Citation Nr: 21067355 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-66 600 DATE: November 4, 2021 ORDER Entitlement to a separate 10 percent evaluation for right lower extremity weakness as a residual of Lyme disease is granted. Entitlement to a separate 10 percent evaluation for left lower extremity weakness as a residual of Lyme disease is granted. Entitlement to an evaluation in excess of 30 percent for a left knee disability from May 1, 2015 to present is denied. Entitlement to an evaluation in excess of 10 percent for a right knee disability from March 21, 2014 to February 3, 2016 is denied. Entitlement to a 60 percent evaluation for a right knee disability from April 1, 2017 to the present is granted. REMANDED Entitlement to an evaluation in excess of 20 percent for post splenectomy is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's Lyme disease is inactive, and his joint pain, fatigue, headaches, and peripheral neuropathy are not residuals attributable to his Lyme disease. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his mild right lower extremity weakness is attributable to his Lyme disease. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his mild left lower extremity weakness is attributable to his Lyme disease. 4. From May 1, 2015, the Veteran's service-connected left knee disability more closely approximates a prosthetic replacement of knee joint with intermediate degrees of residual weakness, pain or limitation of motion; but the evidence does not demonstrate that the Veteran's left knee disability manifests ankylosis, extension limited to 30 degrees, or nonunion of tibia and fibula with loose motion requiring brace. 5. From March 21, 2014 to February 3, 2016, the Veteran's service-connected right knee disability does not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees. 6. Resolving all reasonable doubt in favor of the Veteran, from April 1, 2017, the Veteran's service-connected right knee disability more closely approximates a prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate 10 percent evaluation for right lower extremity weakness as a residual of Lyme disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.88b, 4.124a, Diagnostic Codes 6319, 8520. 2. The criteria for entitlement to a separate 10 percent evaluation for left lower extremity weakness as a residual of Lyme disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.88b, 4.124a, Diagnostic Codes 6319, 8520. 3. The criteria for entitlement to an evaluation in excess of 30 percent for a left knee disability, from May 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262. 4. The criteria for entitlement to an evaluation in excess of 10 percent for a right knee disability from March 21, 2014 to February 3, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261. 5. The criteria for entitlement to a 60 percent evaluation for a right knee disability, from April 1, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1976 to September 1978, from April 1979 to June 1979 and from May 1981 to September 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2014 rating decision, the RO, in pertinent part, denied a higher than 20 percent evaluation for post splenectomy; denied a higher than 10 percent evaluation for degenerative joint disease of bilateral knees; denied a compensable evaluation for residuals of Lyme disease; and denied entitlement to a TDIU. The Veteran appealed for higher evaluations and entitlement to a TDIU. During the pendency of the appeal, the RO, in pertinent part, issued a November 2017 rating decision granting a 100 percent evaluation for left total knee replacement, effective February 25, 2014, and on May 1, 2015, assigning a 30 percent evaluation; granting a 100 percent evaluation for right total knee replacement, effective February 4, 2016 and on April 1, 2017, assigning a 30 percent evaluation. The Veteran continued to appeal for higher evaluations for his service-connected left knee disability and service-connected right knee disability. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). The Veteran testified before the undersigned Veterans Law Judge at a May 2019 videoconference hearing. A transcript of this hearing is of record. In October 2019 and November 2020, the Board, in pertinent part, remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the November 2020 remand instructions, so the matters of entitlement to an evaluation in excess of 20 percent for post splenectomy and entitlement to a TDIU must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 1. Entitlement to a separate 10 percent evaluation for right lower extremity weakness as a residual of Lyme disease 2. Entitlement to a separate 10 percent evaluation for left lower extremity weakness as a residual of Lyme disease The Veteran asserts that he has not been appropriately rated for his Lyme disease. Specifically, he contends that he experiences residuals of Lyme disease, including bilateral lower extremity neuropathy, chronic fatigue (reportedly unable to walk to his mailbox without tiring), chills, fever, headaches, and arthritis or joint pain. See December 2017 VA Form 9. The Veteran's residuals of Lyme disease have been currently