Citation Nr: 21074960 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-12 695 DATE: December 16, 2021 ORDER 1. Entitlement to a rating in excess of 30 percent (under Code 5257) for the Veteran's right knee disability prior to May 21, 2015 is denied; from May 21, 2015 to November 10, 2017, a combined 40 percent (30 percent under Code 5257 and 10 percent under Code 5003), but no higher, rating is granted; from November 10, 2017 to October 4, 2021, a rating in excess of 40 percent under Code 5261 is denied; from October 4, 2021, a combined 60 percent (40 percent under Code 5261, 20 percent under Code 5257 and 20 percent under Code 5258), but no higher, rating is granted; grants subject to regulations governing payment of monetary awards. 2. Entitlement to a rating in excess of 20 percent for a low back disability is denied. 3. Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. REMANDED 4. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 21, 2015, the Veteran's right knee disability was manifested by severe subluxation or instability, but dislocated semilunar cartilage and arthritis with painful motion of compensable limitations of flexion or extension were not shown; from May 21, 2015 to November 10, 2017, the disability is shown to have been manifested by severe subluxation or instability and arthritis with painful motion, but symptoms of dislocated semilunar cartilage, were not shown; from November 10, 2017 to October 4, 2021, the disability was manifested by extension limited at 40 degrees, but subluxation or instability, limitation of flexion, and symptoms of dislocated semilunar cartilage were not shown; from October 4, 2021 knee disability is reasonably shown to have been manifested by limitation of extension at 40 degrees, dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint, and by unrepaired or failed repair of complete ligament tear causing persistent instability that requires a prescribed assistive device or bracing for ambulation; it is not shown to have been manifested by compensable limitation of flexion or removal of semilunar cartilage, symptomatic. 2. The Veteran's low back disability is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or by ankylosis of the thoracolumbar spine; separately ratable neurological manifestations are not shown. 3. The Veteran's left ankle disability is not shown to have been manifested by marked (more than moderate) limitation of motion. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for the Veteran's right knee disability (under Code 5257) is not warranted prior to May 21, 2015; from that date to November 10, 2017, a combined 40 percent (30 percent under Code 5257 and 10 percent under Code 5003), but no higher, rating is warranted; from November 10, 2017 to October 4, 2021, a rating in excess of 40 percent under Code 5261 is not warranted; from October 4, 2021, a combined 60 percent (40 percent under Code 5261, 20 percent under Code 5257 and 20 percent under Code 5258), but no higher, rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.59, 4.71a; Diagnostic Codes (Codes) 5003, 5257, 5258, 5261. 2. A rating in excess of 20 percent for a low back disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.21, 4.71a, Code 5237. 3. A rating in excess of 10 percent for a left ankle disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1960 to September 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. In August 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. In February 2017, the case was remanded for further development. An interim (January 2018) rating decision increased the rating for a right knee disability to 40 percent, effective November 10, 2017, due to limited and painful extension. The right knee had formerly been rated under Code 5257 for instability. [A July 2018 rating decision granted service connection for bilateral hearing loss and tinnitus. A July 2020 Board decision granted service connection for bilateral pes planus, and a July 2020 rating decision implemented the Board's decision. Accordingly, those matters are no longer before the Board.] Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, (as is the case with the low back, bilateral knee, and left ankle claims) the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed the instant claim for increase on April 14, 2011. Consequently, the evaluation period begins April 14, 2010, one year prior. 