Citation Nr: 21073330 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 09-47 759 DATE: December 8, 2021 ORDER Entitlement to an increased rating for a right knee disability currently evaluated as residuals of a total knee arthroplasty (TKA) with a temporary 100 percent rating assigned from January 18, 2019 prior to March 1, 2020 and 30 percent disabling from March 1, 2020, previously rated as 10 percent prior to August 25, 2011 and from October 1, 2011 to January 17, 2019 for degenerative arthritis status post right knee injury (hereinafter "right knee disability ) is denied. Entitlement to an increased rating for a right knee meniscal cartilage disability currently evaluated as 20 percent disabling prior to August 25, 2011, to include a separate 10 percent rating for symptomatic residuals of torn meniscus from October 1, 2011 to January 20, 2013 and rated as 20 percent disabling from January 21, 2013 to January 17, 2019 is denied. FINDINGS OF FACT 1. As of March 1, 2020 the Veteran's residuals of right knee TKA do not reveal chronic residuals of severe painful motion or weakness in the affected extremity. Further there is no evidence of ankylosis, limited extension, impairment of the tibia and fibula warranting an analogous rating under the applicable criteria. 2. Prior to August 25, 2011 and from October 1, 2011 to January 17, 2019, the evidence fails to show that the Veteran's degenerative arthritis resulted in limitations of flexion or extension to a compensable degree even with consideration of flareups and repetitive use. 3. For the appeal period when the Veteran had a torn meniscus prior to August 25, 2011, to the period from October 1, 2011 to January 20, 2013 when he had symptomatic residuals of meniscus repair and for the period from January 21, 2013 to January 17, 2019 when he had recurrence of torn meniscus, the evidence does not show evidence muscle atrophy, any additional factors of disability, ankylosis, recurrent subluxation or persistent instability, or disability of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent disabling for residuals of a right TKA beginning March 1, 2020 following a period of temporary 100 percent rating from January 18, 2019 ending March 1, 2020 have not been met. 38 U.S.C.A. §§ 1155, 5110(a); 38 C.F.R. §§ 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (in effect prior to and after February 7, 2021) 2. Prior to August 25, 2011 and from October 1, 2011 to January 17, 2019, the criteria for a rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C.A. §§ 1155, 5110(a); 38 C.F.R. §§ 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 3. Prior to August 25, 2011 and from January 21, 2013 to January 17, 2019, the criteria for a rating in excess of 20 percent for right knee torn meniscus have not been met and for the period from October 1, 2011 to January 20, 2013 the criteria in excess of 10 percent disabling for symptomatic residuals of meniscal repair have not been met. 38 U.S.C.A. §§ 1155, 5110(a); 38 C.F.R. §§ 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes from a May 2006 rating which granted a 10 percent rating from December 7, 2004 for a right knee disability classified as degenerative arthritis (formerly residuals of right knee injury). In a March 2014 remand the Board remanded this issue classified as entitlement to a rating in excess of 10 percent for degenerative arthritis, s/p right knee injury (right knee disability) for the appeal period through August 24, 2011 and for the period beginning October 1, 2011. After the matter was returned to the Board following the requested development, in an October 2017 decision, the Board specifically determined that another remand was necessary for the sole purpose of having the RO issue a SSOC to address pertinent medical records and a VA examination of August 2017 since the last SSOC was issued in November 2015. However, the Board simultaneously decided that it would be adverse to remand the entire claim without granting any benefits supported by the evidence available at the time. Thus, the Board granted a separate 20 percent for right knee meniscal cartilage disability separate from the right knee arthritis prior to August 25, 2011 and since January 21, 2013 based on evidence of a torn meniscus and osteoarthritis (OA) with pain, effusion, giving way and locking. A separate 10 percent rating was assigned for the right knee degenerative arthritis from August 25, 2011 through January 20, 2013 based on OA and symptomatic residuals of removal of semilunar cartilage, but not with flexion limited to 30 degrees or less or extension of 15 degrees or less. In November 2019 the Board remanded this matter again due to the addition of medical records obtained in 2019 and evidence of a total knee arthroplasty (TKA). At the time of the November 2019 remand, a temporary 100 percent disability post TKA was in effect but was due to expire shortly. However, the Board specifically declined to disturb the portion of the prior October 2017 Board decision finding that a rating in excess of 10 percent disabling for arthritis of the right knee was not warranted, on the basis that there had been no appeal to the Court of Appeals for Veterans Claims CAVC regarding this matter. For the same reason, the Board likewise declined to disturb the October 2017 Board decision granting separate increased staged ratings of 20 percent prior to August 25, 