Citation Nr: 21073638 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 12-30 516 DATE: December 9, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for medial collateral ligament instability of the right knee is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to a disability rating in excess of 20 percent for osteoarthritis of the left knee is denied. Entitlement to a disability rating in excess of 20 percent for instability of the left knee is denied. From September 27, 2011 entitlement to a separate 20 percent rating for meniscal condition, right knee, is granted. From September 27, 2011 entitlement to a separate 20 percent rating for meniscal condition, left knee, is granted. From May 6, 2010, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran's right knee instability has not been shown to be greater than moderate in degree at any point during the appeal period; nor has there been a showing of unrepaired or failed repair of complete ligament tear causing persistent instability; nor has a medical provider prescribed an assistive device and bracing for ambulation; nor 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. 2. The Veteran's demonstrated right knee limitation of motion due to degenerative joint disease has never been greater than 45 degrees of flexion or 10 degrees of extension. 3. The Veteran's demonstrated left knee limitation of motion due to osteoarthritis has never been greater than 15 degrees of extension and limitation of flexion to a compensable degree has not been shown. 4. The Veteran's left knee disability has not been shown to be greater than moderate in degree at any point during the appeals period; nor has there been a showing of unrepaired or failed repair of complete ligament tear causing persistent instability; nor has a medical provider prescribed an assistive device and bracing for ambulation; nor 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. 5. From September 27, 2011 to May 23, 2012, the Veteran's right knee is manifested by meniscal injury with frequent episodes of locking and pain. 6. From September 27, 2011 to May 23, 2012, the Veteran's left knee is manifested by meniscal injury with frequent episodes of locking and pain. 7. From May 6, 2010, the Veteran's service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for medial collateral ligament instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of motion due to degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, and 5261. 3.The criteria for entitlement to a disability rating in excess of 20 percent for limitation of motion due to osteoarthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, and 5261. 4. The criteria for entitlement to a disability rating in excess of 20 percent for instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. From September 27, 2011 to May 23, 2012, the criteria for entitlement to a separate disability rating of 20 percent for meniscal tear, right knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 6. From September 27, 2011 to May 23, 2012, the criteria for entitlement to a separate disability rating of 20 percent for meniscal tear, left knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 7. From May 6, 2010, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from September 1965 to September 1967. In October 2020, the Board of Veterans' Appeals (Board) denied increased ratings for medial collateral ligament instability of the right knee; degenerative joint disease of the right knee; osteoarthritis of the left knee; and instability of the left knee. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2021 Joint Motion for Remand (JMR) and Court Order, the Board's decision was vacated and remanded for action consistent with the JMR. Increased Ratings The Veteran seeks increased ratings for the disabilities affecting his knees. Those disabilities are presently rated as 10 percent for degenerative joint disease or arthritis in the right knee, 20 percent for arthritis in the left knee, and 20 percent for instability in the right knee and the left knee. The Veteran's claim for increased disability ratings was filed in May 6, 2011, which means that evidence after May 6, 2010 may be considered in reviewing the claim. As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected right and left knee disabilities. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Disability ratings for the knees encompass multiple diagnostic codes and it is possible to be rated for more than one manifestation of disability in each knee. In addition, because knees are part of the musculoskeletal system, when the criteria for compensable ratings are not met based on limitation of motion, a 10 percent disability rating is possible based on painful motion under Diagnostic Codes 5003 and 5010 for arthritis. 