1. Entitlement to a rating in excess of 30 percent for the Veteran's right knee disability (under Code 5257) prior to May 21, 2015 is denied; from that date to November 10, 2017, a combined 40 percent (30 percent under Code 5257 and 10 percent under Code 5003) rating is granted; from November 10, 2017 to October 4, 2021, entitlement to a rating in excess of 40 percent under Code 5261 is denied; from October 4, 2021, a combined 60 percent (40 percent under Code 5261, 20 percent under Code 5257 and 20 percent under Code 5258) rating is granted. The criteria for rating knee disabilities are found in Codes 5256 to 5263. Code 5256 provides for ratings from 30 to 60 percent for ankylosis of a knee. Under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Code 5258 provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5259, a 10 percent rating is warranted for cartilage, semilunar, removal of, symptomatic. Under Code 5260, limitation of knee flexion to 60 degrees or more warrants a 0 percent rating, to 45 degrees warrants a 10 percent rating, to 30 degrees warrants a 20 percent rating, and to 15 degrees warrants a 30 percent rating. Under Code 5261, limitation of knee extension to 5 degrees warrants a 0 percent rating, to 10 degrees warrants a 10 percent rating, to 15 degrees warrants a 20 percent rating, to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating, and to 45 degrees warrants a 50 percent rating. Code 5262 provides for ratings for impairment due to malunion or nonunion of the tibia and fibula. Code 5263 provides for a 10 percent rating for acquired (traumatic) genu recurvatum. 38 C.F.R. § 4.71a. During the pendency of the appeal, the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from that date, and the criteria more favorable to the Veteran will be applied. Prior to the regulatory change, under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. From February 7, 2021, under the amended criteria for Code 5257, the "severe," "moderate," and "slight" language was removed, and a rating was added for patellar instability. For recurrent subluxation or lateral instability, a 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability: and that a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating requires (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability. Both require a prescribed assistive device or bracing for ambulation. A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. Under Code 5010, which refers to arthritis, due to trauma, substantiated by X-ray findings, the disability is rated as degenerative arthritis under Code 5003. Under Code 5003, degenerative arthritis is rated on the basis of limitation of motion under the appropriate Code for the specific joint involved. When, limitation of motion of the specific joint involved is noncompensable under the appropriate Code, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under 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 but X-ray involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present as well as occasional incapacitating exacerbations. Code 5003 indicates these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. In addition, these ratings will not be utilized in rating conditions listed under Codes 5013 to 5024, inclusive. [Codes 5256, 5259, 5262, and 5263 have no applicability in this matter, as the pathology or manifestations in the rating criteria under those Codes (ankylosis, removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum) are not shown. 38 C.F.R. § 4.71a.] On June 2011 VA examination, the Veteran reported difficulty climbing and descending stairs, that he took anti-inflammatory pills, and that he used a cane when ambulating long distances. On right knee examination, multiple incisions were noted, and there was no gross instability of the medial collateral ligament. There was some moderate crepitus with active flexion and extension, but no effusion. Right knee ROM testing showed flexion to 120 degrees with stiffness at 120 degrees, and extension to 0 degrees. Active ROM, passive ROM, and ROM during repetitive motion testing were the same. There was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare ups. Muscle strength was 5/5 for flexion and extension. There was genu valgus of approximately 7 degrees bilaterally. The Veteran could walk on heels and toes without difficulty. There was no subluxation or instability. Mild right knee arthritis was diagnosed. A July 2014 VA treatment record notes that the Veteran reported difficulty with ambulation, prolonged sitting and standing, and climbing and descending stairs, and activities of daily living (ADLs) such as standing in one place to cook a meal. On May 2015 VA knee examination, right knee meniscal tear was diagnosed based on evidence of record. The Veteran reported he had no right knee flare-ups and regularly used a cane. Right knee ROM testing showed flexion to 120 degrees and extension to 0 degrees, with pain noted on examination that did not result in functional loss. There was no pain with weight-bearing, no pain on palpation of the right knee joint, and no crepitus. The Veteran could perform repetitive use testing with no additional functional or ROM loss. It was noted that the Veteran was not examined immediately after repetitive use over time, and that the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. There was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner also indicated that there was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time. Muscle strength testing was normal, and ankylosis was not shown. Right knee joint stability testing was normal, and subluxation or lateral instability was not shown. There was some history of recurrent effusion. The examiner noted that the Veteran underwent a procedure to repair a right knee meniscal tear, and no other (current) symptoms were noted. Right knee X-rays