2011 to include a separate 10 percent rating for residuals of a torn meniscus from October 1, 2011 to January 20, 2013 and which continued a 20 percent rating for the meniscal disability for the meniscal disability from January 21, 2013. This 20 percent disability was noted to continue to January 17, 2019. The residuals of right knee TKA has been reduced to 30 percent from 100 percent effective March 1, 2020. The Board notes that a claim for entitlement to total disability rating due to individual unemployability due to service connected disability (TDIU) had been determined to have been withdrawn and could not be reinstated by the Board in its March 2014 decision. The Veteran appealed the Board's decision regarding the TDIU claim to the CAVC, which in a March 2015 Memorandum Decision confirmed the Board's determination that the TDIU claim was withdrawn. A new claim for TDIU was submitted by the Veteran on March 19, 2014. The new TDIU claim was remanded as inextricably intertwined with another claim for service connection for a psychiatric disorder by the Board in its October 2017 decision. Subsequently an August 2020 rating decision granted service connection for a major depressive disorder and entitlement to TDIU. The TDIU grant was effective March 19, 2014 the date of the new claim for TDIU. Thus these issues were granted in full and there is no claim for TDIU that is part and parcel of this appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected right knee disability, in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 ; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board notes that, effective February 7, 2021, there were revisions to the regulations pertaining to musculoskeletal disabilities, to include changes to the pertinent rating criteria, including DC 5010 for traumatic arthritis, DC 5257 for disability of the knee with recurrent subluxation or instability, DC 5055 for knee replacement and DC 5262 for impairment of tibia and fibula. 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a , Diagnostic Codes 5010, 5257, 5055, 5262. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Claims such as this, pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. Thus, the Board will consider all applicable criteria in evaluating the Appellant's claims. Prior to February 7, 2021, DC 5010 was rated as traumatic arthritis, and provided for an evaluation of an affected joint under DC 5003, for degenerative arthritis. Degenerative arthritis confirmed by x-ray provides for evaluation based on limitation of motion of the affected joint, with a minimum 10 percent rating for each major joint or group of joints. 38 C.F.R. § 4.71a , DCs 5003, 5010 (in effect prior to February 7, 2021). Under the revised version of DC 5010, traumatic arthritis is now 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 §4.25. Prior to February 7, 2021, DC 5257, slight recurrent subluxation, or lateral instability, was rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Under the revised version of DC 5257, a 30 percent rating is assigned for recurrent subluxation or instability: 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. A 20 percent rating is assigned for recurrent subluxation or instability with 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. (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. A 10 percent rating is assigned for recurrent subluxation or instability with 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 patellar instability, a 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. 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. A 10 percent 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. Notes following the amended version of DC 5257 include the following: Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note (2): 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). Prior to February 7, 2021, under DC 5262 for impairment of the tibia and fibula, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. The amended version of DC 5262 still applies to impairment of the tibia and fibula, and directs the rater to evaluate malunion under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. The revised version of DC 5262 provides additional ratings for medial tibial stress syndrome or shin splints. If there is medial tibial stress syndrome (MTSS) or shin splints, a noncompensable rating is assigned for treatment less than 12 consecutive months, for one or both lower extremities. A 10 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to either shoe orthotics or other conservative treatment, for one or both lower extremities. A 20 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, for one lower extremity. Finally, a 30 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, for both lower extremities. The criteria of DC 5055 evaluate impairment arising from the prosthetic replacement of a knee joint. Prior to the February 7, 2021 regulatory revisions, under DC 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Following the February 7, 2021 regulatory revisions, under DC 5055 for knee resurfacing or replacement, for four months following the implantation of a knee prosthesis or resurfacing, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement with a prosthetic for a total knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). A note the to the DC provides that at the