Citation Nr: 21066610 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-35 404 DATE: November 1, 2021 ORDER Entitlement to an increased rating greater than 10 percent for residuals of left knee meniscectomy with degenerative arthritis and residual arthritis with limited flexion is denied. Entitlement to an earlier and/or greater separate rating of the left knee for extension, currently rated at non-compensable (0%) from July 29, 2021, is denied. Entitlement to a separate 10 percent rating, but no higher, for meniscus impairment of the left knee is granted from June 26, 2014, but no earlier, subject to the laws and regulations governing monetary awards. Entitlement to a separate 10 percent rating for left knee instability under Diagnostic Code (DC) 5257 is granted from June 26, 2014, subject to the laws and regulations governing monetary awards. REMANDED Service connection for a right knee condition is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's left knee disability is manifested by degenerative arthritis with painful limitation but did not manifest in flexion limited worse than 60 degrees or extension limited worse than 5 degrees and there was no factually ascertainable increase in severity in the year prior to receipt of the Veteran's increased rating claim; the evidence consistently showed recurrent meniscal tears during the entire appellate timeframe with frequent episodes of locking and pain, but no evidence of effusion of the joint. 2. From June 26, 2014, the Veteran's left knee disability manifested in subjective complaints of instability on certain surfaces amounting to slight but not moderate instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee (previously meniscectomy with degenerative arthritis, previously evaluated under 5003-5259) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, DC 5003-5260. 2. The criteria for entitlement to a compensable disability rating for limitation of extension of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5261. 3. The criteria for entitlement to a 10 percent disability rating, but no higher, from June 26, 2014, but no earlier, for other impairment of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5259. 4. The criteria for entitlement to a separate 10 percent rating, but no higher, for left knee instability have been met from June 26, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to December 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Newnan, Georgia. The Board previously remanded these claims for additional development in an October 2019 decision. Unfortunately, as will be discussed in more detail below, remand is again necessary regarding the Veteran's service connection claim for the right knee. Regarding the pending increased rating claim for the left knee, the Board finds substantial compliance with the October 2019 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes while in remand status and throughout the pendency of the Veteran's appeal regarding the left knee, the RO determined that multiple separate ratings for the Veteran's left knee were warranted. Accordingly, these issues are reflected above and will be addressed herein. The Board notes consideration has been given to whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). There is no indication in the record that the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected disabilities. Therefore, as the issue of a TDIU is not reasonably raised by the record, it is not part of the rating appeal and will not be further addressed herein. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings The left knee claim stems from a June 26, 2014 increased rating claim. At that time, the Veteran was rated 10 percent for his left knee for limited flexion with degenerative arthritis under DC 5003-5260 as a residual of his meniscectomy. During the pendency of this appeal, he was also awarded a separate rating for his meniscus impairment under DC 5259, rated 0 percent from December 5, 2019, and 10 percent from July 29, 2021; and awarded a separate rating under DC 5003-5261, for limited extension with degenerative arthritis of the left knee, rated 0 percent, from July 29, 2021. As will be discussed in more detail below, the Board finds increased ratings under DC 5260 and DC 5261 are not warranted; a 10 percent disability rating, but no higher, under DC 5259 is warranted from June 26, 2014, but no earlier; and a separate 10 percent disability rating, but no higher, for instability under DC 5257 is warranted from June 26, 2014. In so finding, the Board concludes the Veteran's disability is fully capable of evaluation under the rating schedule during the period on appeal. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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 Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Here, the Veteran's left knee disability is separately rated under DC 5003-5259; DC 5260; DC 5003-5259; and DC 5003-5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Under DC 5003, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under pre-amended DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under pre-amended DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). The Board notes that the terms "slight," "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Board notes the Veteran was granted service connection for the left knee in an October 1996 rating decision. While the Veteran appealed to the Board, a final rating decision was issued in March 2001 from which the Veteran did not appeal or submit additional evidence. Thereafter, the Veteran filed an increased rating claim resulting in an October 2010 rating decision. The Veteran did not appeal or submit additional evidence within a year of the October 2010 rating decision. VA received the Veteran's increase rating claim for the left knee on June 26, 2014. Thus, the Board will consider the severity of his left knee from the date of receipt of the claim, or up to one year prior to VA's receipt thereof, to the extent an increase in severity is factually ascertainable. See 38 C.F.R. § 3.400(o)(2). Turning to the relevant evidence of record, imaging in 2014 revealed left knee moderate degenerative narrowing of the medial joint compartment with marginal osteophytes consistent with osteoarthritis. See October 2014 VA treatment records. The Veteran was afforded a VA examination in October 2014 during which the examiner noted a left knee diagnosis of meniscal tear status post left medial meniscectomy. See October 2014 VA examination. The Veteran reported that his left knee "still will give out." He endorsed that his knee "locks" about 10 or 20 times a day. He stated he experiences mild, constant pain. The Veteran stated that if he is on carpet and turns while wearing sneakers, he will "pop his knee out" causing sharp pain lasting for about two days. The Veteran stated that the pain does not affect his ability to function. He declined current use of a brace or assistive device. Flare-ups were endorsed, but it did not cause significant limitation of ROM. Initial range of motion (ROM) testing revealed 115 degrees flexion with evidence of painful motion at 115 degrees. Extension ended at 0 degrees without objective evidence of painful motion. Repetitive use testing was completed with flexion to 120 degrees and extension to 0 degrees. The Veteran did not have additional limitation in ROM or functional loss. Tenderness or pain to palpitation for the joint was found. Muscle strength testing revealed normal results. There was no evidence or history of recurrent patellar subluxation / dislocation. The examiner opined that the Veteran's left knee disability did not impact his ability to work. In June 2015, a private provider completed a knee and lower leg disability benefits questionnaire (DBQ) noting left knee joint osteoarthritis, left knee recurrent subluxation, and left knee instability. See June 2015 DBQ. Flare-ups were endorsed. Initial ROM testing revealed 80 degrees flexion and 45 degrees extension with locking, popping, and instability. The provider noted abnormal ROM contributes to functional loss. Repetitive use testing was unable to be completed due to fatigue, pain, and worsening on flat surfaces. Pain was noted on examination with active, passive, and / or repetitive use. Pain was noted with weight-bearing or non-weight-bearing. Localized tenderness or pain to palpitation of joints of soft tissue was indicated. Contributing factors of disability regarding the left knee included less movement than normal, excess fatigability, incoordination, pain on movement, swelling, instability of station, and interference with sitting. Pain, weakness, fatigability, or incoordination was found to significantly limit functional ability during flare-ups or when the joint is used repeatedly over time with a ROM estimate of 80 degrees flexion. The examiner noted functional loss during flare-ups based on worsening fatigue and pain when walking excessively on flat surfaces. Muscle strength testing was less than normal for flexion without atrophy. Ankylosis was not indicated. Crepitus was found. The joint stability testing section was not completed. A meniscal condition was reported and described as previous surgery with persistent recurrent symptoms of frequent episodes of joint "locking" and frequent episodes of joint pain. The examiner opined that the Veteran's left knee disability impacts his ability to perform occupational tasks because the Veteran cannot get into or out of a truck "well" due to ostearthritis and left knee instability. Also, the Veteran's knee is affected "severely" in the cold due to joint stiffness and pain. In August 2015, an MRI was completed for the left knee revealing chronic complete tear anterior cruciate ligament, deformity body posterior born medial meniscus which could be a chronic tear or chronic post-operative change, and severe chondromalacia medial tibial plateau, medial femoral condyle, and diffuse chondromalacia sulcus cartilage and patella. See August 2015 non-government treatment records. The Veteran stated that he experiences limited ROM due to pain and damage in the joint. See June 2016 Notice of Disagreement. He conveyed experiencing instability. Another VA examination occurred in February 2016 which listed left knee anterior cruciate ligament tear, left knee joint osteoarthritis, left knee