showed arthritis. A July 2015 VA treatment record notes that the Veteran reported bilateral knee pain of 4/10 severity. A March 2016 DRO decision, in part, proposed that the rating for the Veteran's right knee disability, currently rated 30 percent for instability, be reduced to 10 percent. A March 2016 VA treatment record notes that the Veteran ambulated independently with the use of a walking stick, he was issued a knee sleeve, and he would benefit from the knee brace to facilitate pain reduction. An October 2017 VA treatment record notes that the Veteran ambulates with the use of a walker and reported pain of 7/10 severity in his knees. On November 2017 knee examination, right meniscal tear, right patellar or quadriceps tendon rupture, and knee instability were diagnosed. The Veteran reported that his right lower leg had become weaker, that he had difficulty walking and climbing stairs, that he sometimes fell, and that he took Naproxen and Tylenol for pain. He reported severe right knee flare-ups that occurred weekly and lasted approximately one hour, and that he used a cane for ambulation. Right knee ROM testing showed flexion from 40 to 90 degrees and extension from 90 to 40 degrees. It was noted that the ROM contributed to functional loss, and that pain was noted on flexion and extension and with weight-bearing, non-weight-bearing, and passive motion. There was no pain on palpation of the right knee. There was evidence of crepitus, and the right calf muscle was slightly atrophied. The Veteran could perform repetitive use testing with no additional loss of function or ROM. The examiner noted that the Veteran was not being examined immediately after repeated use over time or during a flare-up and opined that the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time or during a flare-up. Regarding whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up, the examiner stated that he must resort to speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Muscle strength testing showed right knee flexion was 2/5 and extension 2/5. No ankylosis was shown, and there was no recurrent effusion. Right knee joint stability testing was normal, and there was not right knee recurrent subluxation or lateral instability. The examiner noted that the Veteran had undergone a procedure to repair a right knee meniscal tear and that there were no other current symptoms related to that procedure. A right knee scar measured 40 cm x 1 cm. Right knee X-rays showed degenerative arthritis. Regarding functional impact, the Veteran reported that he lost more than 5 weeks' time in the last 12 months due to his disabilities. He works as a barber instructor and can no longer stand all day. A January 2018 rating decision notes that a May 2015 rating decision proposed to reduce the 30 percent rating for the Veteran's service-connected right knee disability, which had previously been established based on findings of severe instability of the knee, to 10 percent, based on findings on the May 19, 2015, VA examination, that there was no instability of the knee. A subsequent review examination on November 10, 2017, confirmed there was no instability of the knee; however, the examination showed limitation of extension of the knee at 40 degrees, with pain on motion, warranting a 40 percent rating. Therefore, the rating decision increased the rating for a right knee disability to 40 percent, effective November 10, 2017, due to limited and painful extension. On June 2018 VA knee examination, right knee instability and degenerative arthritis were diagnosed. The Veteran reported persistent knee pain, that he experienced periodic flare-ups with ambulation, and that he used a walker on a regular basis. He reported no functional loss or impairment, including but not limited to repeated use over time. ROM testing showed right knee flexion to 90 degrees and extension to 0 degrees, and it was noted that the ROM (which was exhibited by the loss of ROM) contributed to functional loss. Pain was noted on examination that caused functional loss, but no pain was noted with weight-bearing, in non-weight-bearing, and on passive motion. There was no pain on palpation of the right knee joint, and no crepitus. The Veteran could perform repetitive use testing with no additional functional or ROM loss. It was noted that he was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. Muscle strength testing was normal, there was no muscle atrophy, and there was no ankylosis. Right knee joint stability testing was normal. It was noted that the Veteran had a history of right knee meniscal surgery, with no residuals noted. Right knee X-rays showed degenerative arthritis. The examiner opined that the Veteran could perform sedentary desk work. On October 2021 VA knee examination, right knee arthritis was diagnosed. The Veteran reported that he has experienced pain, weakness, swelling, instability, and locking in his right knee since his knee surgery in service. He reported daily right knee pain of 7/10, weakness, inability to climb up and descend stairs, swelling, an uncoordinated gait, and instability, as well as full-time use of a walker