Citation Nr: 21076288 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-63 268 DATE: December 23, 2021 ORDER 1. Prior to February 4, 2019, a disability rating in excess of 10 percent for right knee arthritis is denied. 2. Prior to February 4, 2019, a disability rating in excess of 10 percent for right knee instability is denied. 3. Prior to February 4, 2019, a separate 20 percent disability rating for right knee torn meniscus is granted. REMANDED A rating in excess of 30 percent for right knee post arthroplasty since February 4, 2019, exclusive of the temporary total rating period. FINDINGS OF FACT 1. Prior to February 4, 2019, the Veteran's right knee disability manifested by limitation of flexion of the knee to at most 70 degrees, even during flareups, due to painful motion, reduced range of motion, weakness, lack of endurance, fatigability, and incoordination. 2. Prior to February 4, 2019, the Veteran's right knee instability manifested by at most slight instability. 3. Prior to February 4, 2019, the Veteran's right knee torn meniscus manifested in frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. Prior to February 4, 2019, the criteria for a disability rating in excess of 10 percent for right knee arthritis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5003, 5260. 2. Prior to February 4, 2019, the criteria for a rating in excess of 10 percent for right knee instability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. Prior to February 4, 2019, the criteria for a separate 20 percent disability rating for right knee torn meniscus have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1974 to July 1980. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the August 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. Thereafter, in a May 2019 rating decision assigned a temporary 100 percent disability rating based on surgical or other treatment necessitating convalescence from February 4, 2019 and assigned a 30 percent evaluation from March 1, 2020 for the Veteran's right knee arthritis. This staged rating does not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the full claim period remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2019, the Board issued a decision granted a separate 10 percent disability rating and denied higher or additional separate ratings for right knee arthritis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court vacated the June 2019 Board decision and remanded the matters to the Board for further development consistent the order. The Board remanded the right knee rating claim in July 2020 and June 2021 for additional development. Finally, in an August 2021 rating decision, the Veteran was assigned an effective date of May 26, 2015 for the assignment of a separate 10 percent rating for right knee instability associated with right knee degenerative arthritis. As noted above, the full claim period remains on appeal. AB, 6 Vet. App. at 38. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating in excess of 10 percent for right knee arthritis prior to February 4, 2019. 2. A rating in excess of 10 percent for the right knee instability prior to February 4, 2019. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Prior to February 4, 2019, the Veteran's right knee arthritis was rated based on limitation of motion of the knee, which is contemplated under 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Ratings for limitation of extension of the knee are under 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. In addition, prior to February 4, 2019, the Veteran has been rated 10 percent for right knee instability pursuant to DC 5257. Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Merriam-Webster dictionary defines "moderate" as tending toward the mean or average amount or dimension and "severe" is "of a great degree." See https://www.merriam-webster.com/dictionary/moderate; www.merriam-webster.com/dictionary/severe. Effective February 7, 2021, the criteria to knee instability were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020); 38 C.F.R. § 4.71a, DC 5257. Under the new criteria for DC 5257, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; a 20 percent rating is assigned for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device (e.g., cane, crutch), walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and bracing for ambulation. Furthermore, under the new criteria separate ratings may also be assigned for patellar instability. For patellar instability a 10 percent rating assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. NOTE 1 following the criteria provides, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. NOTE 2 following the criteria provides a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board also notes that, as the February 7, 2021 rating criteria change did not specify that it was to have a retroactive effect, the prior criteria and the new criteria will both be considered for the later rating period and the rating assigned based on the criteria most favorable to the Veteran. However, an award warranted under the revised criteria cannot be effective prior to February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Veterans also may be granted separate ratings for removal of semilunar cartilage of the knee. This condition is considered under DCs 5258 and 5259. DC 5258 provides for a 20 percent evaluation for semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. In addition, since February 4, 2019, exclusive of a temporary total rating period, the Veteran's right knee disability has been rated solely under DC 5055 based on his right knee arthroplasty completed on such date. Under DC 5055, a 100 percent evaluation is assigned for prosthetic replacement of the knee joint following implantation of prosthesis. After the period of a 100 percent evaluation, the minimum rating for this disability is 30 percent based on intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to DCs 5256, 5261, or 5262. Outside periods of temporary total ratings, the maximum rating under DC 5055 is 60 percent based on chronic residuals consisting of severe painful motion or weakness in the extremity. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Furthermore, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). "Sedentary employment" is defined by the common meaning in society of non-physical, white collar, office-type work. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102, 4.3. Factual History In June 2016, the Veteran underwent a VA examination for this claim. The Veteran reported being told that he had either right knee torn cartilage or torn meniscus. He denied experiencing flare ups. Under functional impairment including repeated use over time, the Veteran reported that he is unable to stand or walk for prolonged periods, cannot frequently stop or kneel, and was unable to climb stairs or ladders repetitively. The Veteran's flexion was to 110 degrees and extension to zero degrees with pain noted on examination during both flexion and extension. There was no evidence of pain with weight bearing. The VA examiner noted objective evidence of localized tenderness or pain on palpation as well as abnormal range of motion contributing to functional loss. There was no additional loss of range of motion of the right knee after three repetitions and muscle strength testing was normal. With respect to repeated use over time, the VA examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time, and that the examination was medically consistent with the Veteran's reports. There was no evidence of crepitus or recurrent patellar subluxation/dislocation. The VA examiner cited October 2014 x-rays showing history of small joint effusion. Joint stability testing was normal and there was no ankylosis or muscle atrophy. There were no shin splints or meniscal conditions. Under other pertinent findings, the VA examiner noted that repeated use over time causes increased pain without additional functional loss. It was noted that the Veteran used a cane due to his left knee. Imaging studies showing right knee DJD and joint effusion were noted. Under functional impact, the VA examiner listed no prolonged standing or walking no frequent stooping or kneeling, and no repetitive climbing of stairs or ladders. The VA examiner concluded that the Veteran's DJD was related to service but that there was no clinical evidence of a torn cartilage. The March 2020 Court order found that the June 2016 VA examiner's findings are inadequate because the VA examiner noted functional loss, but did not describe it in terms of the degree of additional range of motion loss due to pain on use or during flare ups. However, the Veteran denied flare ups during the June 2016 VA examination. Therefore, an analysis concerning additional range of motion during flare ups is not applicable. Moreover, the VA June 2016 VA examiner indicated that there was no additional range of motion loss due to pain after repetitive use, and as such, it is unlikely that pain without repetitive use caused additional range of motion. An October 2016 VA treatment note indicates that the Veteran's right knee pain has been progressively worsening over the last 6 months. It was noted that the Veteran began to take pain medication and use steroid dose packs for pain. A November 2016 VA treatment note contains reports of the Veteran's knee giving out causing a fall. The Veteran reported falling with his right foot folding under him. He reported swelling and pain. A January 2017 right knee MRI impressions indicate bucket-type tear of posterior horn medial meniscus. The Veteran was noted to have complex meniscal tearing anterior horn lateral meniscus. He was also noted to have moderate tricompartmental osteoarthritic changes. It was noted that the Veteran had a consultation for a left-hand cane, preferred no injections, and was considering a total right knee replacement. A March 2017 VA orthopedic surgery consultation note indicates that the Veteran's right knee problems started about 7 months ago after fall standing. It was noted that there was no orthopedic care and no history of trauma or surgery. The Veteran reported that his knee feels like it is sticking and that he used pain patches. The Veteran's knee was warm to touch. There was no patellar instability. Patellar apprehension was noted. Patellar shrug sign was mildly positive, potentially suggestive of patella-femoral cartilage pathology. There was crepitus and pain. Flexion was to 100 degrees and extension to zero degrees. It was noted that the Veteran's range of motion was restricted by anatomically large thighs. Discomfort was observed with lateral and medial traction applied to the patella during flexion. It was noted that repeated movements did not reveal pain, weakened movement, excessive fatigability, incoordination, or flares. The Veteran was diagnosed with right knee calcinosis, DJD with typical accompanying meniscus disease. It was noted that the Veteran was not interested in injections or other invasive treatments and would contact his providers when he is ready for surgical care. In September 2017, the Veteran underwent a VA examination for his claim. The Veteran reported increasing right knee pain and feeling like his right knee will give out. He also reported flare ups of increased aches with overuse and functional impairment of being unable to walk on uneven surfaces or kneel. The VA examiner noted that all of this limits activities that the Veteran enjoys, but that he is not limited in sedentary work. Flexion was to 70 degrees and extension to zero degrees, with pain on active motion and with weightbearing. The VA examiner noted that range of motion is limited to the point that the Veteran cannot kneel or do anything requiring deep knee bending. Pain was noted on flexion, causing functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation. There was no additional loss of motion after 3 repetitions. There was no evidence of crepitus and no recurrent dislocation. The VA examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare ups. The VA examiner also concluded that pain and weakness significantly limited functional ability with repeated use over time and during flare ups, but that they could not describe in terms of range of motion. The VA examiner further noted that the Veteran reported no further loss in range of motion during flare ups or with repeated use over time. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. Joint instability testing was normal and there was no recurrent subluxation. The VA examiner noted that there was right sided joint effusion noted on previous x-rays but that none was noted clinically on the examination. The March 2020 Court order found that the September 2017 VA examination is inadequate to the extent that it failed to test for pain on both active and passive motion, in weight-bearing and with the range of the opposite joint. A January 2019 private treatment note from a Dr. B.P. indicates that the Veteran reported weakness, feelings of instability, and locking and catching. In April 2019, the Veteran underwent a VA examination for his claim. The Veteran reported being diagnosed with right knee meniscal tear in January 2017 and having a February 2019 total right knee replacement surgery. He also reported experiencing moderate knee pain that rarely requires pain medication, being limited to walking 25 to 50 yards at a time without resting for 15 or 20 minutes, being able to stand for 7 to 8 minutes without significant pain, and no longer being able to squat, kneel, run, or play sports. The Veteran further reported experiencing flare ups lasting 5 to 60 minutes every other day.. The examiner reported right knee range of motion from zero degrees to 75 degrees with pain on motion that did not result in functional loss and reported pain with weight-bearing and passive range of motion. The examiner denied the presence of pain on nonweight-bearing, recurrent subluxation, lateral instability, instability on testing, ankylosis, reduced muscle strength, crepitus, and additional loss of range of motion on 3 repetitions of testing and on repetitive use overtime. The examiner also explained that the Veteran's flare ups result in him avoiding weight-bearing, but do not result in additional loss of range of motion. The examiner reported some use of assistive devices on weight-bearing with use of a cane or a walker when he has more pain and a wheelchair for significant distances. The examiner found that the right knee post arthroplasty results in swelling, prevents walking or standing for more than a few minutes at a time, and prevents him from performing physical employment, but not sedentary employment. Based on the examination and claims file, the examiner concluded that the right knee post arthroplasty results in intermediate degrees of residual weakness, pain or limitation of motion. In February 2021, the Veteran underwent a VA examination for his claim. The Veteran reported that prior to his right knee replacement, there was swelling, heat, lightening pain, pain with walking and standing for longer than 15 minutes, bone spurs and chips, and that stairs were painful to walk. The Veteran did not report flare ups. He indicated that he could not kneel or crawl. He did not report a history of instability or recurrent subluxation of the knee. There was no history of frequent effusion. The VA examiner reviewed the Veteran's records and recited his medical history, noting that by the September 2017 VA exam, there was moderate tricompartmental findings with multiple meniscal tears in the medial and lateral compartments, and that by February 2019, the Veteran's knee was replaced. The VA examiner noted that the multiple tears were consistent with chronic degenerative changes, and that the instability of the Veteran's knee is due to his arthritis. The examiner reported right knee range of motion from 5 degrees to 95 degrees without evidence of pain. Pursuant to the Board's June 2021 remand, the February 2021 VA medical opinion was incomplete as it was not responsive to the Board's July 2020 remand directives which requested a retroactive opinion and not the current nature and severity of the Veteran's knee. In August 2021, the VA produced an addendum medical opinion. The VA examiner thoroughly summarized the Veteran's medical history and records. The VA examiner concluded that during the period on appeal, the Veteran had pain at rest, with active and passive motion, with weight-bearing, and that meniscal tears typically cause instability. The VA examiner further noted that the Veteran reported his knee giving out and falling in November 2016, and that this is indicative of a typical meniscal tear. Analysis Based on the review of the entire record, prior to February 4, 2019, the Veteran's right knee disability manifested by noncompensable limitation of flexion and noncompensable limitation of extension throughout the period on appeal. The currently assigned 10 percent rating under DC 5003-5260 on the basis of noncompensable limitation of flexion of the right knee with objective evidence of arthritis and painful motion. Thus, to warrant a higher rating, the evidence would have to show that the criteria are more nearly approximated for the assignment of separate compensable (10 percent) ratings for both limitation of flexion and limitation of extension (flexion limited to at least 45 degrees under DC 5260 and extension limited to at least 10 degrees under DC 5261); or, that the criteria are more nearly approximated for the assignment of a 20 percent rating for either limitation of flexion, or, limitation of extension (i.e. flexion limited to at least 30 degrees under DC 5260, or, extension limited to at least 15 degrees under DC 5261). These limitations are not credibly shown. Rather, the most probative evidence of record reflects that the Veteran's right and left knee limitation of flexion was to no less than 70 degrees with pain noted for the period on appeal. Although