conclusion of the 100 percent evaluation period, resurfacing should be evaluated under DCs 5256 through 5262; there is no minimum evaluation for resurfacing. The other pertinent criteria that were not affected by the revisions are as follows. DC 5260 (limitation of flexion of the leg) provides a 10 percent rating when flexion is limited to 45 degrees; 20 percent rating when flexion is limited to 30 degrees; and 30 percent rating, the maximum available, when flexion is limited to 15 degrees. Id. For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. DC 5261 (limitation of extension of the leg) provides a 10 percent (compensable) rating when extension is limited to 10 degrees; 20 percent rating when extension is limited to 15 degrees; 30 percent rating when extension is limited to 20 degrees; 40 percent rating when extension is limited to 30 degrees; and 50 percent rating when extension is limited to 45 degrees. Id. For VA compensation purposes, normal range of motion for the knee is extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. DC 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides for a single 10 percent rating for symptomatic residuals of removal of torn semilunar cartilage. Again as noted above, the Board in its November 2019 remand previously declined to disturb the portion of the prior October 2017 Board decision that adjudicated the claim including granting a separate 20 percent for right knee meniscal cartilage disability separate from the right knee arthritis prior to August 25, 2011 and since January 21, 2013, granting a separate 10 percent rating for the right knee degenerative arthritis from August 25, 2011 through January 20, 2013 based on OA and symptomatic residuals of removal of semilunar cartilage and declining to grant a rating in excess of 10 percent disabling for arthritis. In this current decision, the Board likewise shall not revisit that decision, to include discussing the evidence (including multiple VA examinations from February 2008, June 2009, June 2014, October 2015, and treatment records prior to November 2015) that was previously addressed by the Board in its decision, and was reviewed by the RO in the most recent SSOC was issued in November 2015 prior to the October 2017 decision. However, the Board's October 2017 decision remanded a portion of the appeal to permit review by the Agency of Original Jurisdiction (AOJ) of certain evidence obtained after the November 2015 SSOC to include a VA examination of August 2017 and multiple treatment records. Given the above, the Board shall address the evidence obtained after the November 2015 SSOC, which has since been reviewed by the RO, and will address whether the evidence warrants any additional increase beyond that already granted by the Board's October 2017 decision and continuing to the present. The pertinent evidence includes records from 2005 and 2006 that were associated with the claims file in September 2017. In December 2005, the Veteran reported issues with knees being somewhat uncomfortable, with occasional locking and grinding. X rays from 2003 showed mild DJD. Physical examination revealed crepitus in his right knee but there was full extension and negative instability in a December 2005 record. In January and February 2006 he had knee issues including locking sensation and crepitus. He was issued a knee brace in February 2006. . Among the volumes of VA treatment records obtained are those duplicative to those reviewed by the Board in its October 2017 decision, regarding knee symptoms both prior to, during and after an August 25, 2011 private right knee arthroscopy, partial medial meniscectomy, and partial lateral meniscectomy for preoperative diagnoses of right knee medial and lateral meniscus tears. The records document complaints of 8/10 pain in the knees reported in August 2009 described as progressively worsening, with joint stiffness, limited range of motion and no crepitus. X-rays from June 2009 revealed very mild DJD. In December 2009 and January 2010 the pain persisted and the potential need for early surgery was discussed in the January 2010 record. At that time there was also breakaway weakness of 4/5 due to pain on knee extension. However, no laxity was noted to anterior-posterior or medial lateral stresses. In January 2010 he was seen in urgent care for right knee pain described as worsening for many years. He was using a cane to ambulate, was limping, and had decreased range of motion due to pain. Crepitus was also noted. He was assessed with chronic knee arthralgia. The records from the end of 2010 and prior to the August 2011 surgery showed ongoing complaints of right knee pain along with some tenderness to palpation noted in May 2011, limited motion, and mild swelling as well as walking with a cane noted in July 2011. Also in July 2011 he was noted to walk one block. He was diagnosed with degenerative meniscal tear of the right knee on July 25, 2011. The VA records after the private August 2011 arthroscopy revealed orders for physical therapy (PT) requested in September 2011. In October 2011 he reported fluid removed from his knee and he was using ice and elevation. PT had not been ordered at the time. In November 2011 he continued to have issues of right knee pain and also had slightly stiffened and passive limited range of motion. In January 2013 he was noted to report the right knee was painful and continued swelling