inside the house and full-time use of a wheelchair for any activity outside the house. Regarding right knee flare-ups, he related that on humid days (several days a month), the pain will worsen to 10/10 and last for 24 hours per episode. He described the knee pain as sharp and throbbing, and related that during flare-us he was unable to walk and required assistance with movement. He reported right knee instability, that his knee will periodically pop, and that his right knee will not "hold up" when he puts his full weight on it, and also reported constant right knee swelling or effusion. Right knee ROM testing showed flexion to 105 degrees and extension to 0 degrees. The ROM did not contribute to functional loss. Pain was noted on flexion and extension, and there was evidence of pain that did not result in functional loss on weight-bearing, active motion, and passive motion. There was no pain on non-weight-bearing. There was crepitus and pain on palpation to the medial hamstring region. The Veteran was able to perform repetitive use testing with no additional loss of function or ROM. The examiner noted that the Veteran was being tested immediately after repeated use over time and that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time. The estimated right knee ROM after repeated use over time was flexion to 105 degrees and extension to 0 degrees. The examiner indicated that the examination was being conducted during a flare-up and that pain, fatigability, weakness caused functional loss during a flare-up. The estimated ROM during flare-ups was flexion to 105 degrees and extension to 0 degrees. Right knee extension strength was 4/5, and flexion was 3/5. Right knee tests for instability were positive for anterior instability (grade 1 Lachman at 30 degrees, grade 1 anterior drawer at 90 degrees, and grade 1 pivot shift); there was no posterior instability at 30 and 90 degrees, no medial instability at 0 and 30 degrees, and no lateral instability at 0 and 30 degrees. Muscle atrophy of the right lower extremity was noted. There was no ankylosis. Right knee recurrent subluxation or persistent instability was shown. A complete ligament tear was shown; it was noted that a complete tear repair had failed, and that the disability had required a prescription for a cane and walker. There was no recurrent patellar instability. A right knee meniscal cartilage disorder (a meniscal tear) was noted, along with frequent episodes of locking, joint pain, and joint effusion. The examiner indicated that the Veteran underwent a procedure to repair a medial meniscus tear and open meniscectomy in 1965, and he has reported daily subjective locking, joint pain, and permanent swelling since then. Regarding functional impact, the Veteran reported 0-1 week of time lost at work in the past 12 months and that he can no longer stand on his own without a walker or wheelchair and therefore cannot perform the duties of a barber or barber instructor, which include standing, walking, and cleaning. The examiner indicated that the new diagnosis (post-traumatic arthritis, right knee) was a more accurate diagnosis of the Veteran's actual right knee disorder, and that the new diagnosis is a consequence (progression) of the meniscectomy that the Veteran underwent in 1965. Prior to May 21, 2015, the Veteran's right knee instability has been assigned the maximum schedular rating available (30 percent) for knee instability under 38 C.F.R. §4.71A, Code 5257, and a higher schedular rating for right knee instability is not warranted. The Board has considered whether referral of the claim for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Here, the Board's inquiry does not have to go beyond the first step because the Veteran's right knee instability is not shown (or alleged) to have manifestations or cause impairment not encompassed by the schedular criteria. Notably, on June 2011 examination, there was no gross instability of the medial collateral ligament, and no subluxation or instability was shown. Prior to May 21, 2015, the level of right knee severity more closely approximated the criteria for a 10 percent rating than a 30 percent rating. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary. Consequently, to warrant a higher combined rating the evidence must show arthritis with limitation of motion under Code 5003, limitation of flexion of a knee, limitation of extension of a knee, or dislocated semilunar cartilage. (Other diagnostic codes for rating knee disability do not apply as the pathology or symptoms required are not shown prior to May 21, 2015.) The evidence of record does not show that at any time prior to May 21, 2015, any of the criteria which would allow for a further increase in the combined rating (by allowing for another separate rating for combination with the ratings already assigned) were met (or approximated). Compensable limitations of flexion and extension were not reported at any time when ranges of motion were/could be measured. On June 2011 examination, the examiner noted previous right knee ligament surgery, but found there was no joint effusion. Right knee ROM testing showed flexion