Citation Nr: 21077139 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-49 356 DATE: December 28, 2021 ORDER New and material evidence to reopen the claim for entitlement to service connection for a back disorder has been received and the claim is reopened; to this limited extent, the appeal is granted. Service connection for thoracolumbar spine degenerative arthritis is granted. From December 9, 2009, entitlement to a rating in excess of 20 percent for patellofemoral syndrome of the left knee is denied. From December 9, 2009, entitlement to a rating in excess of 20 percent for patellofemoral syndrome of the right knee is denied. From December 9, 2009, entitlement to an initial rating of 30 percent, but no greater, for left knee instability is granted. From December 9, 2009, entitlement to an initial rating of 30 percent, but no greater, for right knee instability is granted. From December 9, 2009, entitlement to an initial rating of 20 percent, but no greater, for left knee locking is granted. From December 9, 2009, entitlement to an initial rating of 20 percent, but no greater, for right knee locking is granted. From April 8, 2011, to October 28, 2015, entitlement to an initial rating of 10 percent, but no greater, for right knee limitation of extension is granted. From October 29, 2015, to March 22, 2016, entitlement to a rating of 40 percent, but no greater, for right knee limitation of extension is granted. From March 23, 2016, to May 31, 2018, entitlement to a rating of 10 percent, but no greater, for right knee limitation of extension is granted. From June 1, 2018, entitlement to a rating in excess of 10 percent for right knee limitation of extension is denied. From June 1, 2018, entitlement to a rating in excess of 10 percent for left knee limitation of extension is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A June 2016 RO rating decision confirmed and continued the earlier unappealed June 1990 rating decision that denied service connection for back disability. Evidence received subsequent to June 2016 relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a back disorder. 2. The Veteran's thoracolumbar spine degenerative arthritis began during active service. 3. From December 9, 2009, the Veteran's patellofemoral syndrome of the left knee is characterized by flexion limited to 27 degrees. 4. From December 9, 2009, the Veteran's patellofemoral syndrome of the right knee is characterized by flexion limited to 35 degrees. 5. From December 9, 2009, the Veteran's left knee instability is characterized by severe recurrent subluxation or lateral instability. 6. From December 9, 2009, the Veteran's right knee instability is characterized by severe recurrent subluxation or lateral instability. 7. From December 9, 2009, there is left knee cartilage dislocation with frequent episodes of locking, pain, and effusion into the joint. 8. From December 9, 2009, there is right knee cartilage dislocation with frequent episodes of locking, pain, and effusion into the joint. 9. From April 8, 2011, to October 28, 2015, right knee extension is limited to 10 degrees. 10. From October 29, 2015, to March 22, 2016, right knee extension is limited to 30 degrees. 11. From March 23, 2016, to May 31, 2018, right knee extension is limited to 10 degrees. 12. From June 1, 2018, right knee extension is limited to 10 degrees. 13. From June 1, 2018, left knee extension is limited to 10 degrees. CONCLUSIONS OF LAW 1. Evidence received since the June 2016 rating decision is new and material, and the Veteran's claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for thoracolumbar spine degenerative arthritis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. From December 9, 2009, the criteria for a disability rating in excess of 20 percent for patellofemoral syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5260. 4. From December 9, 2009, the criteria for a disability rating in excess of 20 percent for patellofemoral syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5260. 5. From December 9, 2009, the criteria for a disability rating of 30 percent, but no greater, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5257. 6. From December 9, 2009, the criteria for a disability rating of 30 percent, but no greater, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5257. 7. From December 9, 2009, the criteria for a disability rating of 20 percent, but no greater, for left knee cartilage dislocation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5258. 8. From December 9, 2009, the criteria for a disability rating of 20 percent, but no greater, for right knee cartilage dislocation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5258. 9. From April 8, 2011, to October 28, 2015, the criteria for a disability rating of 10 percent, but no greater, for right knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5261. 10. From October 29, 2015, to March 22, 2016, the criteria for a disability rating of 40 percent, but no greater, for right knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5261. 11. From March 23, 2016, to May 31, 2018, the criteria for a disability rating of 10 percent, but no greater, for right knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5261. 12. From June 1, 2018, the criteria for a disability rating in excess of 10 percent for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5261. 