38 C.F.R. § 4.71a. This is the basis for the current 10 percent rating assigned for the Veteran's right knee arthritis. Under Diagnostic Code 5257 a 10 percent rating is assigned for either slight recurrent subluxation or slight lateral instability. The criteria for a 20 percent rating are either moderate recurrent subluxation or moderate lateral instability. A 30 percent disability rating is assigned for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, the revised Diagnostic Code 5257 provides a 10 percent rating for a 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. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, the revised Diagnostic Code 5257 provides a 10 percent rating 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 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, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 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). See DC 5257 (Effective February 7, 2021). Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension). Separate ratings may be assigned for limitation of flexion and extension. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, extension limited to 20 degrees is 30 percent disabling, extension limited to 30 degrees is 40 percent disabling, and extension limited to 45 degrees is 50 percent disabling. 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain" and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Other potentially applicable rating codes for knee disabilities include Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum). In this instance the Veteran has not been diagnosed with ankylosis (loss of motion) in the knee, nor impairment of the tibia and fibula, or genu recurvatum. Therefore, these diagnostic codes are not applicable and will not be addressed further. VA clinical records show that in March 2011 the Veteran was treated for symptoms of pain in his knees. (See Medical Treatment Record, 05/25/2011.) Range of motion testing showed extension to 0 degrees in the left knee and flexion to 110 degrees. In the right knee, the Veteran's extension was limited to 10 degrees and he had flexion to 90 degrees. The Veteran's knees also showed evidence of arthritis on X-ray. A statement submitted by the Veteran's wife in September 2011 noted that the Veteran's knee disabilities were getting worse. (See Statement in Support, 09/23/2011.) He had difficulty going up and down stairs and he had to use a cane frequently. At a September 27, 2011 VA examination, the Veteran reported worsening bilateral knee pain and flare-ups. His pain increased with activity, with changing positions from sitting to standing, and when going down stairs. (See VA Examination, 09/27/2011.) Range of motion testing showed full range of motion in both knees (0 degrees of extension and 140 degrees of flexion), with pain at 120 degrees on the right and at 110 degrees on the left. Stability testing was normal on both knees. The examiner checked the 'Yes' box with regard to whether the Veteran has ever had a meniscus (semilunar cartilage) condition with frequent episodes of joint locking and pain in both knees. He was noted to have a leg-length discrepancy, with his left leg being 1 and 12 centimeters longer than his right. He regularly used a cane if he was walking for more than 200 feet, such as when grocery shopping. In the Notice of Disagreement filed in March 2012, the Veteran challenged the findings and the adequacy of the September 2011 VA examination. (See NOD, 03/20/2012.) He specifically asserted that the examination had lasted only five minutes, that the examiner was inexperienced, and that he had not been asked to do anything that might cause him pain and thereby demonstrate his limitations. At a May 24, 2012 VA examination the Veteran reported experiencing flare-ups after performing physical activity. (See VA Examination, 05/24/2012.) Range of motion findings for both knees showed extension to 0 degrees and flexion to 120 degrees, with pain at 120 degrees. He exhibited less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, all of which resulted in functional impairments. The examiner checked the 'No' box with regard to a meniscal condition and found no locking or joint pain. He had a leg length discrepancy, with his left leg measuring one inch shorter than his right. There was no evidence of instability on testing in either knee. He occasionally used a cane when going to the grocery store to prevent his right leg from giving out. X-rays showed bilateral arthritis and the examiner indicated that the Veteran would be unable to do work that involved hiking or walking, traverse stairs without a railing, or stand up after being in a squatting position. Treatment records dated in September 2012 show that the Veteran had varus alignment of both knees. (See Medical Treatment Record, 06/14/2013.) Range of motion testing showed 0 degrees of extension bilaterally with 110 degrees of flexion in the right knee and 105 degrees of flexion in the left knee. There was no evidence of instability. X-rays indicated severe arthritis with bone-on-bone contact in both knees. He had not previously considered a total knee replacement because he had a heart condition. In a statement submitted in October 2012, the Veteran's wife noted that he was unable to play golf, took all day to mow the lawn