pain was noted, it did not result in or cause functional loss beyond what is already contemplated by the 10 percent disability rating. For example, the June 2016 VA examination report indicates that the Veteran denied flare ups, had pain that causes functional loss on examination, but did not have pain with weight bearing. The VA examiner found no additional loss of range of motion after repeated use and concluded that repeated use over time caused pain but did not cause additional functional loss. The same examiner found that pain, weakness, fatigability, and incoordination did not significantly limit functional ability. In other words, the evidence does not reflect additional loss of motion warranting a higher rating under DC 5260, even considering the factors in 38 C.F.R. §§ 4.40, 4.45, including flare-ups. The March 2017 VA orthopedic consultation note indicates that the Veteran's flexion was to 100 degrees with no additional pain after repeated movements. The September 2017 VA examiner noted that the Veteran had pain with active motion and weight bearing, with flexion to 70, and the limitation in the range of motion preventing the Veteran from being able to walk on uneven surfaces or kneeling. During the September 2017 VA examination, the Veteran did not report additional loss of range of motion during flare ups or with repetitive use. Finally, the August 2021 VA examiner noted that the Veteran had pain at rest, with active and passive motion, and with weight-bearing. Given the range of motion findings and the lack of significant functional loss, frequency, and severity with flareups, or other motion including repetitive motion, it cannot be said that range of motion would more nearly approximate flexion limited to 30 degrees as required for a 20 percent rating under DC 5260. As to the Veteran's limitation of extension of the right or left knee, there is no basis for a separate rating based on limitation of extension. VAOPGCPREC 9-2004 (2004) (separate ratings may be assigned under DCs 5260 and 5261, where there is compensable limitation of flexion and extension). As noted above, the Veteran's right and left knee disabilities were assigned a 10 percent disability rating based on painful motion. Throughout the entire period on appeal, range of motion testing did not reflect extension limited to 10 degrees and flexion limited to 45 degrees. The Veteran's extension of the right and left knee was always to zero degrees. The VA examiners did not report that the Veteran's extension was worse than zero degrees. As the record does not show limited that there was compensable limitation of flexion and extension, a separate rating for extension under DC 5261 is not warranted. With respect to Correia, the August 2021 VA examination report in particular addressed pain on active and passive motion, in weight bearing and nonweight-bearing, and with range of motion in both knees. Correia v. McDonald, 25 Vet. App. 158 (2016). Additionally, application of staged ratings was considered in this case, and the evidence has supported a finding that the Veteran's symptoms stayed consistent throughout the period of appeal. Because the severity of the Veteran's symptoms stayed consistently the same, staged ratings are not applicable in this matter. In summary, the most probative evidence of record has consistently shown that the Veteran's right knee motion is not limited to the point that a compensable rating is assignable under Diagnostic Code 5260 for limitation of flexion; or, under Diagnostic Code 5261 for limitation of extension. Therefore, the Board finds that the assigned 10 percent rating for right knee arthritis account for the Veteran's right knee symptoms of painful motion, reduced range of motion, weakness, lack of endurance, fatigability, and incoordination, even during flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003; DeLuca, 8 Vet. App. at 202. Accordingly, there is no basis to assign a rating in excess of the currently assigned 10 percent rating, which was initially assigned based on noncompensable limitation of motion under Diagnostic Code 5003. With respect to right knee lateral instability, the Veteran has been assigned a 10 percent disability rating under DC 5257 for the period on appeal. The March 2017 VA orthopedic note showed no patellar instability with the Veteran reporting his knee sticking. The September 2017 VA examination report showed normal joint instability testing. However, a November 2016 VA treatment note indicates that the Veteran reported his knee giving out and falling. A January 2019 private treatment note indicates that the Veteran reported his right knee locking and catching, with feelings of instability. The evidence also shows that the Veteran uses a cane for his left knee only. Although objective testing during the VA examinations in this case did not specifically support a finding of lateral instability of the right knee, the Veteran consistently reported his right knee being unstable and giving out, and his contentions are supported by the evidence of him falling in November 2016. See English v. Wilkie, 30 Vet. App. 347 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). However, the lack of objective evidence of instability on examination can be used as probative evidence to find that any instability of the right is no more than slight in degree. In other words, as there was no objective evidence of instability during any of the Veteran's VA examinations, there is no basis to find that the Veteran's right instability is more than slight in degree. The Board can reasonably infer that if the Veteran reported right knee instability being more than slight, it would have been noted on an examination report based on objective testing. While the Veteran reported falling in November 2016 and his knee catching in January 2019, the Veteran's right knee instability does not rise to the level of moderate, as required for a 20 precent disability rating. Accordingly, a rating in excess of 10 percent based