as well as a sensation of giving out on him. The VA records from 2014 and 2015 showed ongoing issues with chronic right knee pain treated with pain medication in January and May 2014. In January 2015 the Veteran reported 8/10 pain in the right knee. In July 2015 the Veteran had pain and swelling of the right knee and he was using a cane for ambulation and ice for swelling. Physical therapy was ordered. His pain was described in August 2015 as "bone on bone" and aching, with the pain exacerbated by standing and no alleviating factors. He was disinterested in therapy due to concern of symptoms being worsened by activity. On examination, the range of motion was full but with severe pain past 90 degrees flexion of the right knee. Strength was essentially normal, and sensation was intact. Testing for instability was all normal. The impression was right knee DJD bipartite patella of normal variant. There was a right knee brace ordered. He continued with pain ranging from 5/10, 7/10, 8/10 and 9/10 in records from November 2015, January 2016, and May 2016. He reported receiving extra strength Vicodin from an outside provider. Mental health treatment records indicated that he used a cane to walk due to knee pain but was no longer using a wheelchair. Records from 2017 show ongoing issues with right knee pain described in February 2017 as a constant aching that progresses to stabbing with activity, which caused him to stop walking. He had limited motion largely due to pain and tenderness to palpation, as well as pain on varus and valgus strain. An April 2017 orthopedic record revealed his range of motion of 0-90 degrees with no instability of the right knee. In July 2017 his right knee pain was 9/10 triggered by activity and weather. He was noted to wear a knee brace and use a cane. His pain was the same 9/10 level in August 2017 with injections said to not helped in the past. Examination revealed full active and passive ROM, with bilateral tenderness to palpation (TTP) and pain on varus and valgus strain and (+) TTP on the medial surface of the right knee. Occupational therapy records from August 2017 revealed complaints of pain and giveaway in his knees and reports of the knee giving way but he did not fall. He was noted to use a rollator walker to decrease his falls due to lower extremity weakness. He was noted to avoid using his legs on a Nu-Step bike for exercises due to knee pain. He was independent to use the rollator and did not have any falls since using it. In October 2017 he expressed interest in physical therapy for right knee pain. He had full range of motion on flexion and extension and stability tests were negative. In December 2017 a PM&R consult revealed he was able to walk a half block using a rollator but got sharp pain in his knees and the right knee would give out. Physical examination was limited due to guarding his knees. The knee was tender to palpation and he had limited flexion and extension due to pain. He was unable to perform ligament and McMurray's testing due to pain. Records from 2018 showed that in February 2018 the Veteran requested reassessment for powered mobility for chronic bilateral knee pain. He could ambulate 1/2 block using a cane and was unable to use rollator due to his shoulder being in a shoulder in a sling. He reported getting sharp pain in both knees and the right knee will give out. He used a right knee brace as needed for stability. He is not physically active. Examination was limited due to knee pain, but he had limited flexion and extension due to pain and tenderness to palpation of the medial joint line and pes anserine bursa. He was found to not meet the criteria for powered mobility, and he was encouraged to stay physically active and perform knee exercises at home. He had a brace, rollator and cane with no other equipment needed. He continued to have knee pain with limited motion and mid joint line pain, crepitus, and pain on motion in March 2018 and June 2018. Also in June 2018 he reported his right knee catches and gives way, and examination revealed crepitus with McMurray's test and no gross instability. Mild effusion was noted. MRI was consistent with arthritis and degenerative medial meniscal tear. Patient wishes to pursue surgical options in treatment. He had a cane for ambulation. A hinged Don Joy brace was ordered. In August 2018 a rehab medicine note described right knee pain due to medial meniscus tear treated by orthopedics. On examination his gait was unsteady. He used a 1 point cane and right knee brace for support and a wheelchair in the clinic. Range of motion was limited by pain in the right knee and there was tenderness to palpation. His MRI of May 2018 diagnosed a complex medial meniscus tear but no evidence of lateral meniscus tear of the right knee. In October 2018 he was seen by orthopedic surgery, he was treated to right knee pain and was awaiting surgical consultation for the right knee pain. He was using a cane for ambulation and had mild effusion of the right knee. In December 2018 he said his worst pain was in his right knee with the pain alleviated with rest and medications. He had right knee pain associated with giving way and feeling unstable with associated swelling at times. He declined examination due to knee pain fears and was assessed with chronic right knee pain which appeared due to patellofemoral pain syndrome. He was deciding whether he wanted to