because of his need for frequent rest breaks, and had difficulty climbing stairs. (See Buddy/Lay Statement, 10/22/2012.) In his VA Form 9, submitted in October 2012, the Veteran asserted that his knee disabilities were not properly rated. (See Form 9, 10/17/2012.) He stated that his knees particularly caused him problems with walking and noted that neither of his VA examinations had included actual walking so that the examiners could see the impact of his condition. He reported that over the years he had learned to walk in a manner that involved minimal bending of the knees to keep them from giving out and as a result could not walk very far without severe pain. He asked for consideration of an extraschedular disability rating, noting that the rating criteria were based on range of motion which he felt did not accurately reflect the functional impairment he experienced due to his knee disabilities. At an informal hearing held at the Agency of Original Jurisdiction (AOJ), the Veteran reported having fallen when his knees had given out. (See Hearing Related, 02/21/2013.) His wife indicated that he was moving much more slowly, and his level of activity had decreased. Because of the difficulty he had with stairs, they had moved into a ranch-style home. The Veteran challenged the findings of the most recent VA examination, asserting that only his flexion range of motion had been measured. At the May 2014 VA examination, the Veteran reported having experienced shin splints in service, which were now completely resolved. (See C&P Exam, 05/05/2014.) He was having pain in both knees at a level of 5 or 6 out of 10 in intensity, with increased pain if he "twisted wrong." He was unable to walk very far as a result of his knee pain. Range of motion testing in the right knee showed flexion limited to 90 degrees, with pain at 40 degrees; after repetitive motion testing, his flexion was reduced to 80 degrees. In the left knee, flexion was to 110 degrees with pain at 50 degrees; after repetitive motion testing, his flexion was reduced to 100 degrees. Extension was to 0 degrees bilaterally. Functional impairments included pain on movement, pain on sitting, standing and weight-bearing, swelling, disturbance of locomotion, and interference with gait. He used a pain constantly for support. The examiner noted that the Veteran could not walk further than 100 feet without stopping to rest and could only walk on uneven ground for very short distances. He could not walk very far without a cane, could not ride a bicycle, could not run, and could no longer bowl or play golf. He was no longer able to drive a manual transmission vehicle and even in his automatic transmission vehicle he used cruise control most of the time. He was able to work at sedentary tasks such as keyboarding, talking on the phone, and other office duties for up to 15 minutes at a time before he needed to readjust and spread the weight over his lower extremities. The examiner estimated that the Veteran's range of motion would likely be reduced by up to 10 degrees of flexion bilaterally during pain flare-ups. While the Veteran reported his knee locking while sleeping, the examiner checked the 'No' box with regard to a meniscal condition. At the April 2016 VA examination, the Veteran was noted to have arthritis in both knees. (See C&P Exam, 04/22/2016.) He reported increased pain in his knees when climbing stairs or kneeling; he could not kneel to work or to pick up objects off the floor. Range of motion testing showed flexion to 70 degrees in both knees, with extension to 0 degrees. He reported pain with weight-bearing and difficulty climbing stairs. After repetitive motion testing, the range of motion in the left knee was unchanged, but in the right knee flexion was decreased to 55 degrees. There was no evidence of instability on testing, although the Veteran did have a history of slight recurrent subluxation and slight lateral instability in the right knee. The examiner noted that any occupation requiring prolonged standing, walking, kneeling, or stair climbing would be difficult for the Veteran to perform. The examiner checked the 'No' box with regard to a meniscal condition. Treatment records dated in June, July, and August 2016 show that the Veteran received physical therapy for his knee disabilities. (See Medical Treatment Record, 07/24/2017.) At the initial visit in July 2016, the Veteran's right knee range of motion was 0 degrees extension and 125 degrees of flexion, with a loss of 15 degrees of extension in the left knee and flexion to 120 degrees. In August 2016, the Veteran's range of motion was unchanged except for an improvement in left knee extension to 10 degrees. At the VA examination in August 2017, the Veteran was noted to have arthritis in both knees, as well as medical collateral ligament instability in the right knee that had caused him to fall on several occasions. (See C&P Exam, 08/21/2017.) He was also experiencing weakness and instability in the left knee, in part because of compensating for his right knee problems. He reported pain