteran’s 30 percent rating from 30 percent to 10 percent, effective April 29, 2017, during the pendency of the Board’s January 2017 remand. Since this rating was on appeal and before the Board, preliminarily, the Board must determine whether the rating reduction was proper before addressing entitlement to an increased rating. A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the AOJ did not follow the specific procedural requirements regarding rating reductions. There was no rating decision proposing the rating reduction issued to the Veteran. The Veteran was afforded a VA examination in April 2017. In November 2017, the AOJ issued the rating decision, reducing the Veteran’s rating. The AOJ did not propose a rating reduction after the April 2017 VA examination, outlining to the Veteran all material facts and reasons. Resultingly, the Veteran was not provided with 60 days to present evidence showing that his 30 percent rating should be continued, or the right to a predetermination hearing. As the procedural requirements were not followed, the reduction is void ab initio, and 30 percent rating under Diagnostic Code 5261 must be restored, from March 14, 2016. 3. From March 14, 2016 to February 20, 2019, entitlement to a rating in excess of 30 percent for limited motion manifested by left knee disability. From March 14, 2016 to February 20, 2019, the Veteran’s left knee disability was rated under Diagnostic Code 5261, which evaluates limited extension of the knee. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension. Under Diagnostic Code 5260, limitation of flexion to 45 degrees warrant a 10 percent disability rating; limitation of flexion to 30 degrees warrants a 20 percent disability rating; and limitation of flexion to 15 degrees warrants a maximum schedular 30 percent disability rating. Under Diagnostic Code 5261 for limitation of extension, 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 the maximum rating of 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Turning now to the evidence of the record, at the March 2016 VA examination, the Veteran reported experiencing chronic global pain in his entire left knee with intermittent locking. The Veteran reported flare-ups, describing the pain as dull in the back, medial, and lateral knee. Regarding functional impairment, the Veteran’s knee condition impacted his ability to ride motorcycles, and to drive a vehicle with a clutch. The Veteran also experienced difficulty standing or walking longer than 15 minutes due to pain. Range of motion was noted as follows: flexion was 90 degrees; extension was 20 degrees. Abnormal range of motion contributed to functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing. There was additional functional loss after repetitive use testing. The range of motion read as follows: flexion was 85 degrees, and extension was 25 degrees. Pain, fatigue, weakness, and lack of endurance significantly limited ability after repetitive use. He was being examined immediately after repetitive use. The examination was being conducted during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability during a flare-up. Range of motion read as follows: flexion was 85 degrees, and extension was 25 degrees. The Veteran’s muscle strength was reduced. The Veteran did not have muscle atrophy or ankylosis. There was no evidence or history of recurrent patellar subluxation. The Veteran had history of recurrent effusion. The Veteran had lateral instability. The Veteran did have shin splints in the left knee. The Veteran had a meniscal condition regarding the left knee, with frequent episodes of joint locking and pain. It was noted that the Veteran underwent a partial meniscectomy in June 2011 and June 2014. The Veteran used a brace regularly as an assistive device. Arthritis was documented. In a June 2016 Pain Clinic Follow-Up Note, the Veteran reported the severity of left knee pain to be a seven out of ten. The pain was persistent and there is associated locking. The presence of buckling was uncertain. The Veteran received prior corticosteroid (CSI) and hyaluronic acid injections to the knee without any relief. It was noted that the Veteran’s flexion was decreased actively. The McMurray’s test was positive. See August 2016 VA Medical Treatment Records (CAPRI). At the April 2017 VA examination, the Veteran reported flare-ups, describing them as increased pain occurring when he walked for prolonged periods. Regarding functional impairment, the Veteran experienced pain with bending and extending his left knee when getting in and out of the vehicle, getting up from a seated position and sleeping. Range of motion was noted as follows: flexion was 100 degrees; extension was 0 degrees. Abnormal range of motion contributed to functional loss. Pain was noted in both planes and it caused functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. There was no objective evidence of crepitus. There was no pain on passive range of motion or on non-weight bearing. The Veteran was able to perform repetitive use testing. There was no additional functional loss after repetitive use. He was not being examined immediately after repetitive use. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repetitive use. The examination was not being conducted during a flare-up. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up. Pain, fatigue, and weakness significantly limited functional ability during a flare-up. A contributing factor of the disability was less movement than normal. The Veteran’s muscle strength was reduced. The Veteran did not have muscle atrophy or ankylosis. There was no evidence or history of recurrent patellar subluxation, lateral instability, or recurrent effusion. The Veteran did not have any tibia or fibular impairments. No meniscal condition was noted. The Veteran used a brace and left leg sleeve constantly as assistive devices. Arthritis was documented. Regarding functional impact, the Veteran experienced trouble walking, standing, and kneeling for prolonged periods. In July 2017, the Veteran expressed his frustrations regarding the severity of his left knee giving away. The clinician discussed the braces the Veteran received for his knee. See July 2017 Physical Therapy Note. In August 2017, it was noted that the Veteran had limited left knee flexion, more than 90 degrees with locking noted. See August 2017 Physical Therapy Orthopedic Consultation and Education. At the May 2018 VA examination, the Veteran reported flare-ups, describing them as extreme pain and locking of the tibia. The pain caused the Veteran to wake up at night and he experienced difficulty walking. Regarding functional impairment, the Veteran stated that his left leg will not straighten. Additionally, he has trouble standing up. Range of motion was noted as follows: flexion was 135 degrees; extension was 0 degrees. Abnormal range of motion contributed to functional loss. Pain was noted in both planes and it caused functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. There was no objective evidence of crepitus. There was objective evidence of pain on passive range of motion and on non-weight bearing. The Veteran was able to perform repetitive use testing. There was no additional function loss after repetitive use. He was being examined immediately after repetitive use. Pain, weakness, and lack of endurance significantly limited functional ability with repetitive use. Estimated range of motion read as follows: flexion was 130 degrees; extension was 0 degrees. The examination was not being conducted during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability during a flare-up. The examiner stated that the range of motion varied depending on the flare-up, if it is mild, moderate, or severe. Contributing factors of the disability included instability of station, disturbance of locomotion, and interference with standing. Muscle strength testing was normal. The Veteran did not have muscle atrophy or ankylosis. There was no evidence or history of recurrent patellar subluxation or recurrent effusion. There was history of slight lateral instability. The Veteran had posterior and lateral instability. The Veteran did not have any tibia or fibular impairments. The Veteran had a meniscal tear. The Veteran used a cane constantly as an assistive device. Regarding functional impact, the Veteran experienced diminished ability to walk, stand too long, jog, climb stairs, and run. In a January 2019 VA examination, the range of motion of the Veteran’s left knee was noted as follows: flexion 135 degrees, extension 0 degrees. Pain was noted and it caused functional loss, moderate pain, and tenderness increased with movement of left knee. There was no evidence of nonunion or malunion of the left tibia and fibula. The examiner indicated that it was not feasible to determine additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion without resorting to speculation. Contributing factors to the Veteran’s disability included instability of station, disturbance of locomotion and interference with standing too long due to pain with slight lateral instability. After a thorough consideration of the evidence, the Board finds that a rating in excess of 30 percent for limited extension is not warranted for the period of March 14, 2016 to February 20, 2019. The Veteran’s extension has not been approximated to be limited to 30 degrees, which is contemplated by the 40 percent criteria. The Board acknowledges the Veteran's statements regarding the pain he experienced in his left knee. The Board finds that the 30 percent rating adequately contemplates and compensates the Veteran for his limited and painful extension. The Board does find that a separate compensable 10 percent rating for limited flexion under Diagnostic Code 5260 is warranted from March 14, 2016 to February 20, 2019. The examinations have showed limited flexion. Although it has not been shown to be limited to 45 degrees, the evidence has shown that the Veteran's experienced pain on flexion. The examiners and clinicians also remarked that the Veteran's left knee condition limited him from performing certain movements that involve flexion as it does extension, which he is compensated for. Thus, the Board will resolve any doubt and determine that the Veteran is entitled to a separate 10 percent rating for painful, limited