13. From June 1, 2018, the criteria for a disability rating in excess of 10 percent for left knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from February 1987 to October 1989. This matter is on appeal from an April 2010 rating decision. In August 2016, a hearing was held before a judge who is no longer at the Board. In October 2021, the Veteran was told that he had 30 days to request a hearing before a different judge; however, because the Veteran did not indicate he wished to testify at another Board hearing, the Board will proceed to adjudicate this appeal based on the current record. This matter was previously remanded in February 2017, October 2018, and March 2021. In September 2020, the RO reduced the Veteran's ratings for his patellofemoral syndrome disorders. In July 2021, the RO restored these ratings. In February 2019, the RO reopened and confirmed and continued the denial of service connection for thoracolumbar spine degenerative arthritis. In March 2020, the Board dismissed an appeal of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for thoracolumbar spine degenerative arthritis. The rationale was that the Veteran had mistaken sought to appeal this decision by filing a VA Form 10182 in response to a February 2019 legacy rating decision, rather than a VA Form 20-0958. The Veteran timely appealed to United States Court of Appeals for Veterans Claims (Court). In April 2021, a joint motion to terminate the appeal and a stipulated agreement were entered, in which it was agreed that VA would accept the VA Form 10182 as an appeal of the February 2019 legacy rating decision and issue a Supplemental Statement of the Case (SSOC). In June 2021 the RO issued a Statement of the Case on this issue and in October 2021, the RO issued an SSOC. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim, triggering an alternative theory of entitlement, or triggering the Secretary's duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of service connection for thoracolumbar spine degenerative arthritis After separation from service in October 1989, in November 1989 the Veteran filed an initial claim of service connection for back disability. This claim was denied in an unappealed June 1990. In that rating decision, the RO found that the Veteran's mechanical back pain shown in service was "acute, transitory and self-limiting, without residual disability. In June 2016, the RO denied the Veteran's claim of entitlement to service connection for lumbar strain. Part of the reason for this denial was that there was no link between lumbosacral strain and service. Lumbar strain was at the time the only back disorder identified for the Veteran. Evidence submitted since that time indicates that the Veteran has been diagnosed with thoracolumbar spine degenerative arthritis, a different diagnosis from lumbar strain. See December 2018 VA back examination. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran's claim, in that while there was no nexus between lumbar strain and service, there could be a relationship between thoracolumbar spine degenerative arthritis and service. Further, this evidence is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran's claim have been met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Service connection for thoracolumbar spine degenerative arthritis The Veteran argues that his back problems are related to service. A December 1989 service treatment record indicates that since March 1987 the Veteran has experienced "mechanical low back pain, chronic." This entry also contains a notation reading, "back school scheduled." The December 2018 VA back examination contains a diagnosis of thoracolumbar spine degenerative arthritis, a different diagnosis from lumbar strain. The Board finds that service connection for thoracolumbar spine degenerative arthritis is warranted. Service treatment records corroborate the Veteran's reports of in-service back pain. The Board finds this testimony regarding the onset and continuation of symptoms to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("A lay witness may testify as to his or her observations of the features or symptoms that a claimant exhibited."). Resolving doubt in the Veteran's favor, the Board finds that the Veteran's thoracolumbar spine degenerative arthritis had its onset in service. See 38 C.F.R. § 3.303(a) ("Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces[.]"); Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). In light of the foregoing, service connection is warranted for thoracolumbar spine degenerative arthritis. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. A VA examination must address the frequency, duration, characteristics, severity, and/or functional loss during flare-ups, based on all the evidence of record, including statements from the Veteran. Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017). Knees Rating Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Diagnostic Code 5257 Under the former regulations, Diagnostic Code 5257 governs other impairments of the knee. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee. Id. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee. Id. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. Id. Effective February 7, 2021, Diagnostic Code 5257 governs other impairments of the knee, but has separate rating sections for "Recurrent subluxation or lateral instability" and "Patellar instability." 38 C.F.R. § 4.71a. For recurrent subluxation or lateral instability, a 10 percent rating is appropriate 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(s), crutch(es), walker) or bracing for ambulation. Id. A 20 percent rating is appropriate for one of the following: a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. A 30 percent rating is appropriate for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. Effective February 7, 2021, for patellar instability under Diagnostic Code 5257, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a (Note 1). 