Citation Nr: 21075632 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 12-33 920 DATE: December 21, 2021 ORDER Entitlement to a disability rating of 20 percent, and no higher, under Diagnostic Code 5258, prior to August 18, 2012 (to exclude an award of a temporary total 100 percent disability rating based on convalescence from July 1, 2011 to September 1, 2011), for partial medial meniscectomy, left knee, s/p arthroscopic (knee disability), is granted. Entitlement to a disability rating in excess of 20 percent, under Diagnostic Code 5258, from August 18, 2012, for knee disability, is denied. Entitlement to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5257, from February 12, 2021, for knee disability, is granted. Entitlement to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5260, for knee painful motion, is granted. REMANDED Entitlement to an initial disability rating in excess of 20 percent for a right shoulder disability is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The competent evidence of record shows that throughout the appeal period, the Veteran's knee disability was manifested by dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 2. The competent evidence of record shows that from February 12, 2021, the Veteran has slight knee instability and requires a prescription for a brace; moderate knee instability and unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation has not been shown. 3. The competent evidence of record shows that throughout the appeal period, the Veteran's knee flexion was limited to, at worst, 50 degrees. 4. The competent evidence of record shows that throughout the appeal period, the Veteran's experienced painful knee motion. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, and no higher, prior to August 18, 2012, for knee disability have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Codes 5258, 5259 (2021). 2. The criteria for a rating in excess of 20 percent, from August 18, 2012, for knee disability have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5258 (2021). 3. The criteria for a rating of 10 percent, and no higher, for knee disability, from February 12, 2021, have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5257 (2020), Diagnostic Code 5257 (2021). 4. The criteria for a rating of 10 percent, and no higher, for right knee disability, have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.14, 4.71a, Diagnostic Code 5260 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to July 1998, June 2005 to December 2005, and May 2009 to October 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. These matters were most recently remanded by the Board in October 2020 for additional development. As for characterization of the issues on appeal, as the Veteran was awarded a 100 percent rating from July 1, 2011 to September 1, 2011 for his knee disability under 38 C.F.R. § 4.30. The rating for this disability during this period will not be addressed herein by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a disability rating of 20 percent, and no higher, under Diagnostic Code 5258, prior to August 18, 2012 (to exclude an award of a temporary total 100 percent disability rating based on convalescence from July 1, 2011 to September 1, 2011), for knee disability, is granted. 2. Entitlement to a disability rating in excess of 20 percent, under Diagnostic Code 5258, from August 18, 2012, for knee disability, is denied. 3. Entitlement to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5257, from February 12, 2021, for knee disability, is granted. 4. Entitlement to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5260, for knee painful motion, is granted. The Veteran is seeking a higher disability rating for his service-connected knee disability. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. See December 2012 VA Form 9. Legal Criteria: Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent to which a veteran may have additional functional impairment beyond the limitation of motion objectively demonstrated, such as when the symptoms are most prevalent due to the extent of the pain and painful motion, weakness, premature or excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The rating schedule is intended to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Application of 38 C.F.R. § 4.59 is not limited to cases of painful motion in which there is a finding of arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Case law and VA guidelines anticipate that VA examiners will use information procured from relevant sources, including lay statements, to estimate additional functional loss during flare-ups of musculoskeletal disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation. See 38 C.F.R. §§ 3.951, 3.957. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Butts Court held that, as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for a change in diagnostic codes must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5003 (degenerative arthritis), Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). A recent CAVC decision highlighted that separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See Lyles v. Shinseki, 29 Vet. App. 107 (2017). Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that when limitation of motion is noncompensable under the appropriate code or codes, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is no limitation of motion, a 10 percent rating will be assigned where there is x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent rating will be assigned where there is such involvement along with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5256, a 30 percent rating is assigned for ankylosis of a knee with favorable ankle in full extension, or in slight flexion between zero and ten degrees and a 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees and maximum 60 percent rating is assigned for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. Consideration must be given to whether a veteran is functionally ankylosed. Cf. Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability. An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for "mild" includes not very severe. Webster's II New College Dictionary at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. It is also noted that the term "moderately severe" indicates impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. Diagnostic Code 5260 provides a noncompensable rating for limitation of flexion to 60 degrees, a 10 percent rating for limitation of flexion to 45 degrees, a 20 percent rating for limitation of flexion to 30 degrees, and a 30 percent rating for limitation of flexion to 15 degrees. Diagnostic Code 5261 provides a noncompensable rating for limitation of extension to 5 degrees, a 10 percent rating for limitation of extension to 10 degrees, a 20 percent rating for limitation of extension to 15 degrees, a 30 percent rating for limitation of extension to 20 degrees, a 40 percent rating for limitation of extension to 30 degrees, and a 50 percent rating for limitation of extension to 45 degrees. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle warrants a 10 percent rating; characterized by malunion with a moderate knee or ankle disability warrants a 20 percent rating; and characterized by malunion with marked knee warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating. Diagnostic Code 5263 provides that genu recurvatum warrants a 10 percent rating. The Board notes that the criteria concerning the rating of knee disabilities under Diagnostic Code 5257 was amended during the pendency of this appeal, effective from February 7, 2021. Specifically, the amendment changed the criteria for compensable ratings. 85 Fed. Reg. 76463 (Nov. 30, 2020) (eff. Feb. 7, 2020). When a regulation changes during the pendency of a claim, the version most favorable to the Veteran applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling in part Karnas v. Derwinski, 1 Vet. App. 308 (1991)). However, the amended version cannot be applied prior to its effective date. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; see also Green v. Brown, 10 Vet. App. 111 (1997). Under the amended Diagnostic Code 5257, for recurrent subluxation or instability a 10 percent rating is warranted 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 (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; 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. Diagnostic Code 5257 also provides that for a patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 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 disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The Board also notes that the criteria concerning the rating of knee disabilities under Diagnostic Code 5262 was amended during the pendency of this appeal, effective from February 7, 2021. Under the amended version of Diagnostic Code 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. 85 Fed. Reg. at 76463. The amended Diagnostic Code 5262 instructs that malunion of the tibia and fibula is to be rated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Id. The amended Diagnostic Code 5262 also applies to medial tibial stress syndrome (MTSS), or shin splints, for which it provides the following ratings: a 30 percent rating is assigned for MTSS of both lower extremities, and a 20 percent rating for MTSS of one lower extremity, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment; a 10 percent rating is assigned for MTSS of one or both lower extremities requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment; a 0 percent rating is assigned for MTSS of one or both lower extremities when there has been treatment for less than 12 consecutive months. Id. Factual Background: VA treatment records from 2008 note chronic knee pain. In December 2009, the Veteran was afforded a VA examination. The Veteran denied any injuries or trauma since his June 2007 arthroscopy with removal of medial fibrous plica. He reported intermittent aching on the anterior patella with occasional locking, buckling, and stiffness. The Veteran denied swelling and reported that flareups occurred once a week when he would walk more than 2 miles at a time or climbed more than two flights at a time. He reported wearing a knee brace. On examination, initial range of motion (ROM) testing revealed flexion to 130 degrees and normal extension, which was nonpainful. After repetitive motion, flexion was reduced to 120 degrees, with grimacing beginning at 50 degrees and extension was normal. The VA examiner did not speculate on range of motion during flareups but did note that increased limitation of motion was possible. There was no noted instability, and gait was normal. In an August 2012 VA examination, the Veteran reported chronic