to 120 degrees with stiffness at 120 degrees, and extension to 0 degrees. Right knee X-rays showed arthritis, but painful motion due to the arthritis was not noted on examination. Therefore, prior to May 21, 2015, the record does not show any functional limitations beyond those encompassed by the assigned 30 percent (maximum for instability) rating for the right knee From May 21, 2015 to November 10, 2017, the Board finds that a combined (40 percent) rating is warranted. From the May 21, 2015 date of a VA examination (but not earlier) the service-connected right knee disability is shown to include arthritis (with painful motion), a manifestations separate and distinct from the criteria under Code 5257. Under Code 5003, such manifestation warrants a 10 percent rating, which, combined with the 30 percent rating under Code 5257, results in a combined rating of 40 percent, effective from the May 21, 2015 examination date. See 38 C.F.R. § 4.25. What remains for consideration is whether a separate rating under Code 5258 is warranted from May 21, 2015 to November 10, 2017. On May 2015 examination, right knee meniscal tear was diagnosed based on evidence of record, and some history of recurrent effusion. However, although the examiner noted that the Veteran underwent a procedure to repair a right knee meniscal tear, no other (current) symptoms or other residuals (such as locking and pain) were noted other than possibly the effusion noted above. Therefore, from May 21, 2015 to November 10, 2017, the record does not reflect any functional limitations beyond those encompassed by the 40 percent combined rating (under Codes 5003 and 5257) for the right knee disability. From November 10, 2017, the Veteran's right knee disability has been assigned a 40 percent rating for limitation of extension under 38 C.F.R. §4.71A, Code 5261. To warrant increase in such rating, the evidence would have to show knee extension limited at 45 degrees. The evidence of record does not show that from November 10, 2017 such criterion was met for the right knee. At no time from November 10, 2017 is right knee extension shown to have been limited to 45 degrees. On November 2017 examination, right knee extension was from 90 to 40 degrees, and on June 2018 and October 2021 examinations, right knee extension was to 0 degrees. No other VA treatment records from November 10, 2017 note right knee extension limited to (or even closely approximating) 45 degrees. As the 40 percent rating assigned for right knee limitation of extension encompasses the greatest degree of severity of extension impairment shown at any time during the period, a rating in excess of 40 percent (for right knee extension) is not warranted. [The Board notes that the 10 percent rating assigned under 5003 for painful motion due to arthritis is replaced by the 40 percent rating assigned for right knee extension, as combination of such ratings is expressly prohibited.] The Board must still consider if any separate compensable ratings are warranted. To warrant a higher combined rating, the evidence must show compensable limitation of flexion of a knee, recurrent subluxation or lateral instability, or dislocated semilunar cartilage. (Other diagnostic codes for rating knee disability do not apply as the pathology or symptoms required are not shown from November 10, 2017.) The evidence of record does not show that at any time from November 10, 2017 (when motion was/could be measured), compensable limitation of flexion was found. However, on October 2021 VA examination, the Veteran reported right knee instability, that his knee will periodically pop, and that his right knee will not "hold up" when he puts his full weight on it. He also reported constant right knee swelling or effusion. Right knee recurrent subluxation or persistent instability was shown. A complete ligament tear was shown, it was noted that a complete tear repair failed, and such disorder required a prescription for a cane and walker. Therefore, a 20 percent rating for right knee instability under Code 5257 is warranted from October 4, 2021 (effective February 7, 2021) (which was found to be more favorable to the Veteran). Additionally, on October 2021 VA examination, the examiner indicated that the Veteran underwent a procedure to repair a medial meniscus tear and open meniscectomy in 1965, and he has reported daily subjective locking, joint pain, and permanent swelling since that time. A right knee meniscal cartilage disorder (a meniscal tear) was shown, and frequent episodes of locking, joint pain, and joint effusion were noted. The Board has considered the applicability of Code 5258 and finds that from October 4, 2021, the Veteran's right knee disability is reasonably shown to have been manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Board notes the report of right meniscal tear on prior examination; however, as noted above, the additional criteria needed for the rating under Code 5258, namely locking and pain, were not both present with effusion into the joint until the October 2021 examination. Accordingly, the Board finds that a 20 percent, but no higher, rating is warranted from October 4, 2021 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Code 5258. Therefore, from October 4, 2021, a combined 60 percent rating is warranted under Codes 5261, 5257, and 5258. 