evaluated as noncompensable, effective October 1, 1996, under 38 C.F.R. § 4.88b, Diagnostic Code 6319. Under Diagnostic Code 6319, active Lyme disease is assigned a 100 percent rating. If inactive, the Note to Diagnostic Code 6319 states to rate under the appropriate body system any residual disability of Lyme disease, which includes, but is not limited to, arthritis, Bell's palsy, radiculopathy, ocular, or cognitive dysfunction. The Veteran underwent multiple VA examinations for his Lyme disease in June 2014, October 2017, December 2019, and February 2021. At each VA examination, the VA examiners agreed that the Veteran had been diagnosed with and treated for Lyme disease in 1996, and that his Lyme disease was presently inactive. At a February 2021 VA infectious diseases examination, the VA examiner documented that the Veteran reported having joint pain and weakness in his lower legs. The February 2021 VA examiner found that the Veteran's symptoms of weakness in his lower legs were attributable to his Lyme disease. At a February 2021 VA central nervous system and neuromuscular diseases examination, the VA examiner found that the Veteran had mild right lower extremity weakness and mild left lower extremity weakness. The February 2021 VA examiner also concluded that the Veteran's bilateral knee replacements and Lyme disease both contributed to weakness in the Veteran's legs. In an August 2021 VA opinion, the VA examiner reviewed the findings of the VA examinations and discussed the Veteran's reported residuals of Lyme disease. The August 2021 VA examiner explained that Lyme disease can result in joint pain, however, because the Veteran has had degenerative joint disease requiring bilateral knee replacements, the Veteran's joint pain was not attributable to his Lyme disease. Furthermore, the August 2021 VA examiner found that the Veteran's reported chronic fatigue was not listed as a residual on his February 2021 VA examination reports, and chronic fatigue can be multifactorial. Additionally, the August 2021 VA examiner found that the February 2021 VA examination reports did not report any link between the Veteran's Lyme disease and his peripheral neuropathy and headaches. Finally, with regard to the February 2021 VA examiner's finding of Lyme disease residual weakness in the lower legs, the August 2021 VA examiner found that the Veteran's clinical presentation was more consistent with weakness from knee degenerative joint disease. Overall, the August 2021 VA examiner concluded that the Veteran had no residuals of Lyme disease. As a preliminary matter, the Board finds that the Veteran's Lyme disease does not warrant a compensable evaluation under Diagnostic Code 6319. The record clearly demonstrates that the Veteran's Lyme disease has been inactive during the relevant appeal period. Accordingly, the Board finds that there is no basis upon which to award a compensable evaluation for Lyme disease under Diagnostic Code 6319. In addressing the Veteran's residuals of Lyme disease, the Board recognizes that the record includes conflicting medical opinions concerning whether the Veteran has any residuals of Lyme disease. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that there is no basis upon which to find that one competing opinion is more probative than the other. Both the February 2021 VA examiner and August 2021 VA examiner based their opinions on a review of the Veteran's clinical findings and subjective reports and their understanding of medical principles associated with Lyme disease. Thus, the Board finds that the evidence is at least in equipoise that the Veteran's weakness in his lower legs is a residual attributable to his Lyme disease. Based on the February 2021 VA examiner's finding that the Veteran has residual bilateral lower extremity weakness attributable to his Lyme disease, the Board finds that separate evaluations are warranted. In this case, the Board finds that for the Veteran's bilateral lower extremity weakness, the most appropriate rating criteria is under Diseases of the Peripheral Nerves. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C. § 4.124 a, Diagnostic Code 8520. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. As noted above, the February 2021 VA examiner found that the Veteran had mild left lower extremity weakness and right lower extremity weakness. Based on these clinical findings, the Board finds that a separate 10 percent evaluation for left lower extremity weakness as a residual of Lyme disease and a separate 10 percent evaluation for right lower extremity weakness as a residual of Lyme disease under Diagnostic Code 8520 for mild incomplete paralysis is warranted. Given the finding by the February 2021 VA examiner that the Veteran's bilateral knee replacements and Lyme disease both contributed to weakness in his legs, the Board finds that any consideration of higher than 10 percent separate evaluations are not appropriate. Finally, the Board has considered whether the Veteran is entitled to any other separate evaluations for his residuals of Lyme disease. Despite the Veteran's subjective reports of experiencing multiple residuals attributable to his Lyme disease, the Board finds that the