osteomalacia, and left knee meniscal tear status post medial meniscectomy. See February 2016 VA examination. The Veteran reported experiencing "a lot of pain" during cold weather, decreased strength getting into and out of a truck, and taking it "ginger" so that it does not "pop on the ice." If he stands to put on a sock, his knee will pop so he has to sit down. The Veteran conveyed his left knee affects his daily activities in that it is "hard to drive" manual, but he endorsed the ability to deliver loads to multiple places requiring entering and exiting the truck "30 times a night." Flare-ups were endorsed occurring twice a month lasting 1-2 hours making it "hard to get in and out of the truck" and drive manual. The Veteran reported working 12 hours in the truck. He stated that he does not climb ladders to clean cutters anymore because of his knees. He also described being less active, noting that he used to play basketball and wrap the knee after playing but has not been able to play an actual game for the past eight years. Functional loss with repeated use over time was described as not using a ladder and difficulty entering and exiting a trailer. Initial ROM testing revealed 0 to 125 degrees flexion and 125 to 0 degrees extension. Pain was noted on examination with flexion but does not result in or cause functional loss. There was no evidence of pain with weight bearing. Objective evidence of localized tenderness or pain on palpitation was found. The examiner explained that although there was no objective evidence of pain, the Veteran stated that it hurt to palpitate the medial side of the knee. When palpitating the medial side with the Veteran distracted or not realizing formal palpitation was occurring, there was no sign of objective evidence of pain. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups based on the reasoning that the examination did not occur during a flare-up. Muscle strength testing was normal without atrophy or ankylosis. A history of recurrent subluxation, lateral instability, or recurrent effusion was not indicated. Joint stability testing was completed with normal results. The examiner opined that the Veteran's knee disability impacts his ability to perform occupational tasks based on avoidance of prolonged walking, standing, climbing, and jumping. During a December 2019 VA examination, the examiner noted the following diagnoses pertaining to the left knee: meniscal tear, anterior cruciate ligament tear, osteoarthritis, degenerative arthritis, osteomalacia, and meniscal tear status post medial meniscectomy. See December 2019 VA examination. While this examination was in relation to the right knee, ROM testing was completed for the left knee revealing 0 to 135 degrees flexion and 135 to 0 degrees extension causing functional limitations in bending and kneeling. Pain with flexion was noted on examination and causes functional loss. There was no evidence of pain with weight bearing. Objective evidence of localized tenderness or pain on palpitation was not indicated. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength testing was normal without atrophy or ankylosis. A history of recurrent subluxation, lateral instability, or recurrent effusion was not indicated. Joint stability testing was completed with normal results. Use of an assistive device was not reported. Functional impact on the ability to perform occupational tasks was described as limitations with bending and kneeling. There was no evidence of pain on passive ROM testing or in non-weight-bearing. Another VA examination occurred in July 2021 during which the following left knee diagnosis were noted: meniscal tear, anterior cruciate ligament tear, instability, and degenerative arthritis. See July 2021 VA examination. The Veteran reported left knee stiffening in flexion and pain with pressure. Flare-ups were not indicated. Functional loss or impairment was noted as an inability to run, climb, kneel, or squat. A history of instability or recurrent subluxation was noted as popping "once in a while." Frequent effusion of the knee was not found. Initial ROM testing for active and passive motion revealed 110 degrees flexion and 5 degrees extension. Pain was noted on examination with flexion resulting in the same ROM. ROM loss contributed to functional loss causing an inability to squat. Attempts to improve ROM caused pain in flexion. There was evidence of pain with active motion and passive motion but not with weight-bearing or non-weight-bearing. There was objective evidence of crepitus. Objective evidence of localized tenderness or pain was indicated of a moderate severity. The Veteran was able to complete repetitive use testing without additional loss of function or ROM. Pain and fatigability were noted to cause functional loss with repeated use over time without additional ROM loss. The Veteran stated that he cannot run, kneel, climb, or squat. The Veteran again denied flare-ups. Muscle atrophy and ankylosis were not found. There was recurrent subluxation or persistent instability with a complete ligament tear that is not repaired. The Veteran was not given a prescription for use of an assistive device. Recurrent patellar instability was not