2. Entitlement to a rating in excess of 20 percent for a low back disability is denied. The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, Code 5237 for low back strain. The General Formula provides for: a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 40 percent rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Codes 5242-5235. Pertinent Notes following include: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. The Veteran's disability is currently rated under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not revised. 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. The Board notes that Intervertebral disc syndrome (IVDS) has not been diagnosed with, and therefore no further discussion of IVDS is necessary. On June 2011 VA examination, the Veteran reported that he used a cane to ambulate long distances. On examination, his gait was normal, and it was noted that he did not walk with a significant limp or lurch. Muscle strength testing showed 5/5 strength of the quads and hamstrings. Lachman's and Murray's testing were negative bilaterally. Lumbar spine ROM testing showed forward flexion to 60 degrees with pain at 60 degrees and extension to 10 degrees with pain at 10 degrees. Lateral bending and rotation were 0 to 30 degrees without painful limitation. The Veteran reported decreased sensation in his right lower extremity. The examiner indicated that ROM testing was the same during passive motion, active motion, and repetition motion. There was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare ups. The examiner indicated that there was no radiation of pain or neurological findings that impacted the Veteran's daily activity, and he reported no bladder or bowel complaints. Low back strain was diagnosed, and X-rays showed L2-L4 vertebral spondylosis. An August 2014 VA treatment record notes that the Veteran was compliant with attending physical therapy sessions and performing his home exercise program. He reported lower back pain that limited prolonged sitting and standing. On October 2015 VA back examination, lumbar spine degenerative disc disease (DDD) was diagnosed. The Veteran reported constant back pain that worsened with prolonged sitting and regular use of a cane for ambulation. He reported no flare-ups and no functional impact regardless of repetitive use. Lumbar spine ROM testing showed flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Pain was noted on examination, to include on weight-bearing, that did not result in functional loss. There was no pain on palpation of the lumbar spine. The Veteran was able to perform repetitive testing with no additional loss of function or ROM after 3 repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time or during a flare-up but opined that the examination was neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time or during a flare-up. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. No guarding or muscle spasm was shown, muscle strength testing was normal, and there was no muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising tests were negative, and there were no signs or symptoms of radiculopathy. No ankylosis was shown, and the Veteran reported no neurologic abnormalities. IVDS was not shown. X-rays showed arthritis, but no thoracic vertebral fracture with loss of 50 percent or more of height was shown. The examiner opined regarding functional impact, that the Veteran should not engage in heavy physical work and that his lumbar spine disability was mild. On October 2015 VA general examination, the Veteran reported that he could not do physical work, in part, due to his back pain; the provider opined that the Veteran could perform sedentary work that did not involve bending, kneeling, climbing ladders, or lifting objects that weighed more than 20 pounds. On June 2018 VA spine examination, lumbosacral strain was diagnosed. The Veteran reported persistent low back pain, flare-ups, and constant use of a walker for ambulation. Lumbar spine ROM testing showed forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. ROM did not contribute to functional loss, and although pain was noted on examination it did not result in functional loss. There was no pain with weight-bearing, on passive ROM or in non-weight-bearing, and no pain on palpation of the lumbar spine; the Veteran was able to perform repetitive use testing with no additional loss of function or ROM. The examiner indicated that the Veteran was not examined immediately after repetitive use over time or during a flare-up, but that the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time or during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm, and muscle strength testing was normal. Reflex and sensory examinations were normal, and straight leg raising was negative bilaterally. There were no signs or symptoms due to radiculopathy. Ankylosis was not shown, neurologic abnormalities were not shown, and IVDS was not shown. The