get TKA surgery by an outside physician. In January 2019 he was evaluated for a proposed right TKA scheduled for January 18, 2019. Thereafter, the Veteran underwent right knee TKA on January 18, 2019, with postsurgery VA records showing followup and physical therapy for several months after such surgery. He was under a total 100 percent disability rating from the date of surgery on January 18, 2019 and ending on March 1, 2020. Therefore, it is not necessary to address his right knee symptoms during this time period. Records after the expiration of the post TKA temporary total disability rating ending on March 1, 2020 reveal ongoing complaints of right knee pain incidentally noted during psychiatric treatment in May 2020. See 111 pg. CAPRI received 8/21/20 at pg. 49-51. The Veteran underwent VA examinations in August 2017 prior to his TKA, in February 2020 a year after his TKA during a period of temporary total disability rating, and in February 2021 two years post-TKA. These examinations are all are noted to show ranges of motion within noncompensable ranges including after repetitive use and with pain and functional loss during flareups and repetitive use over time. The August 2017 VA examination revealed an initial range of motion was 0-90 degrees with pain on flexion and extension and no additional loss after three repetitions. He had pain on passive range of motion of the right knee. The examiner was unable to say without speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or flareups. The reason given was that it was unwitnessed for repeated use over time and for flareups the examiner determined it was not feasible to produce an opinion about the decreased range of motion which occurs during a flareup as it could be a guess from the Veteran which would be inaccurate. The February 2020 VA examination revealed an initial range of motion from 0-95 degrees, with pain on flexion that did not cause functional loss. A loss of motion after 3 repetitions was from 0 to 50 degrees. The same 0-50 degrees range of motion was noted after flareups and repetitive use over time for the same reasons. Passive and active range of motion was the same, with no pain on passive motion. The February 2021 VA examination revealed an initial range of motion of the right knee from 0-70 degrees, with pain on flexion. The examiner did not indicate that the degree where pain began differed from initial range of motion. Passive was same as active motion and there was no change after 3 repetitions. The Veteran was not being examined immediately after repeated use over time. However statements from the Veteran suggested that pain, fatigability, weakness, lack of endurance or incoordination significantly limit his functional ability with repeated use over time. The estimated range of motion was 0-60 after repeated use over time and after flareups in the February 2021 examination. There was evidence of pain on active and passive motion with pain causing functional loss. Regarding pain on weightbearing and non-weightbearing the August 2017 and February 2020 VA examination revealed no pain on non-weightbearing. The February 2021 VA examination showed evidence of pain on weight bearing and non-weightbearing. The Veteran's muscle strength was 5/5 in the August 2017 examination and 4/5 in the February 2020 examination. There was no muscle atrophy, no issues with recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome or any other tibial fibular impairment, no additional factors of disability, no ankylosis, no recurrent subluxation or persistent instability, no ligament tear, no prescription for a medical aid such as cane, walker, crutches, or brace for ambulation in any of the examinations from August 2017, February 2020, and February 2021. However, he repeatedly was noted to use assistive devices, specifically a cane, in all examinations. The examinations noted use of a cane and walker regularly with the walker used outside the house and cane at home. He also used a brace as reported in the February 2021 VA examination. The nonservice-connected knee was examined with the right knee in these examinations with the exception of the February 2021 examination where the examiner stated the left knee could not be tested as it was an unclaimed damaged joints. The nonservice-connected knee was examined with the right knee in these examinations with the exception of the February 2021 examination where the examiner stated the left knee could not be tested as it was an unclaimed damaged joint. All three examinations revealed evidence of a surgical scar that was not shown to be painful, unstable, have a total area equal to or greater than 39 square cm (6 square inches) or located on the head, face, or neck. 1. Entitlement to an increased rating for a right knee disability currently evaluated as residuals of a total knee arthroplasty (TKA) with a temporary 100 percent rating assigned from January 18, 2019 prior to March 1, 2020 and 30 percent disabling from March 1, 2020, previously rated as 10 percent prior to August 25, 2011 and from October 1, 2011 to January 17, 2019 for degenerative arthritis status post right knee injury (hereinafter "right knee disability ) is denied Regarding the residuals of TKA currently evaluated as 30 percent disabling from March 1, 2020, the Board finds that the evidence does not support a rating in excess of this based on review of the criteria