clinical findings of the February 2021 VA examiners coupled with the opinion of the August 2021 VA examiner provide the most probative evidence regarding the actual residuals associated with the Veteran's Lyme disease. Accordingly, the Board concludes that the evidence does not support assignment of any further separate evaluations for residuals of Lyme disease. In summary, resolving all reasonable doubt in favor of the Veteran, a separate 10 percent evaluation for left lower extremity weakness as a residual of Lyme disease is granted. Resolving all reasonable doubt in favor of the Veteran, a separate 10 percent evaluation for right lower extremity weakness as a residual of Lyme disease is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an evaluation in excess of 30 percent for a left knee disability from May 1, 2015 to present 4. Entitlement to an evaluation in excess of 10 percent for a right knee disability from March 21, 2014 to February 3, 2016 5. Entitlement to an evaluation in excess of 30 percent for a right knee disability from April 1, 2017 to the present It should also be noted that, when evaluating 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating 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. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 09-1998. During the relevant appeal period, the Veteran's service-connected left knee disability has been currently evaluated as 30 percent disabling, effective May 1, 2015, under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran's service-connected right knee disability has been currently evaluated as 10 percent disabling, effective March 21, 2014, under 38 C.F.R. § 4.71a, Diagnostic Codes 5261-5003, and as 30 percent disabling, effective April 1, 2017, under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board notes that VA has amended the rating criteria for musculoskeletal system disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by x-ray findings, is to be rated under Diagnostic Code 5003 as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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 evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Effective February 7, 2021, Diagnostic Code 5003 applies only to degenerative arthritis, other than post-traumatic. Otherwise the rating criteria remained unchanged. Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Prior to February 7, 2021, Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of knee replacement (prosthesis). A Note provides that the term "prosthetic replacement" in diagnostic codes 5051 through 5056 means a total replacement of the named joint, except for the hip (Diagnostic Code 5054). A 60 percent rating is assigned for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A prosthetic replacement of knee joint with intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to diagnostic codes 5256, 5261, or 5262. A minimum 30 percent rating is assigned following prosthetic replacement of knee joint. Note (1) provides that 100 percent rating for one year following implantation of prosthesis will commence after initial grant of the one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Note (2) provides that special monthly compensation is assignable during the 100 percent rating period the earliest dae permanent use of crutches is established. Effective February 7, 2021, Diagnostic Code 5055 provides a 100 percent rating for 4 months following implantation of knee replacement (prosthesis) or knee resurfacing. A Note provides that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. A 60 percent rating is assigned for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A prosthetic replacement of knee joint with intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to diagnostic codes 5256, 5261, or 5262. A minimum 30 percent rating is assigned following total replacement only. Note (1) provides that when an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under 38 C.F.R. § 4.71a may not also be assigned for that joint, unless otherwise directed. Note (2) directs to only evaluate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all components are replaced. Note (3) provides that the term "prosthetic replacement" in diagnostic codes 5051-5053 and 5055-5056 means a total replacement of the named joint. Note (5) provides that the 100 percent rating for 4 months following implantation of prosthesis or resurfacing under diagnostic codes 5054 and 5055 will commence after initial grant of the one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Note (6) provides that special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. With respect to disabilities of the knee, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth the relevant provisions. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (Diagnostic Code 5258), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. Diagnostic Code 5256 was not changed by the February 7, 2021 amendments. Under Diagnostic Code 5256, a minimum 30 percent rating is assigned for ankylosis of knee, favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankylosis of knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of knee in flexion between 20 degrees and 45 degrees. A maximum 60 percent rating is assigned for extremely unfavorable ankylosis of knee, in flexion at an angle of 45 degrees or more. Prior to February 7, 2021, Diagnostic Code 5257 rates other impairment of the knee on the basis of recurrent subluxation or lateral instability. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee. A maximum 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. The Board observes that the words "slight," "moderate," 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. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, Diagnostic Code 5257 continues to rate other impairment of the knee for recurrent subluxation or lateral instability and adds a rating for patellar instability. For recurrent subluxation or lateral instability, a 10 percent rating is assigned 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. For recurrent subluxation or lateral instability, a 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes 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 prescribes either an assistive device(e.g., cane(s), crutch(es), walker) or bracing for ambulation. For recurrent subluxation or lateral instability, a maximum 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is assigned 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. For patellar instability, a 20 percent rating is assigned 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. For patellar instability, a maximum 30 percent rating is assigned 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. Note (1), for patellar instability, defines the patellofemoral complex as the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides 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). Diagnostic Codes 5260 and 5261 were not changed by the February 7, 2021 amendments. Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the Office of General Counsel (OGC) held that separate evaluations under 38 C.F.R. § 4.71a, Diagnostic Code 5260, (limitation of knee flexion) and 38 C.F.R. § 4.71a, Diagnostic Code 5261, (limitation of knee extension) can be assigned without pyramiding. Despite the fact that knee flexion and extension both occur in the same plane of motion, limitation of flexion (bending the knee) and limitation of extension (straightening the knee) represent distinct disabilities. The Veteran asserts that his service-connected left knee disability and right knee disability are worse than his current evaluations reflect. In particular, the Veteran reports that his right knee disability should be rated at 60 percent for weakness, restricted range of motion, severe painful motion, and instability, including knee buckling. The Veteran asserts that his left knee symptoms also warrant a 60 percent rating based on similar symptoms. At his May 2019 Board hearing, the Veteran arrived at the hearing with a walker. He said that VA prescribed him a scooter. He testified that his right knee symptoms were worse than his left knee. He had right knee painful motion "all the time" and left knee painful motion "once in a while." He said that his right knee would give way and cause him to fall. Three months earlier, the Veteran described how he fell while entering the bathroom. He wore a brace on the right knee "all the time" and wore a brace on the left knee "once in a while." In order for him to go down the aisles in the grocery store, the Veteran explained that he would have to be seated and wheeled around. He said that he was unable to walk a quarter of a block and did not go up and down stairs. Overall, the Veteran said that his pain, instability, and weakness was greater in his right knee than his left knee. At a June 2014 VA examination, the Veteran reported having right knee pain, which was aggravated by walking. The Veteran did not report having any flare-ups. The Veteran regularly used a brace, cane, and walker for assistance. Range of motion testing revealed right knee flexion to 135 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 110 degrees with pain, and left knee extension to zero degrees without pain. There was no additional limitation in range of motion after repetitive use testing. The Veteran had functional loss exhibited by pain on movement of the left knee. Joint stability testing results were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran had a left total knee replacement in February 2014. The June 2014 VA examiner found that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion. The June 2014 VA examiner opined that neither pain, weakness, fatigability, or incoordination significantly limited Veteran's functional ability during flare-ups or when the joint was used repeatedly over a long period of time. VA treatment records from 2015 to 2017 document the Veteran's complaints of bilateral knee symptoms. In an August 2015 VA treatment record, the VA treating physician noted that the Veteran had undergone an injection for his bilateral knee osteoarthritic pain at a past visit, but he still had significant pain at the knees with a "burning" component. At a September 2015 VA clinic visit, the Veteran reported that he could only walk with a rolling walker for 50 feet and needed