flare-ups in both knees, with the pain going from 5 out of 10 in intensity to 7 out of 10; when he had pain flare-ups he would need to change from sitting to standing or vice versa, or at least shift positions. Range of motion testing showed that he had flexion to 60 degrees in his right knee with extension to 10; in the left knee he had flexion to 65 degrees and extension to 15. He had decreased ability to kneel, jump, or run, and had pain with weight-bearing. He no longer used a cane as his chiropractor had told him it was exacerbating his back disability. He had a history of instability in both knees and tried to avoid walking on uneven terrain. On level ground he could walk for 10 minutes without needing to rest. His knees were less painful in the morning and he tried to complete all of his chores early in the day. He was able to perform sedentary work but could only sit for about 30 to 45 minutes before needing to get up and walk around. He said it took him a few minutes to transition from sitting to standing and be able to move smoothly. He demonstrated varus stress to the left knee and valgus stress to the right knee, which the examiner characterized as indicative of multidirectional instability. His strength was 4/5 in each knee and joint stress testing was 4/5 in both knees with respect to the anterior, posterior and medial joints. A private treatment record from October 2017 noted that the Veteran would be a candidate for total knee replacement surgery in both knees. (See Medical Treatment Record, 10/16/2017.) His range of motion at that time was recorded as 0 degrees of extension and 120 degrees of flexion bilaterally. In June 2018, the Veteran submitted another VA Form 9 asserting that the assigned rating for instability of the right knee should be 30 percent rather than 20 percent. (See Form 9, 06/14/2018.) He reported having severe subluxation and instability in his right knee including episodes of locking and giving way, for which he used a cane and a brace to prevent falls. He challenged the VA examination report, asserting that it did not indicate the difficulty he had with repetitive motion testing or the severity of pain he demonstrated. He felt that the examination was inadequate with respect to his range of motion findings and his pain levels. At the September 2018 Board hearing, the Veteran testified that his knees were worse since the last assigned rating and he was considered a candidate for knee replacement surgery. (See Hearing Transcript, 09/13/2018.) He had difficulty wearing clothes that restricted his knees and had to use a handrail to maintain his balance traversing stairs. He found it difficult to traverse uneven terrain and on level ground could only walk for 5 or 10 minutes before he needed to sit down. He was unable to do much of anything without thinking about his knees and reported that heat, ice, and painkillers were no longer very effective for him. He experienced sudden problems with knee stability and locking without warning and his knee problems were worse in the winter. At the October 2019 VA examination, the Veteran reported continuing pain in both knees, as well as episodes of his knees locking up. (See C&P Exam, 10/24/2019.) He reported a constant pain at a level of 5 or 6 out of 10 in intensity, increasing to 8 if he walked more than 100 feet. The only way he could reduce the pain was to sit down and rest. He had to navigate stairs using handrails and taking one step at a time. Walking for more than one block, navigating stairs, or covering uneven ground resulted in pain flare-ups; these could occur more than once a day. During a flare-up he needed to stop and rest for up to 20 minutes for his pain to return to baseline. He could not mow his entire lawn without resting, needed to lean a cart for support when grocery shopping, and could not drive for more than 2 hours at a time without stopping to stretch his legs. Range of motion testing showed flexion to 70 degrees and extension to 15 degrees in the left knee with flexion to 70 degrees and extension to 10 degrees in the right knee. He had difficulty bending, squatting, kneeling, and walking on uneven ground. The examiner offered the opinion that the functional impact of the Veteran's flare-ups was likely to vary depending on the frequency, duration, and severity of the pain and therefore could not be quantified as far as range of motion but would have a moderate impact. Testing showed recurrent mild instability of 0-5 millimeters in both knees, with moderate recurrent subluxation bilaterally. The examiner initially indicated that the Veteran had ankylosis in both knees but filed an addendum opinion clarifying that ankylosis as defined by VA was not shown. The examiner checked the 'yes' box with regard to a meniscal condition and the report noted reports of locking episodes frequent enough that he installed railings in his home. Based on the disability ratings on appeal, there are specific manifestations which must be shown for higher disability ratings to be awarded. With respect to the Veteran's right knee, the