pain. He asserted that symptoms had improved since his most recent surgery in 2011. He did report occasional swelling and stiffness. The Veteran did not use any walking aids. The Veteran did report flare-ups when walking more than 100 yards or with prolonged sitting, evidenced by facial expressions. He also reported that his knee catches at times. Initial ROM testing revealed flexion to 135 degrees, with no evidence of painful motion, and normal extension. There was no additional loss in range of motion after repetitive use testing. Muscle strength was normal and there was no noted instability or other condition. The Veteran was found to have a meniscal condition with frequent episodes of locking, pain, and effusion, and no prior joint replacement. The examiner asserted that the Veteran could experience additional limitation of motion during a flareup. August 2012 VA treatment records also show chronic knee pain. In his December 2012 VA Form 9, the Veteran reported difficulty bearing weight and problems with instability and locking in his knee. In an April 2014 buddy statement, the Veteran's significant other indicated that the Veteran has limited use of his knee. He can't ride, stand, walk, or sit for long periods of time. In a February 2015 VA examination, the Veteran reported that he had no trouble out of left knee, and the left knee felt good. He stated that maybe he had a rare popping and denied any left knee swelling, stiffness, redness, heat, clicking, locking, giving way, fracture, subluxation, dislocation, limitation in range of motion, or other complaints. Initial ROM testing revealed flexion to 140 degrees and normal extension. There was no evidence of pain on weightbearing or localized tenderness. There was no additional loss of ROM after repetitive use. With repeated use over time, the examiner failed to speculate due to mere speculation. Muscle strength was normal and there was no noted ankylosis. Joint stability testing was normal, no additional conditions were noted. The Veteran's meniscal condition was found to have no current symptoms. The Veteran's gait was normal and no assistive devices were noted. In his June 2017 hearing, the Veteran reported that he could not push a mower in the yard or ride a bicycle. He asserted that his condition had worsened. In a January 2019 VA examination, the Veteran reported left knee pain. The Veteran stated that over the last 18 months he had been having constant knee pain and slowed range of motion. He stated that he had a catch when he walks. Current symptoms included left knee pain, painful ROM, stiffness, difficulty standing for long periods of time, difficulty running and walking. There was also audible clicking sounds in the knee. The Veteran did not report flare-ups although he did report functional loss during long walks and an inability to stand too long, citing "locking." Initial ROM testing revealed normal flexion and extension. Pain was not noted to cause any functional loss. There was pain with weightbearing. There was no additional loss of ROM after repetitive use or during flareups. With repeated use over time, the examiner failed to speculate due to mere speculation. The Veteran was noted to have disturbance of locomotion and interference with standing. The Veteran muscle strength was normal and there was no muscle atrophy or ankylosis. Joint stability testing was normal. No other conditions were noted. Regarding the Veteran's meniscal condition, the Veteran was found to have frequent episodes of locking, joint pain, and effusion. The Veteran did not use an assistive device. There was objective pain on passive ROM and with weight bearing. January 2019 VA treatment records also show chronic bilateral knee pain. January 2020 VA treatment records indicate pain with passive and active ROM and crepitus. In a February 12, 2021 VA examination, the Veteran reported that over the last 12-18 months, he had increased difficulty with walking, weight bearing, and increased feeling of knee giving out. His pain is mostly dull and aching. With strenuous activity variations, it would become sharp shooting pains. The Veteran reported flareups. Initial ROM testing revealed flexion to 80 degrees and normal extension with pain noted to cause functional loss on flexion. There was pain on weight bearing and evidence of crepitus. Repetitive use, use over time, and flareups testing revealed flexion limited to 75 degrees and normal extension, with pain, weakness, and incoordination contributing to functional loss. The Veteran's muscle strength was less than normal and no muscle atrophy or ankylosis was noted. The Veteran was diagnosed with slight lateral instability and no indication of effusion or subluxation. Left knee joint stability testing revealed slight medial instability. The Veteran reported regular use of a brace. There was evidence of pain on passive ROM and with nonweight bearing. In May 2021, the Veteran was afforded another VA examination. The Veteran reported that he could not sit, stand, or walk for long periods of time without increased pain. He also reported difficulty bending, squatting, and climbing stairs. Initial ROM testing revealed flexion to 110 degrees and normal extension. Pain was noted on extension and flexion. Passive ROM was noted to be same as initial ROM. There was pain with active motion, passive motion, weightbearing, and at rest. No additional functional