some help from his wife with getting dressed. His wife also helped with cooking and shopping. At an October 2015 VA clinic visit, the Veteran reported having swelling with occasional catching. He expressed having improved left knee pain since a total knee replacement, but with some instability with stairs and pain with "cold damp" weather. The VA treating physician found that the Veteran had left total knee arthroplasty mid flexion instability. A January 2016 VA right knee x-ray report revealed severe degenerative joint disease medial joint compartment, bone-on-bone. At a May 2017 VA clinic visit, the Veteran reported that following his right total knee replacement, his swelling had resolved, but he still had occasional "catching" at the knee with associated falls. He wore a right knee brace, but still had a feeling like "catching." An August 2017 VA treatment record documents that the Veteran complained of bilateral knee pain with daily catching of his right knee and many falls. He had not had any falls when he used his walker, but he had fallen with his cane. At an October 2017 VA examination, the Veteran reported that he continued to experience bilateral knee pain following total knee replacements. No flare-ups or functional loss were reported. The Veteran regularly used a brace and walker for assistance. Range of motion testing revealed right knee flexion to 92 degrees with pain, right knee extension to zero degrees without pain, left knee flexion to 90 degrees with pain, and left knee extension to zero degrees without pain. Following repetitive use testing, there was no additional functional loss or range of motion. There was evidence of pain with weightbearing and objective evidence of tenderness or pain with palpation. The October 2017 VA examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Ankylosis was not found. No history of recurrent subluxation and normal joint stability testing results were noted. Noting the Veteran's bilateral total knee joint replacements, the October 2017 VA examiner found that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion in both knees. At a December 2017 VA clinic visit, the Veteran reported having fallen a few times after his right knee gave out. He did not fall with a walker. He also had intermittent swelling of the right knee and bilateral knee pain. In June 2019, the Veteran underwent an independent medical evaluation by a board certified Physical Medicine and Rehabilitation physician. The independent physician noted that the Veteran arrived at the evaluation in a motorized wheelchair and observed that the Veteran had difficulty ambulating. Following an objective evaluation, the independent physician found that the Veteran had significant degenerative joint disease affecting his knees. The independent physician found that the Veteran was unable to ambulate without contact guarding when he did not have his walker available. Based on the history taken from the Veteran, the physical examination of the Veteran, the independent physician's clinical experience, and the records reviewed, the independent physician opined that the Veteran's bilateral knee condition was much more severe than his rating would suggest. The independent physician found that the Veteran had chronic residuals following his bilateral knee replacements with limited motion, weakness, and pain. At a December 2019 VA examination, the Veteran reported how his right knee pain was worse than his left knee pain. No flare-ups were reported. He reported having functional loss characterized by difficulty bending, kneeling, squatting, and prolonged walking. The Veteran regularly used a brace and walker for assistance. Range of motion testing revealed right knee flexion to 90 degrees with pain, right knee extension to zero degrees with pain, left knee flexion to 100 degrees with pain, and left knee extension to zero degrees with pain. Following repetitive use testing, there was no additional functional loss or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran had an antalgic and guarded gait. The December 2019 VA examiner found no ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing results were normal. Noting the Veteran's bilateral total knee joint replacements, the December 2019 VA examiner found that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion in both knees. At a February 2021 VA examination, the Veteran reported having constant right knee pain, right knee giving out when walking, right knee swelling, and off and on left knee pain. His left knee did not reportedly give out. He needed to use a walker or cane for assistance. He reported having flare-ups of sharp pain of moderate severity, which occurred once a week and lasted one day. There was no loss of function during flare-ups. Range of motion testing revealed right knee flexion to 110 degrees with pain, right knee extension to zero degrees without pain, left knee flexion to 110 degrees with pain, and left knee extension to zero degrees without pain. Following repetitive use testing, there was no additional loss of function or range of motion. There was evidence of non-weightbearing pain. For the Veteran's left and right knee, the February 2021 VA examiner