examiner opined that the Veteran was able to do sedentary desk work. During the period on appeal, the Veteran's low back disability has been assigned a 20 percent rating. The evidence does not show that symptoms were of (or approximated) such nature as to warrant a rating in excess of 20 percent. The next higher (40 percent) rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or there is ankylosis of the thoracolumbar spine. Such findings were not noted at any time during the period on appeal. Furthermore, it is not shown that the Veteran had any functional loss beyond that already compensated. On June 2011 VA examination, ROM testing showed forward flexion to 60 degrees with pain at 60 degrees. On October 2015 VA examination, ROM testing showed flexion to 80 degrees, and although pain was noted on examination, to include on weight-bearing, such did not result in functional loss. On June 2018 examination, ROM testing showed forward flexion to 60 degrees, and the ROM did not contribute to functional loss. Although pain was noted on examination it did not result in functional loss, and there was no pain with weight-bearing, on passive ROM or in non-weight-bearing. Although the October 2015 and June 2018 examiners indicated that the Veteran was not being examined immediately after repetitive use over time or during a flareup and opined that the examinations were neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time or during flare-ups, it is noteworthy that the Veteran was able to perform repetitive use testing with no additional loss of function or ROM. Regardless, the Veteran's reports of flare-ups (on June 2018 examination) do not identify any distinct periods when symptoms and impairment rose to a level warranting a staged higher rating (they suggest infrequent episodes of such limitations-not resulting in sufficient additional disability to seek medical attention). As the 20 percent rating assigned encompasses the greatest degree of severity of low back disability shown at any time during the period, a rating in excess of 20 percent is not warranted. The Board notes that separately ratable neurological manifestations (to include lower extremity radiculopathy) were not shown. 3. Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. The Veteran's service-connected left ankle disability is currently rated 10 percent under 38 C.F.R. § 4.71a, Code 5271. As noted above, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. Prior to the regulatory change, under Code 5271, a 20 percent rating is warranted for arthritis of the ankle when there is marked limitation of ankle motion. When limitation of ankle motion is moderate, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, Code 5271. From February 7, 2021, under the amended criteria for Code 5271, a 20 percent rating is warranted when the ankle motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. A 10 percent rating is warranted when ankle motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Normal ankle movement is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Under Code 5270, a 20 percent and higher ratings are warranted for ankylosis of the ankle, depending on the angle/position of ankylosis. 38 C.F.R. § 4.71a. Other codes for ankle disabilities (Codes 5272, 5273, and 5274) do not provide for ratings in excess of 20 percent and require pathology not shown here, i.e., ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. On June 2011 VA examination, the Veteran reported difficulty negotiating stairs, use of a cane for ambulating long distances, and had ankle pain that was localized to the medial aspect of his left ankle. Mild left ankle arthritis was diagnosed. On October 2015 VA ankle examination, left ankle strain was diagnosed. The Veteran reported constant left ankle pain that worsened with cold weather or changes in barometric pressure. He related that he could walk one block and experienced no left ankle flare-ups. Left ankle range of motion (ROM) testing showed dorsiflexion to 20 degrees and plantar flexion to 45 degrees (which is normal ROM for the ankle). No pain was noted on examination, and there was no pain with weight-bearing. There was no pain on palpation, and no crepitus. The Veteran could perform repetitive use testing with no loss of function or ROM after testing. He was not examined after repetitive use over time; the examiner opined that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, and incoordination did not significantly limit his functional ability with repeated use over time. The Veteran reported regular use of a cane and some difficulty with prolonged walking, sitting, and standing. Muscle testing was normal; there was no atrophy, ankylosis, instability, or dislocation. The provider opined that the current left ankle disability was mild. An October 2017 VA treatment record notes that the Veteran used a walker for ambulation, and his gait was steady. He reported ankle pain of 7/10. On November 2018 VA ankle examination, left ankle strain was diagnosed. The Veteran reported left ankle pain and that flare-ups occurred with changes in the weather and prolonged standing and/or