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). Id. (Note 2). A 10 percent rating is appropriate 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. Id. A 20 percent rating is appropriate 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. Id. A 30 percent rating is appropriate 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. Under Diagnostic Code 5257, VA cannot categorically favor objective medical evidence over lay evidence when making a rating determination. English v. Wilkie, 30 Vet. App. 347, 35253 (2018). Further, because Diagnostic Code 5257 is not predicated on loss of range of motion, §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Code 5258 Diagnostic Code 5258 was not amended in the regulations enacted effective February 7, 2021. Under this code, a 20 percent rating is appropriate for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion in to the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5260 Diagnostic Code 5260 was not amended in the regulations enacted effective February 7, 2021. This code governs limitation of flexion of the leg. 38 C.F.R. § 4.71a. A 0 percent rating is appropriate with flexion limited to 60 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate with flexion limited to 45 degrees. Id. A 20 percent rating is appropriate with flexion limited to 30 degrees. Id. A 30 percent rating is appropriate with flexion limited to 15 degrees. Id. Diagnostic Code 5261 Diagnostic Code 5261 was not amended in the regulations enacted effective February 7, 2021. This code governs limitation of extension of the leg. 38 C.F.R. § 4.71a. A 0 percent rating is warranted for leg extension limited to five degrees. Id. A 10 percent rating is warranted for leg extension limited to 10 degrees. Id. A 20 percent rating is warranted for leg extension limited to 15 degrees. Id. A 30 percent rating is warranted for leg extension limited to 20 degrees. Id. A 40 percent rating is warranted for leg extension limited to 30 degrees. Id. A 50 percent rating is warranted for leg extension limited to 45 degrees. Id. A knee disorder can receive separate ratings based on symptoms related to arthritis, stability, flexion, and extension. Where a Veteran has degenerative joint disease which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. See VAOPGCPREC 23-97. When a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. See VAOPGCPREC 9-98. Also, a veteran may receive a rating for limitation of flexion only, limitation of extension only, or separate ratings for limitations of both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). See VAOPGCPREC 9-2004. Finally, "evaluation of a knee disability under [Diagnostic Codes] 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under [Diagnostic Codes] 5258 or 5259, and vice versa." Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim. Knees Evidence A July 2006 VA medical record describes "patellofemoral syndrome due to damage to the cartilage with the patellar groove and/or the posterior side of the patella." In a January 2010 buddy statement, TS states that the Veteran experiences chronic knee pain, hears his knees pop, that knee pain limits his ability to play with his daughter, and that knee pain makes it hard for him to get up off of the ground. In a January 2010 statement, the Veteran describes increased pain with walking long distances, with uneven surfaces, with stairs, standing, with sitting, with squatting, with stooping, and with lifting. A February 2010 VA medical record indicates passive bilateral knee flexion of 0 to 90 degrees with pain. A February 2010 VA examination indicates chronic knee pain since 1989, currently with reduced range of motion and limited endurance. The examination indicates instability, giving way, weakness, and locking episodes "several times a week." But there are no effusions and no episodes of dislocation or subluxation. Flareups occur weekly with extended use, resulting in difficulty walking and bending. Flexion is 0 to 35 degrees for the right knee and 0 to 27 degrees for the left knee. Extension is normal for both knees. There is no ankylosis. Both knees experience swelling. The Veteran always uses a cane or brace. In a February 2010 statement, the Veteran states that "both knees pop and grind" and his increasing knee pain results in altered gait and difficulty moving. An April 2010 left knee MRI report shows mild patellofemoral degenerative cartilage changes. See July 2019 VA knee examination. A May 2010 VA medical record indicates "ongoing bilateral knee pain since he was honorably discharged from the Marine Corps." Pain worsens "with squatting, deep knee bends, [going] up and down stairs, [and] rising from a seated position." These "symptoms are classic of patellofemoral pain." MRIs indicate a bilateral meniscal tear. A June 2010 VA medical record describes a "snapping" of the right knee. He additionally experiences "giving way," especially on the left side. He has experienced this pain for "years." Range of motion is 0 to 105 degrees bilaterally. A July 2010 VA medical record describes the Veteran's "right knee giving out on him and also clicking at times." In an August 2010 VA medical record, the Veteran describes "mechanical symptoms of locking and buckling of the knees." A March 2011 VA medical record indicates "mechanical symptoms of locking and buckling of the knee" and that the Veteran "wears bilateral knee braces and ambulates with a cane." An April 2011 VA medical record states that the Veteran's right knee "has approximately 90 degrees of flexion and is lacking approximately 10 degrees of full extension at this time." An April 2011 VA knee examination indicates that the Veteran "has knee brace." An April 2011 VA emergency note indicates "knee