found that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time. For the Veteran's right knee, the February 2021 VA examiner found that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with flare-ups. For the Veteran's left knee, pain significantly limited functional ability with flare-ups. His left knee flexion was further limited to 90 degrees. No ankylosis was noted. There was no recurrent subluxation, persistent instability ligament tear, recurrent patellar instability, or tibial or fibular impairment found. Following bilateral total knee replacements, the February 2021 VA examiner found residuals of weakness and reduction in range of motion. Based on a careful review of all the subjective and clinical evidence, the Board finds that from May 1, 2015 to the present, the Veteran's service-connected left knee disability does not warrant a higher 60 percent evaluation under Diagnostic Code 5055. In other words, the evidence does not demonstrate that the Veteran's left knee disability more closely approximates prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. On that basis, the Board recognizes the Veteran's subjective reports of left knee pain, however, he consistently reported that his right knee pain was worse in severity and duration. Notably, at his May 2019 Board hearing, the Veteran testified that his left knee painful motion occurred "once in a while," and he only wore a brace on his left knee "once in a while." Overall, the Veteran said that his pain, weakness, and instability was worse on the right knee. Most recently, at his February 2021 VA examination, the Veteran reported that he had no left knee giving way. Significantly, at each of the Veteran's VA examinations in June 2014, October 2017, and December 2019, the VA examiners repeatedly found that the Veteran's post-surgical residuals were characterized by intermediate degrees of residual weakness, pain or limitation of motion. At his February 2021 VA examination, the VA examiner found weakness and reduced range of motion. Although the June 2019 independent physician found that the Veteran's left knee disability was worse than currently rated, the independent physician did not provide specific clinical findings associated with that conclusion. Thus, the Board finds that based on the Veteran's subjective reports and the overall clinical findings, there is no basis upon which to award a higher 60 percent evaluation for the Veteran's service-connected left knee disability from May 1, 2015 to the present under Diagnostic Code 5055. As noted above, Diagnostic Code 5055 provides that a prosthetic replacement of knee joint with intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to diagnostic codes 5256, 5261, or 5262. On that basis, the Board considered whether the Veteran was entitled to a higher than 30 percent evaluation under Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension) or 5262 (impairment of tibia or fibula). However, in this case, at no time during the relevant appeal period does the Veteran's left knee disability manifest ankylosis, extension limited to 30 degrees, or nonunion of the tibia and fibula with loose motion requiring brace. Thus, from May 1, 2015 to the present, the Board concludes that the Veteran's service-connected left disability is no more than 30 percent disabling. Furthermore, based on a careful review of all the subjective and clinical evidence, the Board finds that from March 21, 2014 to February 3, 2016, the Board finds that the Veteran's service-connected right knee disability does not warrant a higher 20 percent evaluation under either Diagnostic Code 5260 or 5261. In other words, the Veteran's right knee disability does not manifest flexion limited to 30 degrees or extension limited to 15 degrees. Notably, the clinical findings at the June 2014 VA examination showed the Veteran's right knee flexion was no less than 135 degrees, and his right knee extension was normal. Furthermore, the Veteran had no additional limitation in range of motion following repetitive use testing. The Board is sympathetic to the Veteran's reports of right knee pain, which was aggravated by walking, only being able to walk with a rolling walker for 50 feet, and needing help with getting dressed, cooking, and shopping. However, based on the above clinical findings, there is no basis upon which to award a higher 20 percent evaluation for the Veteran's service-connected right knee disability under either Diagnostic Codes 5260 or 5261. Notably, the clinical findings at the June 2014 VA examination are more consistent with a noncompensable evaluation under Diagnostic Code 5260 or 5261. Nevertheless, the Veteran has been assigned a minimum 10 percent evaluation under Diagnostic Code 5003. Furthermore, consideration of a higher evaluation under Deluca is also not applicable, because the Veteran did not report having any flare-ups, and no additional limitation in range of motion was found following repetitive use testing. Overall, the Board concludes that from March 21, 2014 to February 3, 2016, the Veteran's service-connected right knee disability is no more than 10 percent disabling. Finally, based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, from