Citation Nr: 21005573 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-23 489A DATE: February 2, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for left knee chondromalacia (painful motion), prior to January 17, 2013 is granted. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia (painful motion), since January 17, 2013, is denied. Entitlement to a separate disability rating of 10 percent, but no higher, for left knee disability (slight lateral instability) is granted from August 31, 2007. Entitlement to an initial rating of 10 percent, but no higher, for right knee chondromalacia (limitation of flexion and painful motion), prior to January 17, 2013, is granted. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia (limitation of flexion and painful motion), since January 17, 2013, is denied. Entitlement to a separate disability rating of 10 percent rating, but no higher, for right knee disability (slight lateral instability) is granted from August 31, 2007. Entitlement to a separate disability rating of 10 percent, but no higher, for right knee disability (removal of semilunar cartilage right knee, which is symptomatic), is granted from August 31, 2007. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From August 31, 2007 to January 16, 2013, the Veteran’s left knee disability has manifested with painful limitation of motion. 2. For the entire period on appeal, the Veteran’s left knee disability has not manifested with extension limited to 10 degrees or flexion limited to 45 degrees. 3. Resolving all reasonable doubt in his favor, for the entire period on appeal, the Veteran’s left knee disability has manifested with slight lateral instability. It has not, at any time, been found to manifest with moderate recurrent subluxation or lateral instability. 4. From August 31, 2007 to January 16, 2013, the Veteran’s right knee disability has manifested with painful limitation of motion. 5. For the entire period on appeal, the Veteran’s right knee disability has not manifested with extension limited to 10 degrees, and flexion has manifested to no worse than 40 degrees. 6. Resolving all reasonable doubt in his favor, for the entire period on appeal, the Veteran’s right knee disability has manifested with slight lateral instability. It has not, at any time, been found to manifest with moderate recurrent subluxation or lateral instability. 7. Resolving all reasonable doubt in his favor, for the entire period on appeal, the Veteran’s right knee disability post meniscectomy has manifested with symptoms of locking, grinding, stiffness, and swelling. The Veteran has not had frequent episodes of dislocated semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent, but no higher, for the period on appeal prior to January 17, 2013 for left knee chondromalacia (painful motion) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to a rating in excess of 10 percent for the period on appeal beginning January 17, 2013 for left knee chondromalacia (painful motion) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for entitlement to a separate initial rating of 10 percent, but no higher, for left knee disability (slight lateral instability) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement to an initial rating of 10 percent, but no higher, for the period on appeal prior to January 17, 2013 for right knee chondromalacia (limitation of flexion with painful motion) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for entitlement to a rating in excess of 10 percent for the period on appeal beginning January 17, 2013 for right knee chondromalacia (limitation of flexion with painful motion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 6. The criteria for entitlement to a separate initial rating of 10 percent, but no higher, for right knee disability (slight lateral instability) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. The criteria for entitlement to a separate initial rating of 10 percent, but no higher, for right knee disability post meniscectomy with symptoms of locking, grinding, stiffness, and swelling have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1978 until his honorable discharge in August 1985. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for chondromalacia, bilateral knees with an evaluation of 0 percent, effective August 31, 2007. In an April 2013 rating decision, the RO increased the disability evaluation for chondromalacia left knee to 10 percent disabling effective January 17, 2013, and increased the disability evaluation for chondromalacia right knee to 10 percent disabling effective January 17, 2013. In May 2012, July 2016, and May 2019, the Board remanded the claims for further development. The matter has now been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the remand. Thus, no further action is required. Stegall v. West, 11 Vet. App. 268 (1998). Initial Higher Ratings The Veteran contends his left and right knee disabilities are more severely disabling than represented by the disability evaluations assigned at all times during the appeal. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Musculoskeletal Disabilities Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. When evaluation musculoskeletal disabilities based on limitations of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. The Left and Right Knee Disabilities The Veteran’s bilateral chondromalacia is currently rated as noncompensable prior to January 17, 2013 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5014. The Veteran’s left knee chondromalacia is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260, since January 17, 2013. The Veteran’s right knee chondromalacia is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260, since January 17, 2013. The 10 percent ratings were assigned based on objective findings of pain upon palpation of the left knee and right knee pursuant to 38 C.F.R. § 4.59. Under DC 5014, osteomalacia is rated based on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under DC 5002. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disabilities. Under DC 5256, a 30 percent rating may be assigned for ankylosis of knee at favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating may be assigned for ankylosis of knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of knee in flexion between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Words such as “slight”, “moderate”, and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, removal of the semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5259. Under DC 5260, limitation of flexion of leg with flexion limited to 60 degrees warrants a 0 percent rating; with flexion limited to 45 degrees warrants a 10 percent rating; with flexion limited to 30 degrees warrants a 20 percent rating; and with flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of leg with extension limited to 5 degrees warrants a 0 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71a, Plate II. Under DC 5262, a 10 percent rating is available when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, DC 5262. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). 38 C.F.R. § 4.71a, DC 5263. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court held that in cases where the record reflects that the appellant has multiple problems due to a service-connected disability, is it possible for an appellant to have “separate and distinct manifestations” from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). The appellant must not assume the Board has overlooked evidence not explicitly discussed herein. Facts In his November 2007 statement, the Veteran reported a worsening of his bilateral knee disability. He described severe “trick” and “locked knees” resulting from chondromalacia. He stated his knees will often lock, to the point he must stop whatever he is doing and try to “reorganize the bone and tendons in and around the knee.” In May 2009 the Veteran underwent a VA examination. A diagnosis of bilateral mild chondromalacia patella with status post meniscectomy of the right knee was made. During the examination the Veteran reported a long history of bilateral knee pain and right knee surgery of the meniscus. The Veteran reported swelling in the right knee and stated it will “lock up” daily. Physical examination of the left knee revealed range of motion for flexion was measured from 0 degrees to 130 degrees, and extension was normal to 0 degrees with no objective evidence of pain with active motion on flexion or extension. There was no additional limitation with repetitive motion. The examiner noted left knee symptoms including pain, stiffness, daily locking episodes, and constant effusions. The examiner noted flare-ups to a moderate level of severity occurring every 1 to 2 months and lasting 1 to 2 days; flare-ups were precipitated by prolonged walking and alleviated by rest, elevation and pain medication. Physical examination of the right knee revealed range of motion for flexion was measured from 0 to 130 degrees, and extension was normal to 0 degrees with no objective evidence of pain with active motion on flexion or extension. There was no additional limitation with repetitive motion. The examiner noted right knee symptoms including giving way, pain, stiffness, weakness, constant effusion, and swelling. The examiner noted flare-ups to a moderate level of severity occurring every 1 to 2 months lasting 1 to 2 days; flare-ups were precipitated by prolonged walking and alleviated by rest, elevation, and pain medication. The examiner also noted right knee joint findings of crepitus, grinding, and meniscus abnormality. Lastly, the examiner reported the Veteran’s knee disabilities impact his ability to perform activities of daily living, including chores, exercise, sports, and recreation. In his July 2009 notice of disagreement, the Veteran reported he experienced chronic bilateral knee pain. In his February 2010 correspondence, the Veteran reported excruciating bilateral knee pain. He stated his knees were “unpredictable” and will “lock up” without notice. He reported his normal range of motion was greatly reduced to less than 40 degrees each day. Along with this correspondence, the Veteran submitted a February 2009 clinical record (Brace and Limb Clinic Note), assessing status post right knee surgery with patella instability; order right knee patella stabilizer. In February 2012, the Veteran submitted “Buddy Statements” from J.J. and H.W. to support the finding the Veteran had symptoms of chronic bilateral knee pain and instability. In his statement, J.J. stated he and the Veteran had been friends for over six years and during this time he observed the Veteran’s bilateral knee problems. J.J. stated the Veteran had to wear medical boots and special knee braces for stability. J.J. stated when the Veteran’s knees are at their worst, he can hardly bend at the knee and his range of motion is next to zero. See January 2012 Correspondence. In his statement, H.W. stated he and the Veteran had been friends for several years. H.W. stated he had the opportunity to witness the Veteran’s knee problems. H.W. stated the Veteran suffered with knee problems and was required to wear medical boots and knee braces for stability. See January 2012 Correspondence. In accordance with the May 2012 Board remand, the Veteran was afforded a VA examination in January 2013. The Veteran reported chronic and constant bilateral knee pain. He stated he was no longer able to work on jobs demanding kneeling or prolonged standing. He did not report flare-ups. The Veteran refused both physical range of motion testing and imaging recommendation stating, “my knee is in too much pain already; it is unstable.” The examiner noted the Veteran presented wearing a right knee brace. The examiner stated the Veteran had functional loss/functional impairment of the knees described as pain on movement. He had tenderness or pain to palpation for joint line or soft tissue of bilateral knees. Joint stability tests were not performed. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner confirmed the Veteran had a right knee meniscus condition with frequent episodes of joint pain and instability. The examiner noted the constant use of knee braces. The examiner stated the Veteran’s knee conditions impact his ability to work because of his inability to kneel and limited prolonged walking or standing. In February 2013, the Veteran reported he was unable to obtain pain medication or other palliative care for his chronic conditions and suffers pain, weakness, instability, and fatigue of his knees. In accordance with the July 2016 Board remand, the Veteran attended a new VA examination in October 2018. The Veteran reported knee popping, locking, grinding, stiffness, and swelling. He reported flare-ups and functional loss, reporting difficulty with long distance ambulation and standing for prolonged periods of time. The examiner noted the range of motion testing was abnormal as the left knee revealed flexion measured to 50 degrees, and extension to 0 degrees. The examiner stated the range of motion itself contributes to functional loss reported as difficulty in long distance ambulation, standing for prolonged periods of time, and difficulty in squatting or rising from a seated position. Pain was noted on flexion and extension. Repetitive motion testing revealed no additional functional loss or range of motion after three repetitions. The examiner opined pain, fatigue and weakness would significantly limit functional ability with repeated use over a period of time, which the examiner described in terms of range of motion as flexion to 50 degrees, and extension to 0 degrees. The exam was not conducted during a flare-up. The examiner opined pain, fatigue and weakness would limit functional loss, which the examiner described in terms of range of motion as flexion to 50 degrees, and extension to 0 degrees. Additional factors contributing to the disability were less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. The examiner found there was no history of recurrent subluxation or history of lateral instability. Joint stability testing revealed all stability was within normal limits. The examiner noted the range of motion was abnormal as the right knee revealed flexion measured to 40 degrees, and extension to 0 degrees. The examiner stated the range of motion itself contributes to functional loss reported as difficulty in long distance ambulation, standing for prolonged periods of time, and difficulty in squatting or rising from a seated position. Pain was noted on flexion and extension. Repetitive motion testing revealed no additional functional loss or range of motion after three repetitions. The examiner opined pain, fatigue and weakness would significantly limit functional ability with repeated use over a period of time, which the examiner described in terms of range of motion as flexion to 40 degrees, and extension to 0 degrees. The exam was not conducted during a flare-up. The examiner opined pain, fatigue and weakness would limit functional loss described in terms of range of motion as flexion to 40 degrees, and extension to 0 degrees. Additional factors contributing to the disability were less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. The examiner found there was no history of recurrent subluxation or history of lateral instability. Joint stability testing revealed all stability was within normal limits. The Veteran had a meniscus condition of right knee meniscectomy with symptoms of pain and locking. The examiner stated the Veteran experiences bilateral pain and locking attributable to the diagnosed bilateral chondromalacia. The examiner noted the Veteran’s constant use of braces for bilateral knee chondromalacia. Regarding Correia, there was no evidence of pain on passive range of motion testing and no evidence of pain when the joint was used in non-weight bearing. Lastly, the examiner reported the Veteran’s bilateral knee disability impacts his ability to work because the Veteran would have difficulty with climbing steps and ladders, long distance ambulation, standing for prolonged periods of time, and squatting or rising from the floor. In his November 2018 correspondence, the Veteran stated he is wholly unable to work due to his bilateral knee disabilities. He reported the use of knee braces, as well as medical boots, for stability. In July 2019, an addendum opinion was secured. In order to comply with Sharp, 29 Vet. App. 26, the examiner was asked to provide rationale for finding there was no additional loss of motion during flare-ups of the Veteran’s knee disabilities. The July 2019 examiner opined an individual can have a flare-up and not have any decrease in range of motion; it can be manifested in other ways such as inability to rise from a sitting position or squatting down. In July 2020, an additional addendum opinion was secured in or to reconcile the October 2018 VA examiner’s finding of no bilateral knee instability, although treatment records and lay statements indicate bilateral knee instability. The July 2020 examiner stated, because there was no instability on the October 2018 examination report, the examiner did not believe the Veteran had instability at that time. The examiner continued, stating, the Veteran may have instability now, or before the October 2018 examination. 