Citation Nr: 21000011 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-19 570 DATE: January 4, 2021 ORDER A 20 percent rating, but no higher, for a low back disability is granted. A rating in excess of 10 percent for limitation of right knee flexion (DC 5260) is denied. A rating in excess of 10 percent for right knee instability (DC 5257) is denied. A separate 10 percent rating, but no higher, for limitation of right knee extension (DC 5261) is granted. A total disability rating based on individual unemployability is granted. FINDINGS OF FACT 1. At the worst, the Veteran’s thoracolumbar spine ROM was limited to 35 degrees of forward flexion and a combined ROM of 105 degrees during flare-ups and/or after repetitive use from the beginning of the appeal period onwards. 2. ROM testing of the right knee during the appeal period has documented, at the worst, flexion to 110 degrees and extension to 10 degrees. 3. The medical evidence documents “slight” right knee instability at the worst. 4. The evidence is in relative equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a lower back disability, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5237, 5242. 2. The criteria for a rating in excess of 10 percent for limitation of right knee flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a separate 10 percent rating, but no higher, for limitation of right knee extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5261. 5. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to May 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2016, the Board remanded the current issues for further evidentiary development. The issue of entitlement to a TDIU due to service-connected disabilities has also been raised by the Veteran during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”). These matters were again remanded in August 2019 for further development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Increased Ratings Legal Criteria – General Criteria for Disabilities of the Musculoskeletal System Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. 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 compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Lower back Rating Criteria - Disabilities of the Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Note (3). Further, the term “combined range of motion” refers to “the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation”; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Notes (2) and (4). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments is to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. “Incapacitating episodes” was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. Factual Background The Veteran has reported chronic pain in the lumbar area of his back. November 2008 x-rays documented mild to moderate spondylosis of the L3 vertebrae to the inferior endplate of the L5. On September 2009 VA back examination the Veteran reported constant lower back pain aggravated by heavy lifting of more than 40 pounds or sleeping in awkward positions. He has pain with prolonged sitting or standing that radiates to the ankles. Flare-ups were noted to be severe and occur weekly for hours and are precipitated by heavy lifting, prolonged sitting or standing. No ankylosis was noted. Range of motion (ROM) testing showed forward flexion of the thoracolumbar spine to 70 degrees and a combined ROM of 215 degrees. On February 2012 VA back examination the Veteran reported constant daily pain and the constant use of a back brace. His symptoms are precipitated by activity and he occasionally experienced pain radiating down to the left leg which he described as sharp and causing intermittent weakness. Flare-ups in the thoracolumbar spine were noted and cause difficulty with any lifting. ROM testing showed forward flexion of the thoracolumbar spine to 80 degrees and a combined ROM of 225 degrees. Functional loss, impairment and/or additional limitation of ROM after repetitive use was noted to be caused by less movement than normal, pain on movement and interference with sitting, standing and/or weight-bearing. Guarding and muscle spasm in the thoracolumbar spine was noted to be present, but it does not result in abnormal gait or spinal contour. No ankylosis or IVDS was noted. A February 2017 VA back examination the Veteran reported an increase in intermittent pain and stiffness with prolonged standing and sitting. He further reported radiating back pain to the bilateral lower extremities with numbness and tingling. Flare-ups were noted to be daily with prolonged standing and sitting and lasting all day. ROM showed forward flexion of the thoracolumbar spine to 40 degrees and a combined ROM of 135 degrees. The examiner did not estimate ROM loss during a flare-up or after repetitive use stating that it would be speculative to do so. Pain was noted to result in functional loss and pain was noted on weight bearing. Guarding or muscle spasm of the thoracolumbar spine but not resulting in abnormal gait or spinal contour was