loss was noted after repetitive motion. With repeated use over time, the Veteran's ROM was noted to be flexion limited to 100 degrees and normal extension. The Veteran was noted to have interference with standing and sitting. There was no muscle atrophy or ankylosis. Instability was noted but there was not ligament tear. A prescription was noted for a brace but there was no noted recurrent patellar instability. No other conditions were noted. The Veteran's meniscus condition was found to have frequent episodes of locking, joint pain, and effusion. Analysis: Here, the Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5299-5259 prior to August 18, 2012 (except for periods when temporary 100 percent rating was in effect). Effective August 18, 2012, the Veteran is assigned a 20 percent disability rating under Diagnostic Code 5299-5258. Following a review of the record and applicable legal criteria, for the reasons detailed below, the Board finds that prior to August 18, 2012, a higher disability rating of 20 percent is warranted under Diagnostic Code 5258; and a disability rating in excess of 20 under Diagnostic Code 5258 is not warranted for the period entire on appeal. A separate disability rating for painful motion under Diagnostic Code 5260 is also warranted. In addition, a separate disability rating for instability under Diagnostic Code 5257 is warranted, effective February 12, 2021. Limitation of Motion (Diagnostic Codes 5260, 5261) As a preliminary matter, the Board first acknowledges that although the Veteran was afforded multiple VA examinations throughout the appeal period, the February 2021 examination is the only examination that is compliant with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and the May 2021 VA examination is the only examination compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board will consider the Veteran's lay statements and other favorable medical findings and use the range of motion findings most favorable to the Veteran throughout the appeal period. Thus, there is no prejudice to the Veteran in not considering the multiple VA examinations to rate his disability based on limitation of motion and DeLuca factors. Here, throughout the appeal period the VA examinations, treatment records, and lay statements show that the Veteran has exhibited flexion limited to, at worst 50 degrees. See December 2009 VA Examination (indicating grimacing beginning at 50 degrees of flexion). As such a noncompensable disability rating is warranted based on limitation of flexion under Diagnostic Code 5260. A higher disability rating of 10 percent based on limitation of flexion is not warranted because the Veteran does not have flexion limited to 45 degrees. In addition, the VA examinations, treatment records, and lay statements show that throughout the appeal period the Veteran has had normal extension. As such a disability rating based on limitation of extension is not warranted under Diagnostic Code 5261. The Board recognizes, however, that 'painful' motion under Diagnostic Code 5260 warrants at least a minimum compensable rating pursuant to provisions of 38 C.F.R. § 4.59. Here, the evidence shows that the Veteran has painful motion, to include during flexion. See generally VA Examinations. As such, a separate disability rating of 10 percent, and no higher, for painful motion under Diagnostic Code 5260 is warranted. The Board acknowledges that in his most recent May 2021VA examination, pain was also noted on extension. However, given that the Board has herein granted a 10 percent disability rating for painful motion under Diagnostic Code 5260, to provide the Veteran with a compensable rating for painful motion under Diagnostic Code 5261 would be duplicative and constitute as pyramiding because it would be based on the same symptomology. 38 C.F.R. § 4.14. As such, a disability rating for painful motion under Diagnostic Code 5261 is not warranted. Instability (Diagnostic Codes 5257, 5258, 5259) As noted above, the Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5299-5259 prior to August 18, 2012 (except for periods when temporary 100 percent rating was in effect). Effective August 18, 2012, the Veteran is assigned a 20 percent disability rating under Diagnostic Code 5299-5258 As an initial matter, for the appeal period prior to August 18, 2012, the Board will replace the current 10 percent evaluation under Diagnostic Code 5299-5259 with a 20 percent disability rating under diagnostic Code 5258. Butts v. Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). For the period on appeal prior to August 18, 2012, the evidence of record shows that although the Veteran had surgery and a partial removal of semilunar cartilage, the Veteran has consistently experienced frequent episodes of "locking, pain, and effusion into the joint." See, e.g., August 2012 VA examination; December 2009 VA Examination. As such a disability rating of 20 percent under Diagnostic Code 5258 most closely approximates the Veteran's disability picture prior to August 18, 2012. Regarding the entire period on appeal a higher disability rating under Diagnostic Code 5258 is not warranted as a Diagnostic Code 5258 provides a maximum 20 percent rating. A separate disability rating under Diagnostic Code 5259 is also not warranted. The Board acknowledges that the Veteran has had partial meniscectomies. However, given that the Board has herein granted a 20 percent disability rating for painful motion under Diagnostic Code 5258, to provide the Veteran with a compensable rating under Diagnostic Code 5259 would be duplicative and constitute as pyramiding because would be based on the same symptomology. 