in effect prior to or as of February 7, 2021. The findings from the records after March 2020 and the February 2021 VA examination, discussed above, do not reveal chronic residuals of severe painful motion or weakness in the affected extremity. Further, there is no evidence of ankylosis, limited extension, or impairment of the tibia and fibula warranting an analogous rating under the applicable criteria. Again, the residuals noted in the February 2021 VA examination shows noncompensable motion with full extension, although with painful motion noted. There is not shown to be weakness or atrophy shown in this evidence. Thus, the evidence fails to support a rating in excess of the 30 percent minimum rating for residuals of TKA as of March 1, 2020. Regarding the evaluation of the right knee disability prior to the TKA of January 18, 2020, then rated as 10 percent prior to August 25, 2011 and from October 1, 2011 to January 17, 2019 for degenerative arthritis status post right knee injury (hereinafter "right knee disability), the evidence fails to show that the Veteran's degenerative arthritis resulted in limitations of flexion or extension to a compensable degree even with consideration of flareups and repetitive use. This is shown in the records and the VA examination report of August 2017 reviewed by the Board in this decision, in addition to the evidence already addressed the prior Board decision of October 2017. The records showed painful motion, but as noted in July 2015, when his pain was described as "bone on bone" his range of motion was full but with severe pain past 90 degrees flexion of the right knee. His range of motion was again 0-90 in an April 2017 record. None of the evidence reviewed in this decision suggested flexion is limited to 45 degrees plus extension limited to 10 degrees, which would be 10 percent each (adding to 20 percent), nor of flexion limited to 30 degrees which standing alone would be 20 percent disabling, nor an extension limited to 15 degrees which standing alone would be 20 percent disabling. Thus, his arthritis is not shown to warrant more than a 10 percent rating under pertinent criteria for arthritis under DC 5010 with loss of motion in effect prior to February 7, 2021. See also DC 5260, 5261. Because this period from prior to August 25, 2011 and from October 1, 2011 to January 17, 2019 predates the February 7, 2021 revisions, the pre February 2021 criteria applies during this period. See Kuzma, supra. 2. Entitlement to an increased rating for a right knee meniscal cartilage disability rated as 20 percent disabling prior to August 25, 2011, to include a separate 10 percent rating for symptomatic residuals of torn meniscus from October 1, 2011 to January 20, 2013 and rated as 20 percent disabling from January 21, 2013 to January 17, 2019 is denied. The Board in its October 2017 decision granted a 20 percent rating for a meniscal cartilage disability under DC 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint) from the pendency of the appeal period (which was implemented by the RO as December 7, 2004) prior to August 25, 2011. Then following arthroscopic surgery on August 25, 2011 with a convalescent period, which was awarded a temporary 100 percent rating by the RO ending on October 1, 2011, the Board's October 2017 decision granted a 10 percent rating under DC 5259 (symptomatic residuals of removal of torn semilunar cartilage) from October 1, 2011 to January 20, 2013. Thereafter, based on right knee MRI results of January 21, 2013 which revealed a complex tear of body segment medial meniscus and small joint effusion, the Board again granted a 20 percent rating under DC 5258 for the period from January 21, 2013 to January 17, 2019, prior to his January 18, 2019 TKA surgery. The 20 percent rating under DC 5258 and the 10 percent rating under DC 5259 are the maximum ratings under these criteria. The additional evidence reviewed by the Board in this decision fails to show additional disability beyond these already compensated manifestations of cartilage disability. The evidence does not muscle atrophy, any additional factors of disability, ankylosis, recurrent subluxation or persistent instability, or disability of the tibia and fibula. The records and examination reports discussed in detail above did report occasional locking and grinding, and some concerns of falls but with stability tests repeatedly normal. Furthermore, the records and examination reports failed to show objective evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial fibular impairment. Thus, higher ratings in excess of 20 percent prior to August 25, 2011, in excess of 10 percent from October 1, 2011 to January 20, 2013 and in excess of 20 percent from January 21, 2013 to January 17, 2019 are not warranted under DCs 5256, 5257, or 5262. Again, because this period predates the February 7, 2021 revisions, the pre February 2021 criteria applies during this period. See Kuzma, supra. Other matters The Board further notes that there is evidence of a surgical scar of the right knee repeatedly noted on VA examinations. However it is not shown to be painful, unstable, have a total area equal to or greater than 39 square cm (6 square inches) or located on the head, face, or neck. Thus, a separate compensable rating for the surgical scar is not warranted. 38 C.F.R. 4.118, 7800-7804. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.