noted. No ankylosis was noted but IVDS was indicated but it has not resulted in any signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. A May 2017 VAMC treatment record documents treatment for chronic lower back pain and ROM testing showed thoracolumbar spine forward flexion to 45 degrees and extension to 10 degrees. On February 2020 VA back examination the Veteran described current symptoms of stiffness, “feeling like something is on his back,” tingling, numbness down to the left ankle. Flare-ups were described when sitting on soft cushions. He experiences functional impairment insofar as he cannot walk long distances. ROM testing of the thoracolumbar spine showed forward flexion to 80 degrees and a combined ROM of 220 degrees. There was pain on weight bearing and no additional function loss in terms of ROM after repetitive-use testing. Pain and weakness were noted to cause additional functional loss during flare-ups and after repeated use over time. The examiner expressed this functional loss in terms of ROM as further limiting forward flexion to 75 degrees and a combined ROM of 195 degrees. No guarding or muscles spasms were noted, the Veteran was not noted to have IVDS or ankylosis and constant use of a back brace was indicated. Pursuant to the Board’s August 2019 remand directives, the February 2020 VA examiner was asked to provide a retrospective opinion regarding the function effects of flare-ups of the Veteran’s lower back disability from December 9, 2007 onwards. The examiner opined that, per the Veteran’s statements, it was less likely than not that the Veteran’s flare-ups limited thoracolumbar spine forward flexion to 30 degrees of forward flexion and 10 degrees of extension. Rather, the examiner estimated that during flare-ups and after repetitive use, the Veteran’s thoracolumbar spine ROM was forward flexion to 35 degrees, extension to 10 degrees and a combined ROM of 105 degrees from December 9, 2007 onwards. Analysis In accordance with the February 2020 VA examiner’s estimations, and affording reasonable doubt to the Veteran, the Veteran’s thoracolumbar spine ROM was limited to 35 degrees of forward flexion and a combined ROM of 105 degrees during flare-ups and/or after repetitive use from the beginning of the appeal period onwards. Thus, the available ROM studies report that thoracolumbar spine forward flexion is within the range of that contemplated by a higher initial 20 percent rating. However, this limitation of forward flexion, even when considering additional ROM loss during flare-ups and after repetitive use, is still appreciably greater than the next higher 40 percent rating criteria under the General Rating Formula for limitation of the thoracolumbar spine to 30 degrees of forward flexion or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. Consequently, the evidence does not warrant a rating in excess of 20 percent for limitation of motion of the thoracolumbar spine at any point during the period on appeal. However, the Board must also consider functional impairment from flare-ups and repetitive use over time in determining the Veteran’s cervical spine motion loss. 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); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran is competent to describe functional impairment from his back pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) (lay evidence competent for readily observable symptoms). Here, as discussed, the basis for the higher 20 percent initial rating is the estimated additional ROM loss the Veteran experiences during flare-ups and after repetitive use over time to includes additional functional loss caused by pain and weakness. Therefore, these symptoms have been considered and are encompassed by the assignment of a higher initial 20 percent rating. The record does not reasonably raise the issue of IVDS necessitating episodes of bed rest directed by a physician of at least four weeks within the past 12 months. Therefore, further consideration of the alternative IVDS rating criteria is not required. In sum, when considering the additional estimated functional loss in terms of ROM during flare-ups and/or after repetitive use over time, a higher initial 20 percent rating is warranted for the Veteran’s lower back disability. The appeal is granted to that extent. However, the evidence does not warrant finding that the rating criteria for a higher 40 percent rating has been met at any point during the period on appeal. Right knee Rating Criteria – Knee Disabilities VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. VA’s General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. The appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. The words “slight,” “moderate,” “severe,” and “marked” 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 the evidence for “equitable and just decisions.” Id. 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. Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under DC 5256. Id. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Factual Background & Analysis The Veteran’s right knee disability is assigned an initial 10 percent disability rating under Diagnostic Code (DC) 5010-5260 for limitation of flexion. The Veteran has also been assigned a 10 percent disability rating under DC 5257 for slight instability from February 8, 2017 onwards. On September 2009 VA knee examination the Veteran reported that his service-connected right knee disability is characterized by “giving way,” instability, stiffness, locking episodes several times a week, repeated effusions and severe weekly flare-ups precipitated by brisk walking, jumping and prolonged sitting. Initial ROM testing of the right knee showed flexion to 140 degrees and extension to 0 degrees. There was no meniscus abnormality. On February 2012 VA knee examination the Veteran reported worsening right knee pain and an intermittent “popping” sensation in the right knee which is painful. The knee pain is constant and worse with activity including bending, walking and going up stairs. Flare-ups were reported to impact functionality when going up stairs and during prolonged walking. Initial ROM testing of the right knee showed flexion to 140 degrees and extension to 0 degrees. After repetitive use, pain on movement and interference with sitting, standing and weight-bearing were factors noted to contribute to right knee functional loss/impairment. Joint stability testing of the right knee showed normal stability in all planes of movement. An October 2012 radiology consultation showed right knee pain with evidence of arthritic changes. An August 2016 VAMC right knee work-up showed a remonstrative extensive complex tear of the lateral right knee meniscus. A January 2017 VAMC orthopedic consult documents grade 1 laxity of the right knee MCL joint. Overall knee alignment in valgus of about 7 degrees which was noted to correctable. ROM testing showed flexion to 120 degrees and extension to 0 degrees. On February 2017 VA knee examination the Veteran was diagnosed with a right knee meniscal tear in addition to previously diagnosed osteoarthritis and patellofemoral pain syndrome. The Veteran reported increased intermittent pain and stiffness which worsens with prolonged standing and walking. He further reported buckling, giving way, locking and swelling. He constantly wears a right knee brace. Flare-ups were reported with daily pain due to prolonged standing and walking that lasts all day. Functional loss or impairment was described as pain with motion and limitation of motion. Initial right knee ROM testing showed flexion to 90 degrees and extension to 0 degrees. The Veteran was noted to have a right knee meniscus tear. Additional contributing factors of disability were less movement than normal due to ankylosis, adhesions, disturbance of locomotion and interference with standing. Stability testing showed slight right knee lateral instability. There was no right knee effusion or recurrent subluxation noted. There was evidence of right knee pain on passive ROM and on non-weight bearing. A May 8, 2017 VAMC rehab consultation note documents ROM testing showing right knee flexion to 110 degrees and extension to 10 degrees with joint line tenderness to palpation and antalgic gait. An October 2017 VAMC orthopedic consult documents ROM testing showing right knee flexion to 120 degrees and extension to 5 degrees. A December 2017 VAMC clinic note documents chronic right knee pain and a large radial tear of the posterior horn of the lateral meniscus with a horizontal tear of the body and posterior horn of the medical meniscus. Osteoarthritis with high grade chondromalacia in the lateral compartment was also noted. On February 2020 VA knee examination the Veteran described flare-ups as limiting bending and walking. Initial ROM testing showed right knee flexion to 118 degrees and extension to 0 degrees. Pain and weakness were noted to cause additional functional loss during flare-ups and after repeated use over time. The examiner expressed this functional loss in terms of ROM as further limiting flexion to 110 degrees and extension to 0 degrees. Additional contributing factors of disability were noted to be less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle injury or peripheral nerves injury, swelling and interference with standing. No history of subluxation, lateral instability and effusion of the right knee were noted. Joint stability testing of the right knee showed normal stability in all planes of movement. Constant use of a brace and cane were noted. There was no objective evidence of pain when the right knee is used in non-weight bearing. Analysis At the outset, the Board emphasizes that separate ratings may be assigned for limited knee motion in flexion (under DC 5260) and in extension (under DC 5261), as well as for instability (under DC 5257). VA Gen. Counsel. Prec. 23-97 (July 1, 1997). A separate compensable rating may also be assigned for meniscal pathology under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board will determine whether higher or separate ratings are warranted