walking. Left ankle ROM testing showed dorsiflexion to 20 degrees and plantar flexion to 35 degrees. It was noted that left ankle ROM contributed to functional loss which consisted of pain and stiffness on bending. There was evidence of pain with weight-bearing but no evidence of pain on passive ROM testing or when the joint was used in non-weight-bearing. There was no objective evidence of pain on palpation, but there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or ROM. The examiner indicated that he was not being examined immediately after repetitive use over time or during a flareup and opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. Muscle strength testing was normal, and no muscle atrophy was shown. There was no ankylosis and no joint instability. The examiner noted the presence of some soft tissue swelling and a left ankle plantar calcaneal spur. Regarding functional impact, the examiner opined that the Veteran could not perform job tasks that included climbing ladders or stairs, or involved prolonged standing or walking, and he further opined that the severity of the Veteran's left ankle disability was mild to moderate. VA examination reports, VA treatment records, and lay statements, overall, do not show that at any time for consideration, the Veteran's left ankle disability was manifested by marked limited motion so as to meet, or approximate, the criteria for a 20 percent rating. On October 2015 VA examination, ROM testing showed left ankle dorsiflexion to 20 degrees and plantar flexion to 45 degrees, which is normal. Pain on examination was not noted, and muscle atrophy or ankylosis was not shown. The disability picture presented does not reflect or suggest marked limitation of motion. On November 2018 VA examination, the Veteran reported left ankle pain, and that he experienced flare-ups that occurred with changes in the weather and prolonged standing and/or walking. However, his reports do not identify any specific period when his ankle symptoms and impairment rose to the marked limitation level warranting a 20 percent rating. Left ankle ROM testing showed dorsiflexion to 20 degrees and plantar flexion to 35 degrees (normal ROM for dorsiflexion and more than midway through normal for plantar flexion, and not reflecting "marked" limitation). Although the November 2018 examiner indicated that the Veteran was not being examined immediately after repetitive use over time or during a flareup and opined that the examination was neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time or during flare-ups, it is noteworthy that the Veteran was able to perform repetitive use testing with no additional loss of function or ROM. Regardless, the Veteran's reports of flare-ups do not identify any distinct periods when symptoms and impairment rose to a level of marked limitation warranting a staged higher rating (they suggest infrequent episodes of such limitations-not resulting in sufficient disability to seek medical attention). Such evidence demonstrates no more than moderate limitation of right ankle motion. Therefore, a 20 percent rating under Code 5271 is not warranted. REASONS FOR REMAND 4. Entitlement to a rating in excess of 10 percent for a left knee disability. In February 2017, the Board remanded this claim for further development, including an examination to ascertain the current severity of the left knee disability, followed by issuance of a Supplemental Statement of the Case (SSOC). Following a November 2017 knee examination, a January 2018 rating decision increased the rating for a right knee disability to 40 percent for limited and painful extension, effective November 10, 2017. An October 2021 SSOC noted the November 2017 examination, and readjudicated entitlement to a rating in excess of 10 percent for the left knee disability; however, the SSOC did not address the findings on November 2017 examination regarding the left knee disability. On examination, left knee ROM testing showed extension from 90 to 40 degrees (the same ROM for the right knee for which an increase was granted in a January 2018 rating decision, thereby suggesting a rating increase for the left knee would also have been warranted) and such finding was not addressed in the left knee readjudication in the October 2021 SSOC. A remand for a fully adequate SSOC is necessary. 5. Entitlement to a TDIU rating. The claim of entitlement to TDIU is inextricably intertwined with the left knee increased rating claim being remanded (an increased rating for a left knee disability would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU claim must be deferred. The matters are REMANDED for the following: Review the record and readjudicate the left knee rating claim and claim of entitlement to a TDIU rating. If either, or both remain denied, issue an appropriate SSOC (that encompasses consideration of staged ratings for the left knee throughout the appeal period, specifically including the findings on November 2017 examination); afford the Veteran and his representative opportunity to respond; and if indicated return the case to the Board. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.