evidence would need to show severe instability for a rating higher than the assigned 20 percent rating on appeal, as well as impairment of either flexion to less than 45 degrees or impairment of extension to more than 10 degrees for a rating higher than the current 10 percent. For the left knee, the evidence would need to show severe instability for a rating higher than the assigned 20 percent, and impairment of range of motion with extension limited to less than 30 degrees or extension limited to greater than 15 degrees. Right knee Initially, the Board notes that pursuant to Diagnostic Code 5258, a separate 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain" and effusion into the joint for the period from September 27, 2011 to May 23, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Such is based on the September 2011 examiner's finding of meniscus (semilunar cartilage) condition with frequent episodes of locking and joint pain. Such objective findings are inconsistent with the medical evidence of record prior to and subsequent to the September 2011 examination, however, affording the Veteran reasonable doubt the Board will assign a compensable rating in contemplation of such symptomatology. Most subsequent examination reports do not reflect objective findings of a meniscus condition nor frequent episodes of locking and joint pain associated with a meniscus condition- however, a meniscal condition, and reports of locking, were indicated in the 2019 examination report. Overall, then, there is some inconsistency in the record but the Board will resolve doubt and assign a 20 percent rating from September 27, 2011 onward. The Board notes that under Diagnostic Codes 5003 and 5010, where the limitation of motion shown is not sufficient for a compensable disability rating, the highest rating for a single major joint such as a knee based on evidence of arthritis is 10 percent. 38 C.F.R. § 4.71a. A higher rating requires evidence of compensable limitation of motion. In the Veteran's case, although both knee ratings are characterized as degenerative joint disease or osteoarthritis, limitation of motion is the primary consideration. Based on the evidence discussed above, the Board finds the following with regard to the right knee: At no point during the rating period has the Veteran's right knee instability been characterized as severe. While the Veteran asserted in June 2018 that his right knee instability was severe in nature, all of the VA examinations indicated that on objective testing the instability was mild. The Board notes that there is no quantifiable measurement given for the rating criteria of mild, moderate, and severe. However, stability testing on examination includes classifications of normal, 1+ (0-5 millimeters), 2+ (5-10 millimeters), and 3+ (10-15 millimeters). The Veteran's instability was measured as 1+ (0-5 millimeters), the lowest measurement of instability provided, indicating that it was mild in nature. In addition, VA examiners have selected "moderate" at most as the level of recurrent subluxation with respect to the Veteran's knees. As a result, the Board finds that moderate is the most appropriate characterization of the Veteran's right knee instability or recurrent subluxation, and the assigned 20 percent rating is appropriate under the pre-February 7, 2021 Diagnostic Code 5257. A rating in excess of 20 percent is also not warranted for instability in contemplation of the amended rating criteria effective February 7, 2021. A 30 percent disability rating is not warranted as the objective medical of evidence of record does not show unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation; nor 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. With respect to range of motion findings, at the March 2011 VA examination, the Veteran's right knee range of motion satisfies the criteria for a 10 percent disability rating under Diagnostic Code 5261, for limitation of extension. At the September 2011 VA examination, the evidence did not show any limitation of motion; however, the 10 percent disability rating would still be appropriate based on X-ray evidence of arthritis and painful motion. At the May 2014 VA examination, the Veteran's range of motion testing would not support assignment of a rating for limitation of motion, although the Veteran did report pain at 40 degrees of flexion. The April 2016 VA examination findings showed limitation of flexion to 55 degrees on repetitive motion, which would not meet the criteria for a compensable rating, and full extension. At the August 2017 VA examination, the Veteran had full extension and flexion to 60 degrees, neither of which meet the criteria for a compensable rating based on limitation of motion. At the October 2019 VA examination, the Veteran's right knee had limitation of extension that would merit a 10 percent rating under Diagnostic Code 5261, but a compensable limitation of flexion was not shown. As outlined above, the evidence shows that the Veteran's right knee disability did not meet the criteria for a disability rating