normal [range of motion]." In a June 2011 statement, the Veteran's mother describes inability to stand properly, constant limping, and severe chronic pain. In a June 2011 VA medical record, an MRI of the right knee indicates "full-thickness cartilage loss along the weight-bearing surface of the medial compartment" with "[m]ild fissuring ... within the lateral compartment cartilage." In a July 2011 statement, the Veteran states that following a right knee surgery he is "experiencing more pain as well as [his] knee still giving out." An August 2011 VA medical record states: "The new MRI several weeks ago, in June, does show that there is some cartilage loss in the medial compartment, most likely from the chondroplasty, as well as some effusion, as well as a small tear in the anterior horn of the medial meniscus.... It is felt that most likely these are post-surgical changes and not the etiology of his symptoms." A September 2011 VA medical record states that the Veteran's right knee "will bend to about 60 degrees but not much more." A September 2011 VA medical record states that the Veteran "had a knee brace in the past but it did not help." An October 2011 VA medical record indicates right knee motion to 100 degrees. For the right knee, an October 2011 VA medical record indicates "[c]artilage loss in the medial compartment with early osteophyte formation compatible with osteoarthritis." This record also indicates that for the right knee there is "full extension to 90 degrees of flexion." For the left knee, this record indicates "[m]ild patellofemoral degenerative cartilage changes as described." An October 2015 VA medical record indicates effusion of the right knee. An October 29, 2015 VA medical record indicates right knee active range of motion from 30 to 80 degrees and left knee active range of motion from 0 to 90 degrees. For both knees, there is "[n]o ligamentous instability." A February 2016 VA nursing inpatient note states that the Veteran "has full [range of motion] in all extremities." The March 23, 2016 VA knees examination indicates increased pain and functional loss after using stairs, with prolonged standing, and with prolonged walking. There is regular bucking, occasional locking, and constant bilateral swelling. For both knees, range of motion is 0 to 120 degrees. There is pain on weight bearing. The Veteran can perform repetitive-use testing with three repetitions and no loss of range of motion or functional loss. His knee disorders result in disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength is normal. There is no ankylosis. Joint stability testing is normal. There is no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran has a right-side meniscal tear with frequent episodes of joint locking and pain. He displays an antalgic gait and regularly uses a cane. His knee disorders impact his ability to work in that they lead to "pain with prolong[ed] standing 2030 minutes." An August 2016 VA medical describes the Veteran being prescribed a right knee brace following an episode of giving out at work. An August 2016 VA medical record describes "severe [right] knee pain and instability" and states that "both knees are popping and [right] knee is buckling up." In his October 2016 hearing transcript, the Veteran indicates that he had a right knee surgery in March 2011. His knee pain increases significantly during his eight-hour workday, after which he cannot keep up with his three young boys. He has been prescribed pain medicine by VA. Recently, VA fitted him for a knee brace after he went to the emergency room following his knees giving out at work. In the last year, the Veteran estimates that his knees have given out "five or six times a week" and "twice a day sometimes." Climbing stairs is difficult. He does not bend or stoop. Constant pain causes "a pronounced limp" and impacts driving. An October 2017 VA medical record indicates full range of motion for the knees with pain. A June 1, 2018 VA knee examination indicates that the Veteran's knee pain began in service. "His knees will lock up and give out at times," and he recently visited the ER because his left knee went out. Flareups are characterized by increased pain and "locking up." Functional loss is reflected by inability to run, inability to play with his children, increased pain with standing, increased pain with walking, avoiding stairs, and inability to go up and down ladders. Range of motion is 10 to 50 degrees for the right knee and 10 to 45 degrees for the left knee. This limitation of motion makes it "[h]ard to dress and bend over to pick up something off the floor or tie his shoes." The Veteran can perform repetitive-use testing with three repetitions and no loss of range of motion or functional loss. If the Veteran "walks too much his knees give way." Muscle strength is normal. There is no atrophy or ankylosis. Joint stability testing is normal. There is no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran has a right-side meniscal tear with frequent episodes of joint locking and pain. The Veteran regularly uses a brace and cane. The knee disorders impact the Veteran's ability to work in that he must avoid prolonged standing, avoid prolonged walking, avoid stairs, avoid squatting, avoid running, and avoid climbing ladders. A July 2019 VA knee examination contains the follow discussion regarding the Veteran's knee disorders: The conditions of right knee joint osteoarthritis and right knee meniscus tear are separate and distinct condition from Veteran's service-connected condition of patellofemoral pain syndrome of the right knee. The condition of right knee joint osteoarthritis and right knee meniscus tear are not part of the expected disease