indicated. The Veteran has a meniscus condition with frequent episodes of joint pain. The examiner opined that the Veteran has mild anterior instability, pain in the patellofemoral joint due to chondromalacia, and loss of full flexion of the left knee. The examiner opined that the Veteran's left knee disabilities impact his ability to perform occupational tasks based on the inability to run, kneel, and climb. The Board finds that the July 2021 VA examination is adequate to determine the current nature, extent, and severity of the Veteran's left knee disability. The requirements of DeLuca, Correia, and Sharp were all addressed by the examiner and the Veteran's own descriptions of his limitations were taken into account in determining functional impact and additional loss in terms of range of motion with repetitive use over time. Of note, the Veteran declined experiencing flare-ups of the left knee. DeLuca, 8 Vet. App. at 202; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 32. Therefore, the Board finds that the examination results, along with the other medical evidence of record, provide an adequate basis upon which to evaluate the left knee disability during the period on appeal. The Board notes the Veteran reported experiencing flare-ups during the October 2014 and February 2016 VA examinations, but additional ROM loss estimates during flare-ups were not provided. As part of the October 2019 Board decision, the claim was remanded for consideration of ROM loss during flare-ups, however, as noted above the Veteran declined experiencing left knee flare-ups. Thus, the Board finds the July 2021 VA examination sufficient for rating purposes. The Board also notes while the October 2014 and February 2016 VA examinations were not sufficient for rating purposes, the examination results can still carry probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). 1. Entitlement to an increased rating greater than 10 percent for residuals of left knee meniscectomy with degenerative arthritis and residual arthritis with limited flexion is denied. 2. Entitlement to an earlier and/or greater separate rating of the left knee for extension, currently rated at non-compensable (0%) from July 29, 2021, is denied. During the entire appellate time frame, the Veteran's left knee with degenerative arthritis has been rated 10 percent under DC 5003-5260 based on degenerative arthritis with limitation of flexion at a non-compensable degree. That is, where a joint has x-ray confirmed evidence of arthritis, but noncompensable limited motion, a 10 percent disability rating is warranted under DC 5003. Alternatively, where there is no evidence of arthritis, but the joint produces painful motion, a 10 percent rating can be awarded under 38 C.F.R. § 4.59 for painful motion. The Veteran was also separately awarded a 0 percent rating under DC 5003-5261 for noncompensable limitation of extension of the left knee, effective July 29, 2001. Based on the evidence of record, throughout the entire period on appeal, the Board finds the Veteran never had compensable limitation of flexion of extension under DC 5260 or DC 5261 and, therefore, increased ratings are not warranted. Again, a compensable rating under DC 5260 requires flexion of the knee limited to 45 degrees. A compensable rating under DC 5261 requires extension of the knee limited to 10 degrees. In this case, the preponderance of the evidence shows limitation of flexion has never been shown worse than 60 degrees and limitation of extension never worse than 5 degrees even taking into account flare-ups and DeLuca factors. The Board considered whether a 10 percent rating could be assigned for limited extension in light of the painful motion in the joint similar to the award under DC 5260. 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. See Esteban, 6 Vet. App. at 261-62. While, in general, it is not considered pyramiding to award a disability rating for limited flexion of the knee under DC 5260 and a separate rating for limited extension of the knee under DC 5261, it would be impermissible to grant a 10 percent rating for both painful flexion and extension under the provisions of 38 C.F.R. § 4.59 as the award would be for the same painful joint. Thus in this particular case, the Board finds a separate compensable rating for painful extension would be impermissible pyramiding and, therefore, the Board finds no basis in which to grant an increased rating under DC 5260 or DC 5261 for any part of the appellate time frame. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg during this period. See also Lyles v. Shulkin, 29 Vet. App. 107 (2017). DC 5258, DC 5259, and DC 5257 are discussed in more detail separately below. The remaining other potential diagnostic codes are inapplicable here because there is no medical evidence in support. The Veteran's left knee is not ankylosed (i.e., frozen); therefore, DC 5256 is not for application. While the records lack any diagnosis of ankylosis and all of the VA examiners found the Veteran's left knee was not ankylosed, consideration must still be given to whether he is functionally ankylosed in the left knee. Chavis v. McDonough, 34 Vet. App. 1, 20 (2021) (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran has not contended, nor does the record reflect, his left knee is immobile. While he has reported limitations in activities including walking, standing, climbing into and out of a truck, using stairs, and sitting, he still maintains mobility in the left knee. Also, the left knee disability does not affect the tibia, fibula, or genu recurvatum; therefore, pre-amended and amended DC 5262 and DC 5263 are not for application. In denying any further increased or separate ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a separate 10 percent rating, but no higher, for meniscus impairment of the left knee is granted from June 26, 2014, but no earlier, subject to the laws and regulations governing monetary awards. The Board finds a separate 10 percent disability rating, but no higher, under DC 5259 is warranted from June 26, 2014, for the meniscus impairment of the left knee. The Board notes the Veteran was rated as 10 percent disabled under DC 5003-5259 from January 1, 1996, to June 26, 2014, and then noncompensably from December 5, 2019, and at 10 percent disabling from July 29, 2021. Upon review, the Board finds a 10 percent disability rating is warranted from the date of receipt of the Veteran's increased rating claim. Indeed, the Veteran had a meniscectomy in 1984. As part of the October 2014 VA examination, the Veteran reported experiencing that his knee "locks" throughout the day. This was again endorsed during the June 2015 private provider's assessment during which the provider noted the Veteran had a meniscal condition of previous surgery with "persistent recurrent symptoms" of frequent episodes of joint locking and joint pain. Then during the 2021 VA examination, the examiner noted the Veteran has a meniscus condition with frequent episodes of joint pain. Based on a review of the period on appeal, the Board finds a separate 10 percent disability rating for symptomatic removal of semilunar cartilage is warranted from June 26, 2014. This is the highest schedular rating under DC 5259. Under DC 5258, however, a 20 percent rating is warranted for meniscus conditions resulting is frequent episodes of locking, pain, and effusion into the joint. The Board considered the applicability of DC 5258 and the assignment of a higher 20 percent rating in light of the well documented complaints of locking of the left knee but finds DC 5258 inapplicable here. The Veteran underwent multiple diagnostic tests in multiple VA examinations throughout the appellate time as outlined above and the medical evidence consistently noted no evidence of joint effusion. DC 5258 requires a showing of locking, pain and effusion into the joint and, therefore, the 20 percent rating cannot be applied here. Rather, the Board finds DC 5259 is more applicable here because there is no question the Veteran's meniscal tear has been symptomatic throughout the appellate time frame. The Board acknowledges effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5258 and 5259 were unchanged. Accordingly, the Board finds a separate 10 percent disability rating, but no higher, under DC 5259 is warranted from June 26, 2014, for symptomatic removal of semilunar cartilage. 4. Entitlement to a separate 10 percent rating for left knee instability under DC 5257 is granted from June 26, 2014, subject to the laws and regulations governing monetary awards. The Board has considered a separate rating under pre-amended and amended DC 5257, for recurrent subluxation or lateral instability. 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. See Esteban, 6 Vet. App. at 261-62; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Based upon review, the Board will resolve reasonable doubt and award a separate rating under pre-amended DC 5257 from June 26, 2014. That is, it has been unclear whether the Veteran's complaints of instability are truly a separate manifestation or stemming from his meniscal tear, which is already compensated by DC 5259 as outlined above. The Veteran has consistently stated that his knee "gives out" and "pops" out especially if on carpet or if standing while putting on a sock. However, stability testing was completed during the 2014 and 2016 VA examinations and such testing was normal. The June 2015 private provider indicated the Veteran has locking, popping, and instability. The July 2021 VA examiner indicated the Veteran has a history of recurrent subluxation or persistent instability with the Veteran describing "popping." All examiners, moreover, show a chronic meniscal tear. The medical evidence also shows, however, an ACL tear, or a ligament tear. Under the pre-February 7, 2021, criteria for DC 5257, the Court determined in English v. Wilkie, that the Board may not categorically find objective evidence more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In light of English and in light of the conflicting medical evidence, the Board finds that the evidence is at least in equipoise. At a minimum there is objective evidence of an ACL tear during the appellate time frame and subjective evidence of feelings of instability on uneven surfaces. Although it is unclear what manifestations are attributed to his meniscus