38 C.F.R. § 4.14. As such, a separate disability rating under Diagnostic Code 5259 is not warranted. The Board next finds that a disability rating of 10 percent under Diagnostic Code 5257 for instability, effective February 12, 2021, is warranted. Specifically, the record shows that in his February 2021 VA examination the Veteran was diagnosed with slight lateral instability and no indication of effusion or subluxation. The Board finds that a higher disability rating is not warranted because the record does not show that the Veteran's symptoms were mild, average, intense, or severe in nature. In addition, although the Veteran has a prescription for a brace, the record also does not show 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. The Board has considered whether an earlier effective date is warranted for the award of the disability rating under Diagnostic Code 5257. Although the Veteran reported experiencing instability in a December 2012 VA Form 9, the VA examinations, treatment records, and additional lay assertions throughout the period on appeal prior to February 2021 do not indicate instability. The Board has considered the Veteran's competent lay assertion and notes that the Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that in this case the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's knee disability. As such medical evidence is assigned a higher probative value, and a disability rating prior to February 12, 2021, is not warranted. Additional Ratings (Diagnostic Codes 5256, 5262, 5263) Here, there is no evidence in the claims file showing ankylosis so as to warrant a disability rating under Diagnostic Code 5256. Rather, the record shows that the Veteran's knee was not ankylosed (i.e., frozen). As noted above, the Board acknowledges that consideration must still be given to whether he is functionally ankylosed in the knee. Chavis, supra. Here, the Veteran reported increased pain during flare-ups and restricted activity with limited ROM. The Board finds the evidence of record, however, does not support that the Veteran's knee was immobile even during flare-ups considering he reported being able to walk and climb stairs, albeit with difficulty and limitations. Regarding a disability rating under Diagnostic Code 5262 both prior to and beginning February 7, 2021, the weight of the evidence is against finding that a separate disability rating is warranted for impairment of the tibia and fibula or shin splints. There is also no indication that the Veteran has a malunion of the tibia and/or fibula or has been treated for shin splints. As such a compensable disability under Diagnostic Code 5262 and/or the amended Diagnostic Code 5262 is not warranted. There is also no evidence of record indicating genu recurvatum warranting a rating under Diagnostic Code 5263. As such, the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5263 for his knee disability. In reaching all of the above determinations, the Board has considered the Veteran's competent lay assertions, VA treatment records, and additional records, to specifically include his reports of pain, knee giving way, limitation of motion, and difficulty standing, and walking, and instability. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's knee disability. Based on the forgoing, prior to August 18, 2012, a disability rating of 20 percent, and no higher, is warranted under Diagnostic Code 5258. A disability rating in excess of 20, beginning August 18, 2012, under Diagnostic Code 5258, is not warranted. A separate disability rating of 10 percent, for painful motion, under Diagnostic Code 5260, is warranted; and a separate disability rating, effective February 12, 2021, for instability, under Diagnostic Code 5257, is warranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for a right shoulder disability is remanded. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, the Court recently made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Pursuant to remand instructions, the Veteran was afforded a VA examination in February 2021. Although the examiner noted that the Veteran experienced objective pain on passive ROM and with non-weight bearing, the VA examiner did not provide ROM measurements or explain why such measurements were not obtained and/or estimated. Therefore, a remand is necessary for an addendum opinion that addresses the Correia elements and includes a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal period. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim remanded herein. As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and severity of Veteran's right shoulder disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The examiner should estimate the Veteran's passive range of motion throughout the entire period on appeal. If passive range of motion cannot be estimated and/or tested, the examiner should explain why passive range of motion testing could not be performed or was not medically appropriate. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (Continued on the next page) A rationale for all opinions must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.