1. Entitlement to an increased rating for left knee chondromalacia, rated as 0 percent disabling from August 31, 2007 to January 17, 2013, and as 10 percent disabling thereafter. As noted above, the Veteran’s left knee chondromalacia is currently rated as noncompensable prior to January 17, 2013 under DC 5014, and as 10 percent disabling since January 17, 2013 under DC 5260. The 10 percent rating was assigned based on objective findings of pain upon palpation of the left knee pursuant to 38 C.F.R. § 4.59. During the May 2009 examination, the Veteran demonstrated left knee flexion to 130 degrees and extension to 0 degrees. He reported a long history of left knee pain. The examiner noted left knee symptoms including pain, stiffness, daily locking episodes, constant effusions, and flare-ups. During the January 2013 examination, the Veteran reported chronic and constant, bilateral knee pain. The Veteran refused physical range of motion testing. He had tenderness or pain to palpation for joint line or soft tissue of bilateral knees. The October 2018 examiner noted range of motion was abnormal as the left knee revealed flexion to 50 degrees, and extension to 0 degrees. Pain was noted on flexion and extension. Repetitive motion testing revealed no additional functional loss or range of motion after three repetitions. The examiner opined pain, fatigue and weakness would significantly limit functional ability with repeated use over a period of time described in terms of range of motion as flexion to 50 degrees, and extension to 0 degrees. The exam was not conducted during a flare-up. The examiner opined pain, fatigue and weakness would limit functional loss described in terms of range of motion as flexion to 50 degrees, and extension to 0 degrees. Given the totality of the evidence when considering the Veteran’s competent and credible report of limited left knee motion, stiffness, and pain, combined with his consistent reports of flare-ups, the Board finds a 10 percent rating, but no higher is warranted from August 31, 2007. The Veteran has had some painful limitation of motion throughout the entire period on appeal, and his currently noncompensable rating from August 31, 2007 to January 17, 2013 should be increased to the minimum compensable rating, 10 percent. See 38 C.F.R. § 4.45. In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of weakened movement, excess fatigability, and incoordination under 38 C.F.R. § 4.45. The Board accepts the Veteran’s competent and credible assertions that his left knee is painful and as described in VA examinations, he suffers from additional loss of motion and pain during flare-ups. The Veteran has experienced pain and pain on motion. The Board also finds the Veteran’s own reports of symptomatology to be credible and has considered the functional impact of the Veteran’s pain. The Veteran therefore had a limitation of motion which is painful, and although not limiting motion to such an extent that a compensable rating is warranted under DCs 5260 and 5261, a rating of 10 percent, but no higher, for painful motion under 38 C.F.R. § 4.45 prior to January 17, 2013 can be assigned. The Board does not find, however, that a rating higher than 10 percent for limitation of motion is warranted at any time during the entire appeal period, August 31, 2007 to the present. The Veteran’s left knee disability has never been found to have a decreased limitation of extension, and the worst findings of limitation of flexion was at the October 2018 VA examination, which found flexion to 50 degrees, including with repetitive motion and with flare ups. The Veteran has never been found to have flexion limited to 45 degrees or less or extension limited to 10 degrees or less. There is no other medical evidence indicating any further restriction in range of motion which would allow for a compensable rating under Diagnostic Codes 5260 or 5261 at any time. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 5 degrees. The record reflects that, at worst, flexion was limited to 50 degrees in October 2018 and extension has been full, to 0 degrees. The Veteran has now been assigned at least the minimum evaluation, and without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran’s was pain is so disabling as to actually or effectively limit flexion or extension of the knee to such an extent as to warrant assignment of a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44. 2. Entitlement to the assignment of a separate disability rating of 10 percent for slight lateral instability is granted. Based on the above, the assignment of a separate 10 percent rating under DC 5257 is warranted for left knee instability for the entire period on appeal. The Veteran has reported knee laxity symptomology. In November 2007, the Veteran reported his left knee often “locks in place.” He described severe trick and locked knee. The May 2009 VA examiner noted left knee joint findings of pain, stiffness, locking, effusions, and crepitus. During the January 2013 examination, the Veteran reported chronic knee pain and instability. The October 2018 VA examiner stated the Veteran experiences bilateral pain and locking attributable to the diagnosed bilateral chondromalacia. The examiner also noted the Veteran’s constant use of braces for bilateral knee chondromalacia. The Veteran is competent to report observable symptoms of his left knee disability, such as