under the DCs governing limitation of motion of the knee joint. ROM testing of the right knee during the appeal period has documented, at the worst, flexion to 110 degrees and extension to 10 degrees. Under DC 5261, a 10 percent rating is warranted for limitation of extension of the knee to 10 degrees. The Board therefore finds that a separate 10 percent rating is warranted for limitation of extension of the right knee based on the ROM testing documented in the May 8, 2017 VAMC rehab consultation note showing limitation of extension of the right knee to 10 degrees. The criteria for a still higher 20 percent rating under DC 5261 have not been however as no ROM testing has documented limitation of right knee extension to 15 degrees, even when estimating additional functional loss caused by pain and weakness during flare-ups or after repeated use. 38 C.F.R. §§ 4.40, 4.45. Additionally, a higher initial 20 percent rating is not warranted under DC 5260 as ROM testing during this period was not productive of right knee flexion limited to 30 degrees, even when even when estimating additional functional loss caused by pain and weakness during flare-ups or after repeated use. 38 C.F.R. §§ 4.40, 4.45. The Board has also determined that a rating in excess of 10 percent for right knee lateral instability from February 8, 2017 onwards is not warranted. The Board notes that the February 2017 VA knee examination report showed objective evidence of lateral right knee instability which was remarked to be “slight.” That fact notwithstanding, the Board has not discounted the Veteran’s competent and credible lay reports regarding symptoms of instability and that he requires the use of a brace and cane in order to ambulate. See English v. Wilkie, 30 Vet. App. 347. 35253 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). However, a 20 percent rating under DC 5257 which correlates to moderate instability is not warranted as there is no competent medical evidence showing this degree of instability (positive instability testing). Rather, the Veteran’s right knee exhibited “normal” stability in most planes of movement during the most recent February 2020 VA knee examination. Given that the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, these results are afforded high probative value. Accordingly, the preponderance of the evidence weighs against finding that a rating in excess of 10 percent for right knee instability is warranted. DC 5257. Finally, higher or separate ratings are not warranted under DCs 5256, 5258, 5259 and 5263 because the Veteran has not been noted to have an ankylosed right knee, had right knee semilunar cartilage removed, no meniscus abnormality until the 2020 examination which indicated no effusion, and no genu recurvatum has been documented. Entitlement to a TDIU Legal Criteria VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Factual Background & Analysis The Veteran is schedularly eligible for a TDIU. Records furnished by the Social Security Administration (SSA) indicate that the Veteran worked from December 1996 to August 2016 as a curbside letter carrier for the United States Post Office. The Veteran alleged that he has been physically unable to work since August 23, 2016. An August 2016 letter from the Veteran’s primary care physician documents that the Veteran was found to be unable to perform work-related duties including lift, pulling, pushing, standing and prolonged walking due to the combined effect of his service-connected orthopedic disabilities. A medical evaluation performed by the SSA to determine the Veteran’s eligibility for disability benefits documents exertional limitations of lifting, carrying or pulling a maximum of 20 pounds; standing and/or walking for a total of 2 hours and the ability to sit (with normal breaks) for a period of 6 hours in an 8-hour workday. The Veteran was noted to have postural limitations occasionally when climbing ramps/stairs, bending at the waist, kneeling, crouching and crawling. The Veteran was ultimately determined to not have the requisite functional capacity to perform past relevant work of being a mail carrier due to physical limitations caused by service-connected orthopedic disabilities. It was further noted that the Veteran had the exertional capacity to perform “sedentary” type work at the most. The medical evaluator concluded that the Veteran warranted a “disabled” designation for SSA benefits purposes from August 23, 2016 onwards. After considering the above, the Board finds the evidence to be in relative equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. The Veteran has reported being physically unable to work due to his various service-connected orthopedic disabilities since retiring from his occupation as mail carrier. These assertions are supported by the findings of the SSA evaluator which found the Veteran to be physically unable to perform his prior occupation. The Board therefore finds the evidence is in at least equipoise as to whether a TDIU is warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.