motion on flexion of his left knee. 38 C.F.R. §§ 4.59, 4.40, 4.45. A rating of 20 percent for limitation of flexion is not warranted due to the Veteran's flexion has not exhibited limitation of 30 degrees during this period. The Board determines that from March 14, 2016, the Veteran is entitled to a 20 percent rating for instability under Diagnostic Code 5257, which evaluates recurrent subluxation and lateral instability. At the March 2016 VA examination, it was noted that the Veteran experienced lateral instability. In subsequent examinations, it has been shown that the Veteran has a history of slight lateral instability. The Veteran has worn knee braces and used a cane for stability. Although the examinations have noted the severity of the instability to be slight, the Veteran has continuously asserted experiencing instability in his left knee and falls as a result of the instability, Therefore, resolving reasonable doubt, the Board finds that the Veteran is entitled to a separate rating of 20 percent for instability from March 14, 2016 to February 20, 2019. The Veteran is not entitled to a 30 percent rating under Diagnostic Code 5257, which contemplates severe impairment. The Veteran's balance was not severe enough that no effective function remained other than what would be equally well served by an amputation with prosthesis. The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5258 due to the evidence establishing that the Veteran had a meniscal tear in his left knee. There has been evidence that the Veteran had effusion in his left knee. Locking, popping, and catching has been variously reported by the Veteran. Resolving doubt, the Board determines that the Veteran is entitled to a separate 20 percent rating for meniscal condition manifested by frequent effusion and locking of the joint. The Board has also considered whether assigning a separate rating under Diagnostic Code 5258 constitutes impermissible pyramiding with the Veteran's ratings under Diagnostic Codes 5260 and 5261 for limitation of motion. While VA's General Counsel has held that Diagnostic Code 5259 (pertaining to removal of the semilunar cartilage) may contemplate limitation of motion, it has not addressed whether Diagnostic Code 5258 for dislocation of the cartilage similarly encompasses limited motion of the knee. See VAOGCPREC 9-98 (Aug. 14, 1998). The Court held that evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee under diagnostic codes 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code. Id. The Board finds that in this case, the Veteran's limited motion is not contemplated by his now assigned rating under Diagnostic Code 5258. In this regard, the Veteran's left knee disability has been manifested by objective evidence of meniscal tear and effusion, as well as limited range of motion. The Veteran's symptoms of effusion, popping, and locking are a different manifestation than the limited motion. The Board finds that the additional symptoms of locking, popping, and effusion are sufficient such that separate evaluations under Diagnostic Code 5258 and Diagnostic Codes 5260 and 5261 avoid impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board acknowledges that in January 2019, the VA examiner indicated that it was not feasible to determine additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion without resorting to speculation. The examiner also did not provide estimation of additional limitation in terms of range of motion after repetitive use or during a flare-up. Based on the evidence, the Board determines that a remand is not necessary as the evidence reflects that the Veteran's left knee symptoms during flare-ups, after repetitive use, and due to other factors are not so severe and consistent that it result in symptoms more nearly approximating the criteria for 20 percent for limitation of flexion (limitation of flexion to 30 degrees), and approximating the criteria for 40 percent for limitation of extension (limitation of extension to 30 degrees). 38 C.F.R. §§ 4.40, 4.45, 4.59; English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). There are examinations on the record showing the Veteran’s range of motion during flare-ups, after repetitive use, and due to factors, such as pain, weakened movement, excess fatigability, and incoordination. The Board has considered whether the Veteran is entitled to higher or separate ratings under other diagnostic codes that evaluate the knee. The Veteran does not have ankylosis or genu recurvatum, which are contemplated by Diagnostic Codes 5256 and 5263. From March 14, 2016, it has been shown that the Veteran does not have any tibia or fibula impairments that is manifested by malunion or nonunion, which is contemplated by Diagnostic Code 5262. In summation, for the period of March 14, 2016 to February 20, 2019, the Veteran is entitled to separate ratings for painful flexion, instability, and meniscal condition manifested by effusion and locking. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s remaining claims on appeal. 