progression of Veteran's service-connected condition of patellofemoral pain syndrome of the right knee. The condition of left knee joint osteoarthritis is a separate and distinct condition from Veteran's service-connected condition of patellofemoral pain syndrome of the left knee. The condition of left knee joint osteoarthritis is not part of the expected disease progression of Veteran's service-connected condition of patellofemoral pain syndrome of the left knee. The July 2019 VA knee examination indicates that the Veteran has experienced knee pain since service. His "knees have continued to give out on him without warning." The Veteran does not report flareups. Range of motion is 0 to 85 degrees for the right knee and 0 to 75 degrees for the left knee. The Veteran can perform repetitive-use testing with three repetitions and no loss of range of motion or functional loss. Pain and weakness significantly limit functional ability with repeated use over time. Muscle strength is normal. There is no atrophy or ankylosis. The Veteran "declined stability testing due to current level of knee pain at the time of the exam." There is no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran has a right knee meniscal tear that displays frequent episodes of locking and pain. He regularly uses a brace. The Veteran "remains independent with ... basic activities of daily living but performs them with difficulty because of [his] knee condition." Further, because of his knee disorders he cannot "perform personal hygiene and ambulate without pain or impairment." His knee disorders impact his ability to work in that he "cannot perform tasks that require prolonged standing, prolonged walking, any degree of running or any tasks that require crawling, squatting, or stooping." Passive range of motion is 0 to 90 degrees for the right knee and 0 to 100 degrees for the left knee. The Veteran regularly uses braces bilaterally. An October 2019 VA medical record indicates "full [range of motion] both knees." In a July 2020 statement, the Veteran describes how he is "not mobile" and that his knee "pain is consistent as ever." Further, he is "having to use [his] cane and braces for stability as [he tries] to be mobile." A July 2020 VA medical record states that the Veteran has "knee braces" to "stop him from falling." A September 2020 VA medical record describes how the Veteran "has knee braces and TENS unit which don't help," in that he still experiences "intermittent buckling and painful catching." In a November 2020 VA medical record the Veteran describes "intermittent knee swelling that decreases ROM of his knee" and "[i]ntermittent locking and catching of [right] knee." In the March 2021 VA knees examination, the Veteran describes "severe pain and constant swelling and popping." The Veteran describes flareups precipitated by prolonged standing, walking, bending, kneeling, squatting, and bending. There is a history of right knee effusions. Range of motion is 0 to 90 degrees for the right knee and 0 to 100 degrees for the left knee, with identical values for active and passive motion. The Veteran can perform repetitive-use testing with three repetitions and no loss of range of motion or functional loss. With repeated use over time and during flareups, there is additional functional loss characterized by pain but no loss in range of motion. There is no ankylosis. There is no recurrent subluxation, persistent instability, or patellar instability. The Veteran regularly uses a brace and cane. The Veteran's knee disorder impacts his ability to work, in that there is "partial impairment of physical activities of employment such as running, jumping, climbing, and walking long distances." The Veteran regularly uses a right knee brace. A March 2021 VA medical record describes a visit to the ER following an exacerbation of knee pain that during range of motion exercises at a physical therapy meeting. April 2021 MRI of the knees is described as showing "[t]hinning of cartilage in the medial compartment." A July 2021 VA medical record indicates "locking and catching of [right] knee > [left] knee." An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran has a diagnosis of a left knee extension condition that incurred in or caused service. The knee and lower leg DBQ completed on 24 Mar 21 show normal active and passive extension to include after repetitive use. Based on this objective data there is no nexus in this case and the a less likely than not opinion is warranted. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran has a diagnosis of a right knee extension condition that incurred in or caused service. The knee and lower leg DBQ completed on 24 Mar 21 show normal active and passive extension to include after repetitive use. Based on this objective data there is no nexus in this case and the a less likely than not opinion is warranted. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's right knee meniscus tear was aggravated beyond its natural progression by service-connected patellofemoral syndrome of the left knee. The Veteran's meniscal tear was first was identified long after the established PFPS diagnosis. The Veteran's meniscal tear was likely due to wear and tear and overuse but aggravation by PFPS is not supported in the literature or clinical practice. Based on this there is no nexus in this case. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's right knee meniscus tear was aggravated beyond its natural progression by service-connected patellofemoral syndrome of the right knee. The Veteran's meniscal tear was first was identified long after the established PFPS diagnosis. The Veteran's meniscal tear was likely due to wear and tear and overuse but aggravation by PFPS is not supported in the literature or clinical practice. Based on this there is no nexus in this case. An August 2021 VA medical opinion reads: [I]t is at least as likely as not (>50% probability) that the Veteran has a diagnosis of patellofemoral syndrome of the right knee that incurred in or caused by knee pain during service. Reviewing the 5847 pages of the efile the Veteran was medically boarded from the USMC in 1989 due to the diagnosis of patellofemoral pain. Based on the objective data there is a clear nexus and a positive opinion is warranted in this case. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's right knee meniscus tear is proximately due to or the result of service-connected patellofemoral syndrome of the left knee. The Veteran separated from the service in 1989 and the first mention of a meniscal tear is in 2016. Significant years have passed since service and the likelihood of the PFPS leading to a meniscal tear is unlikely. What makes it even more unlikely in this case is the fact that it is the contralateral sided. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's right knee osteoarthritis was aggravated beyond its natural progression by service-connected patellofemoral syndrome of the right knee. Aggravation would imply that the OA pre-dated and PFPS and that is not the case based on the efile. The Veteran's knee OA is secondary to and not aggravated by the PFPS. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's left knee osteoarthritis was aggravated beyond its natural progression by service-connected patellofemoral syndrome of the left knee. Aggravation would imply that the OA pre-dated and PFPS and that is not the case based on the efile. The Veteran's knee OA is secondary to and not aggravated by the PFPS. An August 2021 VA medical opinion reads: [I]t is less likely than not (<50% probability) that the Veteran's right knee meniscus tear is proximately due to or the result of service-connected patellofemoral syndrome of the right knee. The Veteran separated from the service in 1989 and the first mention of a meniscal tear is in 2016. Significant years have passed since service and the likelihood of the PFPS leading to a meniscal tear is unlikely. The Veteran's PFPS most likely resulted in patellofemoral OA and maybe some other OA but it is impossible to create a nexus between PFPS and a meniscal tear. An August 2021 VA medical opinion reads: [I]t is at least as likely as not (>50% probability) that the Veteran has a diagnosis of patellofemoral syndrome of the left knee that incurred in or caused by knee pain during service. Reviewing the 5847 pages of the efile the Veteran was medically boarded from the USMC in 1989 due to the diagnosis of patellofemoral pain. Based on the objective data there is a clear nexus and a positive opinion is warranted in this case. An August 2021 VA medical opinion reads: [I]t is at least as likely as not (>50% probability) that the Veteran's left knee osteoarthritis is proximately due to or the result of service-connected patellofemoral syndrome of the left knee. Reviewing the 5847 pages of the efile the Veteran clearly has bilateral PFPS and also has some significant knee osteoarthritis. PFPS can lead to pain and osteoarthritis in the patellofemoral compartment one of the 3 compartments in the knee. It is well known in clinical practice that OA in the one compartment of the knee can lead to other. Based on the abundance of objective clinical data there is a clear nexus in this case and a positive opinion is warranted. An August 2021 VA medical opinion reads: [I]t is at least as likely as not (>50% probability) that the Veteran's right knee osteoarthritis is proximately due to or the result of service-connected patellofemoral syndrome of the right knee. Reviewing the 5847 pages of the efile the Veteran clearly has bilateral PFPS and also has some significant knee osteoarthritis. PFPS can lead to pain and osteoarthritis in the patellofemoral compartment one of the 3 compartments in the knee. It is well known in clinical practice that OA in the one compartment of the knee can lead to other. Based on the abundance of objective clinical data there is a clear nexus in this case and a positive opinion is warranted. Knees Limitation of Flexion 3. From December 9, 2009, entitlement to a rating in excess of 20 percent for patellofemoral syndrome of the left knee 4. From December 9, 2009, entitlement to a rating in excess of 20 percent for patellofemoral syndrome of the right knee Only two VA medical records identify a degree of limitation of flexion that is compensable under Diagnostic Code 5260. First, the February 2010 VA examination indicates range of motion of 0 to 35 degrees for the right knee and 0 to 27 degrees for the left knee, which is consistent with a rating of 20 percent for both knees. Second, the June 2019 VA knee examination indicates flexion of 50 degrees for the right knee and 45 degrees for the left knee, which supports a rating of 10 percent for the left knee only. By contrast, a number of VA medical records indicate noncompensable limitation of motion for the knees with pain. As described, in February 2010, bilateral range of motion is 0 to 90. In June 2010, bilateral flexion is 105. In April 2011, right knee range of motion is normal. In April 2011, right knee flexion is 90 degrees. In September 2011, right knee flexion is 60 degrees. In October 2011, separate records measure right knee flexion as 100 degrees and 90 degrees. In October 2010, right knee flexion is 80 degrees and left knee flexion is 90 degrees. In February 2016, bilateral flexion is normal. In March 2016, bilateral flexion is 120 degrees. In October 2017, bilateral flexion is