tear versus his ligament tear, the Veteran's lay statements of some instability have been corroborated to some extent throughout time. Resolving all reasonable doubt in favor of the Veteran and in light of his consistent complaints throughout the appellate time frame, the Board will award a separate 10 percent for his feelings of instability on different surfaces, but no higher. The Veteran's subjective complaints amount to at least a "slight" instability notwithstanding normal objective findings. The Board finds no basis, however, to conclude a "moderate" or more severe instability rating is warranted given that objective testing has consistently been normal, and in order to avoid pyramiding with the manifestations stemming from his meniscal tear. Regarding amended DC 5257, as outlined above, the record lacks any indication that the Veteran used a brace or had use of a brace prescribed. Thus, a higher rating under amended DC 5257 is not warranted. Based on the above, a separate 10 percent disability rating, but no higher, for instability is warranted under pre-amended DC 5257 from June 26, 2014. REASONS FOR REMAND 1. Service connection for a right knee condition is remanded. The Veteran has contended his right knee condition is secondary to service-connected left knee disability and / or fractured right ankle. The Board finds remand is necessary to ensure substantial compliance with the October 2019 remand directives. Additionally, upon further review, another theory of entitlement remains undeveloped based on the evidence of record. The Veteran was afforded a VA examination in July 2021 during which the examiner opined that the Veteran's right knee condition was not aggravated by service-connected left knee disabilities. The examiner reasoned that the Veteran did not complain of injuries or symptoms during service and the "facts" do not support that overuse caused any symptoms or injuries to the right knee. The examiner, however, recognized antalgic gait was indicated multiple times including in 2014 and 2015. The examiner failed to address whether the Veteran's complaints of altered gait supported by the medical evidence of record aggravated his right knee conditions. Rather, the examiner's reasoning related to causation. Further, the examiner did not address or consider whether the Veteran's contended overuse and right knee compensation in the years following service aggravated his right knee conditions. Instead, the examiner focused on whether the Veteran had complaints during service. Thus, remand is necessary to obtain an addendum VA opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Additionally, upon further review, the Veteran's service treatment records (STRs) noted the Veteran complained of right knee pain during service. In October 1991, the Veteran sought emergency medical care after falling while playing soccer causing him to land on the right knee. The Veteran complained of experiencing pain with weight-bearing. Minimal swelling was indicated. Then in June of possibly 1995, the Veteran was noted to be experiencing increased pain to the "knees" secondary to activity. While the Veteran has not contended his right knee condition had its onset in-service, the Board finds a direct service connection theory of entitlement is reasonably raised by the record and the medical evidence of record is insufficient to determine whether the Veteran's current right knee condition is related to these in-service complaints. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). As such, remand is necessary to obtain an addendum VA opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the July 2021 VA examiner, if available, or to another appropriate examiner for review. The necessity of an in-person examination is left to the examiner's discretion. The examiner shall render an addendum opinion, including rationale, addressing the following: - Whether it is at least as likely as not the Veteran's right knee condition was caused by or incurred during service or is otherwise related to service, to include the 1991 fall and later complaint of increased knee pain. In so opining, the examiner is directed to address and consider the Veteran's service treatment records noting a right knee injury in 1991 as well as a later complaint in possibly 1995 of increased knee pain in addition to the previous diagnoses included in the VA examinations of record. - For any arthritis condition of the right knee, is it at least as likely as not that it (a) began during active service, (b) manifested within a year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service? - Whether it is at least as likely as not the Veteran's right knee condition was aggravated by his service-connected left knee disabilities. In so opining, the examiner is directed to address and consider the Veteran's lay statements of changes in gait, overcompensation in the right knee, and medical record referencing gait changes and overcompensation including the 2014 and 2015 private providers opinions suggesting the Veteran compensated for his service-connected left knee disability by putting more weight on his right knee. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.