on right knee instability is not warranted prior to February 4, 2019. However, there is x-ray evidence of both a torn meniscus as well as joint effusion. The Court has held that evaluation of a knee disability under DCs 5257 or 5261, or both, does not as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to Diagnostic Codes 5258 or 5259 as long as the same symptoms are not used to assign those separate evaluations (i.e., pyramiding). See Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Lyles, the Court concluded by stating that where manifestations of a musculoskeletal disability causing additional functional limitation have not resulted in elevation pursuant to Deluca, those manifestations have not yet been compensated for separate evaluation and pyramiding purposes. As previously noted, during the period on appeal, the Veteran is in receipt of a 10 percent disability rating for noncompensable limitation of motion of the right knee due to arthritis under DC 5003-5260. He is also in receipt of a separate 10 percent disability rating for right knee instability under DC 5257. However, neither DCs 5003-5260 or DC 5257 specifically contemplate the symptoms of locking and effusion into the joint. As explained above, numerous clinical records document the Veteran's effusion into the joint and the Veteran has competently and credibly reported experiencing right knee sticking during the period on appeal. As frequent episodes of locking and effusion into the joint are explicitly contemplated under DC 5258 and the these manifestations have not resulted in elevation of the ratings assigned under DCs 5003-5260 or DC 5257 pursuant to Deluca, these manifestations of the Veteran's right knee meniscal tear do not overlap with and have not been compensated by the other evaluations assigned for the right knee disability. This is considered a complete grant of benefits for this aspect of the claim as 20 percent is the highest schedular rating available for meniscal disabilities. 38 C.F.R. § 4.71a, DCs 5258, 5259. Finally, The Board has considered other disabilities of the knee and leg that are evaluated under Diagnostic Codes 5256, 5259, 5262, and 5263. However, the medical and lay evidence does not show that the Veteran's right knee disability was manifested by ankylosis, symptomatic removal of semilunar cartilage, or any impairment of the tibia and fibula, or genu recurvatum at any time during the appeal period. Thus, Diagnostic Codes 5256, 5259, 5262 and 5263 are not applicable in this case. The persuasive evidence of record shows that, prior to February 4, 2019, the Veteran's right knee disability manifested by limitation of flexion of the knee to at most 70 degrees, even during flareups, due to painful motion, reduced range of motion, weakness, lack of endurance, fatigability, and incoordination, at most slight instability, and a torn meniscus resulting in frequent episodes of locking, pain, and effusion into the joint. Thus, the assignment of a separate 20 percent disability rating under Diagnostic Code 5258 for right knee torn meniscus is warranted, but there are no higher or additional separate ratings warranted prior to February 4, 2019. Although the Board is remanding the issue of a higher right knee rating post arthroplasty after February 4, 2019 for additional development, remand is not necessary for the assigned right knee ratings prior to such date as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND A rating in excess of 30 percent for right knee post arthroplasty since February 4, 2019, exclusive of the temporary total rating period. The Board finds that a remand is necessary to obtain another examination in regard to the issue of whether a higher rating is warranted for right knee post arthroplasty since February 4, 2019, exclusive of the temporary total rating period. In this regard, the Board notes that the June 2019 Board decision found that the appeal period was limited to prior to the Veteran's knee replacement surgery on February 4, 2019. However, the decision did not cite to any factual or legal basis for this finding. As noted above, the assigned 30 percent rating since such date does not represent the maximum disability rating assignable for this disability and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the full claim period remains on appeal. See AB, 6 Vet. App. at 38. The June 2020 Board remand resulted in another examination and medical opinion in regard to the severity of the Veteran's right knee disability in February 2021. In addition, the July 2021 Board remand resulted in another medical opinion in regard to the severity of the Veteran's right knee disability in August 2021. However, this additional development was requested solely in regard to the severity of the disability prior to February 4, 2019. Therefore, a remand is required to obtain another examination addressing the severity of the Veteran's right knee symptoms since the total knee replacement. The claim is are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the service-connected right knee disability since February 4, 2019. 1. State whether there is any objective evidence of pain on active and passive range of motion of the right knee in both weight-bearing and non-weight-bearing circumstances; and, if there is pain on motion, identify the specific excursion(s) of motion accompanied by pain (in degrees); the point in range of motion testing when pain begins and ends (in degrees); and the point at which pain begins and ends after repetitive motion, in degrees. If this testing cannot be done, the examiner should clearly explain why this is so. 2. If there are flare-ups reported and the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. If the examiner cannot provide some or all of the requested opinions regarding flareups, he or she should explain whether it is due to the limitation of knowledge in the medical community at large. A rationale should be provided for opinions expressed. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.