in excess of 10 percent at any point; 10 percent is warranted based on limited extension. For the points at which noncompensable limitation of extension was demonstrated, the 10 percent rating would still be warranted based on painful motion and X-ray evidence of arthritis. The Board acknowledges the May 2014 findings of painful motion at 40 degrees which, if taken as the limit of the Veteran's flexion would warrant a 20 percent disability rating. However, the Board finds that such a rating is not warranted, as 40 degrees was the point of onset of pain, but the demonstrated range of motion at that examination was twice that (80 degrees) even on repetitive motion or as estimated during a flare-up. Indeed, it is loss of functionality that is the primary concern, and here the loss of function is not commensurate with the next-higher rating here. Therefore, the Board does not find a higher rating appropriate for that time period. Finally, as there is no showing of both loss of flexion and extension to a compensable degree, separate ratings for each pursuant to VAOPGCPREC 9-2004 is not for application. Left knee Initially, the Board notes that pursuant to Diagnostic Code 5258, a separate 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain" and effusion into the joint for the period from September 27, 2011 to May 23, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Such is based on the September 2011 examiner's finding of meniscus (semilunar cartilage) condition with frequent episodes of locking and joint pain. Such objective findings are inconsistent with the medical evidence of record prior to and subsequent to the September 2011 examination, however, affording the Veteran reasonable doubt the Board will assign a compensable rating in contemplation of such symptomatology. Subsequent examination reports, to generally do not reflect objective findings of a meniscus condition nor frequent episodes of locking and joint pain associated with a meniscus condition; however, the examiner in 2019 did note a meniscal condition and also noted reports of locking causing the Veteran to install a railing in his home. Thus, resolving doubt, once in effect, the 20 percent evaluation shall remain intact under Diagnostic Code 5258. Based on the evidence discussed above, the Board finds the following with regard to the left knee: At no point during the ratings period has the Veteran's left knee instability been characterized as severe. Indeed, despite specifically asserting severe instability in the right knee, the Veteran has not made similar assertions with respect to the left knee. At all of the VA examinations, on objective testing the instability was mild or moderate. The Board notes that there is no quantifiable measurement given for the rating criteria of mild, moderate, and severe. However, stability testing on examination includes classifications of normal, 1+ (0-5 millimeters), 2+ (5-10 millimeters), and 3+ (10-15 millimeters). The Veteran's instability was measured as 1+ (0-5 millimeters), the lowest measurement of instability provided, indicating that it was mild in nature. In addition, VA examiners have selected "moderate" at most as the level of recurrent subluxation with respect to the Veteran's knees. As a result, the Board finds that moderate is the most appropriate characterization of the Veteran's left knee instability or recurrent subluxation, and the assigned 20 percent rating is appropriate under the pre-February 7, 2021 Diagnostic Code 5257. A rating in excess of 20 percent is not warranted for instability in contemplation of the amended rating criteria effective February 7, 2021. A 30 percent disability rating is not warranted as the objective medical of evidence of record does not show unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation; nor 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. With respect to the rating for limitation of motion, at the March 2011 VA examination, the Veteran's range of motion findings were not sufficient to justify a compensable rating except under Diagnostic Code 5010 for X-ray evidence of arthritis. At both the September 2011 and May 2012 VA examinations, the findings were likewise not sufficient to justify a compensable rating based on limitation of flexion or extension. At the May 2014 VA examination, the Veteran's range of motion was also noncompensable, although he had pain on flexion at 50 degrees. Notes from physical therapy treatment in July 2016 showed the first evidence of compensable limitation of motion in the Veteran's left knee, with extension to 15 degrees, consistent with the assigned 20 percent rating. VA examinations conducted since that date, in August 2017 and October 2019 show the same limitation of motion findings of noncompensable limitation of flexion and limitation of extension, which merits a 20 percent disability rating. As a result, the Board finds that a disability rating of greater than 20 percent has not been warranted for the Veteran's left knee limitation of motion due to degenerative joint disease at any point during