normal. In July 2019, bilateral flexion is 75 degrees. In October 2019, bilateral flexion is normal. In March 2021, bilateral flexion is normal. All of these records support a rating of 10 percent based on the existence of noncompensable limitation of motion with pain. The earliest evidence of limitation of motion during flareups or after repeated use over time is the November 12, 2020 VA medical record. This record indicates "intermittent knee swelling that decreases [range of motion] of his knee." As described, VA medical cited above that immediately precede and follow this record indicate noncompensable limitation of flexion with pain. Prior to November 12, 2020, the Board finds that the preponderance of the evidence is against the existence of additional loss of range of motion during flareups or after repeated use over time. The January 2010 statements discuss limited mobility, particularly when playing with his daughter and rising from the ground. The February 2010 VA examination indicates difficulty walking during flareups and makes reference to symptoms such as instability, giving way, weakness, and locking. A May 2010 VA medical references worsening pain with specific types of motion. The March 2016 VA examination indicates increased pain after repeated use over time. In the October 2016 hearing transcript, the Veteran describes increased pain with repeated use over time. The June 2018 VA describes increased pain and locking and several functional loss symptoms, but the functional loss symptoms appear to be chronic and are not specifically noted to arise during flareups or after repeated use over time. In the July 2019 VA knee examination, the Veteran denies flareups and only notes pain and weakness as significantly limiting functional ability with repeated use over time. However, for all of these records dated prior to November 2020, there are no specific references to additional loss in range of motion during flareups or with repeated use over time. Rather, during flareups and after repeated use over time, functional loss is reflected by symptoms such as increased pain, weakness, instability, bucking, and locking. As will be explained more fully below, the Veteran is now being compensated for these symptoms through separate ratings under Diagnostic Codes 5257, 5258, and 5261. Compensating the Veteran for these symptoms a second time under Diagnostic Code 5260 would constitute the prohibited practice of pyramiding. 38 C.F.R. § 4.14. From December 9, 2009, the Board shall assign a rating of 20 percent for bilateral knee limitation of flexion. This is based on the flexion readings contained in the February 2010 VA examination. There is no evidence of additional limitation of motion during flareups or after repeated use over time so as to support a rating in excess of 20 percent during this time period. For this reason, the preponderance of the evidence is against a rating in excess of 20 percent for either knee. To the extent that such additional limitation of motion does exist after February 2010, it would be present during a time period when the Veteran's knee limitation of flexion is 45 degrees at most. Limitation of flexion of 45 degrees is consistent with a rating of 10 percent under Diagnostic Code 5260, so any additional loss in range of motion during flareups or after repeated use over time would support a rating no greater than 20 percent. For this reason also, the preponderance of the evidence is against a rating in excess of 20 percent for either knee under Diagnostic Code 5260. Knees Instability 5. From December 9, 2009, entitlement to an initial of 30 percent, but no greater, for left knee instability 6. From December 9, 2009, entitlement to an initial of 30 percent, but no greater, for right knee instability The February 2010 VA examination is the earliest record indicating knee instability. That record indicates instability, giving way, and weakness, despite the use of a cane and/or brace. Subsequent records further describe these symptoms despite use of a cane and/or brace. Consistent with this, the September 2011 VA medical record states that the Veteran "had a knee brace in the past but it did not help." A September 2020 VA medical record describes how the Veteran "has knee braces and TENS unit which don't help," in that he still experiences "intermittent buckling and painful catching." Giving the Veteran the benefit of the doubt, the Board finds that persistent giving way despite the use of braces and a cane constitutes evidence of severe instability. This evidence supports a rating of 30 percent for the period on appeal. Knees Cartilage Dislocation 7. From December 9, 2009, entitlement to an initial of 20 percent, but no greater, for left knee cartilage dislocation 8. From December 9, 2009, entitlement to an initial of 20 percent, but no greater, for right knee cartilage dislocation The evidence cited above indicates consistent evidence of locking and swelling of the bilateral knees for the period on appeal. A July 2006 VA medical record indicates bilateral knee cartilage damage. A June 2011 VA medical record indicates left knee cartilage damage only, with no such cartilage damage noted in imaging studies on the right knee. An August 2011 VA medical record indicates right knee cartilage damage, and from this time there is consistent evidence of cartilage damage in both knees. VA medical records from 2011 ascribe the Veteran's right knee cartilage damage to a March 2011. However, in light of the July 2006 VA medical record, the Board finds that the evidence is at least in equipoise with respect to the existence of bilateral knee cartilage damage prior to March 2011. The Veteran is entitled to a favorable finding with respect to with respect to the existence of cartilage damage prior to March 2011. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). Given the evidence of cartilage dislocation with locking and swelling during the period on appeal, the Board finds that the Veteran is entitled to a separate rating of 20 percent for the period on appeal. Knees Limitation of Extension 9. From April 8, 2011, to October 28, 2015, entitlement to an initial rating of 10 percent, but no greater, for right knee limitation of extension VA medical records indicate normal bilateral extension in February 2010 and June 2010. For the right knee, the earliest evidence of limitation of extension is the April 8, 2011 VA medical record, which indicates "approximately 10 degrees of full extension" for the right knee. Extension is normal in a VA emergency note dated April 2011. Giving the Veteran the benefit of the doubt, the Board shall assign an initial rating of 10 percent for the period from April 8, 2011, to October 28, 2015. As there is no evidence of extension limited to 15 degrees or more during this period, the preponderance of the evidence is against a rating in excess of 10 percent. 10. From October 29, 2015, to March 22, 2016, entitlement to a rating of 40 percent, but no greater, for right knee limitation of extension An October 29, 2015, VA medical record indicates limitation of extension of 30 degrees for the right knee, which is consistent with a rating of 40 percent. The March 23, 2016 VA knees examination indicates that the Veteran's right knee extension is normal. Giving the Veteran the benefit of the doubt in light of these records, the Board shall assign a rating of 40 percent from October 29, 2015, to March 22, 2016. Because there is no evidence of limitation of extension of 45 degrees, the preponderance of the evidence is against a rating in excess of 40 percent during this time period. 11. From March 23, 2016, to May 31, 2018, entitlement to a rating of 10 percent, but no greater, for right knee limitation of extension 12. From June 1, 2018, entitlement to a rating in excess of 10 percent for right knee limitation of extension As noted, the March 23, 2016 VA knees examination indicates that the Veteran's right knee extension is normal. Consistent with this, an October 2017 VA medical record indicates normal bilateral extension. A June 2018 VA knees examination indicates limitation of extension of 10 degrees for the right knee. Normal right knee extension is reported in the July 2019 VA knee examination, the October 2019 VA medical record, the November 2020 VA medical record, and the March 2021 VA knees examination. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran displays intermittent right knee limitation of extension not exceeding 10 degrees for the period from March 23, 2016. The Board shall assign a rating of 10 percent for this period. Because there is no evidence of extension limited to 15 degrees or more during this period, the preponderance of the evidence is against a rating in excess of 10 percent. 13. From June 1, 2018, entitlement to a rating in excess of 10 percent for left knee limitation of extension For the left knee, extension is reported as normal in the February 2010 VA examination. The same is true in VA medical records dated June 2010, April 2011, October 2015, and February 2016. Left knee extension is also reported as normal in the March 2016 VA knees examination and an October 2017 VA medical record. The first and only evidence of left knee limitation is the June 1, 2018 VA knee examination, which reports limitation of extension of 10 degrees. After this date, limitation of extension is reported as normal in the July 2019 VA knee examination, an October 2019 VA medical record, and the March 2021 VA knee examination. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran displays intermittent left knee limitation of extension not exceeding 10 degrees for the period from June 1, 2018. The Board shall assign a rating of 10 percent for this period. Because there is no evidence of extension limited to 15 degrees or more during this period, the preponderance of the evidence is against a rating in excess of 10 percent. For both knees, the evidence does not support additional staged ratings for any time period on appeal or a higher rating under a different Diagnostic Code. Further, as the Veteran's rating for each knee now exceeds 60 percent, a higher rating would not result in any greater degree of compensation. See 38 C.F.R. §§ 4.68; 4.71a, Diagnostic Code 5162. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability is remanded. In February 2017, a Board remand instructed the RO to send the Veteran a VA Form 21-8940 with instructions for filling out this form. On April 28, 2017, the RO sent the Veteran a letter containing instructions for completing a VA Form 21-8940 and a copy of this form. On May 27, 2017, this letter was returned to the RO as undeliverable. As the RO has not attempted to re-send this form to a proper address, it should do so now. Additionally, on remand the RO should obtain all relevant VA treatment records dated from October 2021 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from October 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his disorders and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. Send the Veteran a letter which provides proper and complete notice regarding the criteria necessary to substantiate a claim for TDIU. Also send the Veteran a VA Form 21-8940 with instructions for completion, and then complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational history, occupational history, and wages received. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.