April 1, 2017 to the present, his service-connected right knee disability warrants a higher 60 percent evaluation under Diagnostic Code 5055. In other words, the evidence demonstrates that the Veteran's right knee disability more closely approximates prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran's subjective reports of constant right knee pain and giving way with associated falls requiring him to use a brace, walker, and scooter for assistance provide the most probative evidence describing the extent of his right knee symptoms as he consistently reported his symptoms throughout the appeal period. Further, the Veteran also repeatedly indicated that his right knee symptoms were significantly worse than this left knee symptoms. Taking into consideration the clinical findings at the October 2017, December 2019, and February 2021 VA examiners as well as the findings and opinions of the June 2019 independent physician, the Board finds that the VA examiners and the independent physician agree that the Veteran's right knee disability had significant residuals following his total knee replacement. Although the VA examiners did not find objective evidence of right knee instability, the Board finds that the Veteran's competent and credible reports coupled with his need to rely on a knee brace, rolling walker and scooter for ambulation supports that his right knee regularly gave way. Overall, the Veteran's right knee symptoms of right knee pain, weakness, limited range of motion, and giving way are so debilitating as to be more consistent with the 60 percent evaluation under Diagnostic Code 5055. Accordingly, the Board finds that from April 1, 2017 to the present, the Veteran's service-connected right knee disability warrants a higher 60 percent evaluation. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 30 percent evaluation claim for a left knee disability from May 1, 2015 to the present. Additionally, the preponderance of the evidence of the evidence weighs against finding in favor of the Veteran's higher than 10 percent evaluation claim for a right knee disability from March 21, 2014 to February 3, 2016. Therefore, the benefit-of-the doubt rule does not apply, and the higher evaluation claims must be denied. Resolving all reasonable doubt in favor of the Veteran, from April 1, 2017, a 60 percent evaluation for a right knee disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for post splenectomy is remanded. In the November 2020 remand, the Board instructed the AOJ to schedule a VA examination to assess the nature and current severity of any complications of the Veteran's splenectomy. Specifically, the Board directed that if any residual disability was deemed to be secondary to the Veteran's service-connected post splenectomy, the examiner must report the extent and severity of the symptoms of the disability in accordance with VA rating criteria using the corresponding Disability Benefits Questionnaire. In a February 2021 VA examination for hematologic and lymphatic conditions, the VA examiner noted that the Veteran had undergone a splenectomy in 1990. The Veteran had current symptoms of pain in the left upper quadrant off and on, which was worse with lifting. In an August 2021 VA opinion, the VA examiner determined that the Veteran's chronic left upper quadrant pain was attributable to his service-connected post splenectomy. However, the Board notes that neither the February 2021 VA examiner nor the August 2021 VA examiner reported the extent and severity of the chronic left upper quadrant pain as directed by the November 2020 remand. The Board finds that the February 2021 VA examination and August 2021 VA opinion are both inadequate for rating purposes and did not substantially comply with the November 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, a remand is required to obtain a supplemental VA opinion. 2. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU. However, the claim for a TDIU may be affected by the outcome of the higher evaluation claim for post splenectomy. Thus, it would be premature to adjudicate the TDIU claim until the higher evaluation claim has been considered. Therefore, the issues are inextricably intertwined, and the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's post splenectomy that are not current of record. 2. Obtain an addendum opinion from the August 2021 VA examiner, or if unavailable, another appropriately qualified examiner, to report the extent and severity of the left upper quadrant pain attributed as a residual of the Veteran's post splenectomy as identified in the February 2021 VA examination report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If, and only if, the examiner determines that an examination is necessary to provide the requested information, should a new VA examination be scheduled. All findings should be fully documented in the examination report. 3. To avoid another remand, the AOJ must review the requested development and ensure that the Board's specific instructions have been completed in full. If any development is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After ensuring the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.