1. From April 1, 2020, entitlement to a rating in excess of 30 percent for left knee disability is remanded. In February 2019, the Veteran underwent a surgical procedure of his left knee. The AOJ granted a temporary 100 percent evaluation under Diagnostic Code 5055 from February 20, 2019, the date of the surgery. The AOJ then assigned a 30 percent rating for minimal residuals from April 1, 2020, as directed by the rating criteria. See March 2020 Rating Decision. The Veteran was not afforded an examination following his surgery to determine the current severity of his left knee condition. There are no medical records of the record to adequately assess the current severity one year after the February 2019 surgery. In order to make a clear and informed determination regarding the current nature and severity of the Veteran’s left knee condition following his February 2019 surgery, the Board finds that a remand is necessary in order to afford the Veteran a VA examination that adequate assesses the severity of Veteran’s left knee condition. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 10, 2015 is remanded. After a review of the evidence, the Board finds that the evidence warrants a referral for consideration of a TDIU rating on an extraschedular basis prior to March 10, 2015. In order for the Veteran to be eligible for consideration of a TDIU rating under 38 C.F.R. § § 4.16, the Veteran's disability rating must meet the schedular criteria. In this matter, the Veteran did not meet the schedular criteria under 4.16(a) prior to March 2015. Nevertheless, the Board must consider whether the evidence otherwise warrants a referral to the Director of Compensation Service for entitlement to a TDIU rating on an extraschedular basis prior to March 10, 2015 under the provisions of 38 C.F.R. § 4.16 (b). Private medical records show that the Veteran previously loaded trucks as an occupation. At the March 2010 VA examination, it was noted that the Veteran used to be a truck driver. The effect of the Veteran’s left knee condition was the inability to drive a truck and difficulty walking. At the November 2012 VA examination, the Veteran’s condition impacted his ability to walk, climb, bend and stand. On the March 2015 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he completed three years of high school. The Veteran reported that he did not have any other education or training before and since becoming too disabled to work. Considering the Veteran's limitations due to his disability, in conjunction with his educational background and employment history, the evidence does show an indication that the Veteran's left knee condition rendered him unable to secure or follow substantially gainful employment prior to March 2015. The evidence indicates that the Veteran may be precluded from performing both the physical and mental acts required for employment. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation Service to consider entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service for consideration of entitlement to extraschedular TDIU is warranted. 38 C.F.R. § § 4.16 (b). The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his left knee condition. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Once all available, relevant medical records have been received, and associated with the claims file, schedule the Veteran for a VA examination (or a telehealth interview if an in-person examination is not feasible) to determine the current nature and severity of the Veteran’s left knee condition. The examiner must conduct all indicated tests and studies, to include range of motion studies, as indicated below. a) The knees must be tested in both active and passive motion, and in weight-bearing and non-weight-bearing. The examiner should identify at what point during the range of motion that pain sets in. b) The examiner must describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. c) The examiner must also state whether the examination is taking place during a period of flare-up (e.g., on a "bad day"). If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). d) The examiner is requested to identify the presence, or absence of ankylosis of the left knee . If the presence of ankylosis is identified, this determination should be expressed in terms of whether the ankylosis is favorable or unfavorable. e) The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is characterized as slight, moderate, moderately severe, or severe. If any nerve involvement is wholly sensory, the examiner should so indicate. In answering all questions, please articulate the reasons underpinning every conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion 3. Forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU due his service-connected disabilities on an extra-schedular basis prior to March 10, 2015, pursuant to the provisions of 38 C.F.R. § § 4.16 (b). In connection with the referral, the Regional Office / Appeals Management Center should include a full statement outlining the Veteran's service connected disabilities, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 4. After the development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated as necessary. Then, readjudicate the issues. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.