the appeals period. Finally, as there is no showing of both loss of flexion and extension to a compensable degree, separate ratings for each pursuant to VAOPGCPREC 9-2004 is not for application. In light of the discussion above, the Board finds that the evidence does not support an increased rating for instability in either knee or for limitation of motion due to degenerative joint disease in either knee, however, separate ratings are warranted per Diagnostic Code 5258 for the right and left knees for the period from September 27, 2011 to May 23, 2012. Entitlement to a TDIU Examination reports of record reflect limitations the Veteran would experience in an occupational capacity. Thus, the Board will take jurisdiction of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Service connection is in effect for degenerative arthritis of the lumbar spine with spinal stenosis (20% 10/22/2012; 40% 10/24/2014; 100% 03/01/2016; 40% 04/01/2016); residuals, total left hip replacement (100% 12/04/2007; 30% 06/01/2008); medial collateral ligament instability of the right knee (20% 09/18/2003); osteoarthritis, left knee (10% 12/04/2007; 20% 05/06/2011); radiculopathy, right lower extremity (20% 10/22/2012); radiculopathy, left lower extremity (20% 10/22/2012); instability of the left knee (20% 08/21/2017); degenerative joint disease, right knee (10% 09/18/2003); meniscal condition, right knee (20% 09/27/11-05/23/12); and, meniscal condition, left knee (20% 09/27/11-05/23/12). Thus, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) are met for the entire period contemplated by this appeal. The Board has determined that a TDIU is warranted effective May 6, 2010, as the evidence of record supports a finding that the Veteran has been unemployed since prior to that time. Specifically, the Veteran was employed until in or about 1991 doing Quality Control for Corning. The September 2011 examination reflects that his disabilities of the knees impact his ability to work as he has increased pain with ambulation and increased pain with position change. A May 2012 examination reflects that his disabilities of the knees impact his ability to work as he would not be able to do work that involves hiking or walking. He is unable to go up downstairs without a railing. He is unable to stand up after doing a squatting position. A December 2013 examination pertaining to the lumbar spine and associated radiculopathy reflects the examiner's opinion that his pain even at rest prevents any gainful employment either sedentary or active. A May 2014 examination reflects that the Veteran cannot walk further than 100 feet without stopping to rest and can only walk on uneven ground for short distances very slowly. He cannot walk any distance without a support (cart in store or cane), he cannot ride a bike, cannot run any distance, he can no longer bowl or golf at all. He can only drive an automatic shift vehicle and utilizes cruise control as much as possible. He can perform sedentary work such as keyboarding, phone or other office functions for about 15 minutes as long as he can readjust to spread the pressure around lower extremities. An April 2015 examiner opined that due to his lumbar spine and associated radiculopathy the Veteran is unable to do significant lifting, pushing, sitting or walking and is thus not capable of any gainful employment. An April 2016 examiner opined that due to his disabilities of the knees any employment requiring prolonged walking, kneeling, or stair climbing would be problematic for the Veteran. An August 2017 examiner found that the Veteran cannot perform arduous/unlimited work that involves several hours without rest and frequent knee flexion/extension, he can perform light office type work for a short stints if he can elevate his legs and reposition frequently. Because of the degenerative joint changes in both knees he has limited strength and flexibility that is required to be able to perform the functional requirements of a 911 dispatch coordinator. He cannot climb up and down stairs easily nor kneel/squat which is part of the functional requirements for that position. He cannot perform light office type work such as keyboarding and phone work for prolonged periods of time. Affording the Veteran the benefit of the doubt, the Board finds evidentiary support to conclude that his service-connected disabilities preclude substantially gainful employment from May 6, 2010, which corresponds to the one-year period prior to receipt of his increased rating claim. The combined effect of his lumbar spine disability, radiculopathy, and bilateral knee disabilities affects his ability to maintain gainful employment, as he is unable to consistently function in an industrial capacity with others due to his symptomology. The evidence of record establishes that the Veteran would be unable to maintain gainful employment due to the symptomatology associated with his service-connected disabilities. Thus, for the above reasons, entitlement to a TDIU is granted from May 6, 2010. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.