instability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran’s reports regarding his instability are credible, as his statements have remained consistent throughout the appeal period. Therefore, considering the Veteran’s competent and credible reports of left knee instability, and a finding he requires a brace for ambulation, a separate 10 percent rating under DC 5257 for slight lateral instability is warranted. See English v. Wilkie, 30 Vet. App. 347, 349 (2018). Rating higher than 10 percent for left knee instability is not warranted, as there is no history of moderate recurrent subluxation or lateral instability of the left knee joint. Also, stability testing was normal throughout the appeal period. In the absence of any clinically observable symptoms of instability or laxity, the Board does not find that the Veteran’s lay assertions are sufficient to establish an even higher level of instability. While the Veteran sometimes wears knee braces, he continues to be able to ambulate independently, and there is no indication that he has had instability symptoms that have led to falls or walking impairment. This is also consistent with the Veteran’s lay statements, which is that he feels unstable and uses a brace to help with stability, but he has not had any major functional impairment from instability alone. Therefore, the Veteran’s left knee instability is not found to more nearly approximate moderate instability. The Board has also considered whether any other, additional diagnostic codes can be applied to the Veteran’s left knee disabilities, but finds that they do not. Rating under DCs 5256, 5258, 5259, 5262, and 5263 is inappropriate in this case as the Veteran’s left knee disability does not include the pathology required in the criteria for those diagnostic codes. 38 C.F.R. § 4.71a. 3. Entitlement to an increased rating for right knee chondromalacia, rated as 0 percent disabling from August 31, 2007 to January 17, 2013, and as 10 percent thereafter. As noted above, the Veteran’s right knee chondromalacia is currently rated as noncompensable prior to January 17, 2013 under DC 5014, and as 10 percent disabling since January 17, 2013 under DC 5260. The 10 percent rating was assigned based on objective findings of pain upon palpation of the right knee pursuant to 38 C.F.R. § 4.59. Initially, the Board notes the Court in Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) held “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” During the May 2009 examination, the Veteran demonstrated right knee flexion measured to 130 degrees and extension to 0 degrees. He reported a long history of right knee pain. During the January 2013 examination, he reported ongoing, chronic and constant bilateral knee pain. The Veteran refused physical range of motion testing. He had tenderness or pain to palpation for joint line or soft tissue of bilateral knees. The October 2018 examiner noted range of motion was abnormal, as the right knee revealed flexion measured to 40 degrees, and extension to 0 degrees. Pain was noted on flexion and extension. Repetitive motion testing revealed no additional functional loss or range of motion after three repetitions. The examiner opined pain, fatigue and weakness would significantly limit functional ability with repeated use over a period of time and with flare ups, but would still result in flexion to 40 degrees and extension to 0 degrees. Given the totality of the evidence when considering the Veteran’s competent and credible report of limited right knee motion, stiffness, and pain, combined with his consistent reports of flare-ups, the Board finds a 10 percent rating, but no higher is warranted from August 31, 2007. In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of weakened movement, excess fatigability, and incoordination under 38 C.F.R. § 4.45. The Board accepts the Veteran’s competent and credible assertions that his right knee is painful and as described in VA examinations, he suffers from additional loss of motion and pain during flare-ups. The evidence additional loss of motion and pain during flare-ups. The evidence demonstrates limitation of flexion that more nearly approximates 40 degrees and limitation of extension that more nearly approximates 0 degrees. See DeLuca, 8 Vet. App. at 205-06; see also Mitchell, 25 Vet. App. at 38; Sharp, 29 Vet. App. at 33. As such, a rating of 10 percent, but no higher, is warranted for the entire appeal period. The Board does not, however, find that a rating higher than 10 percent is warranted at any time throughout the appeal period. While the Veteran was found to have flexion limited to 40 degrees in the right knee at the October 2018 VA examination, he has now already been assigned a 10 percent rating for limitation of motion, and there is no indication that he has ever had motion limited to greater than that, including with flare ups or after repeated motion. The Veteran has never had extension limited beyond 0 degrees, which would allow for a separation rating based on limitation of flexion. He has also never had flexion limited to 30 degrees, which is the criterion required for a higher, 20 percent rating. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees, or extension limited to 5 degrees. The record reflects that, at worst, flexion was limited to 40 degrees in October 2018, and extension has been full to 0 degrees. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. However, increased evaluation for the Veteran’s knee disabilities are not warranted on the basis of functional loss due to pain or weakness or excess fatigability, as his symptoms are supported by pathology which does not indicate that a rating higher than 10 percent is warranted. Although the Veteran’s painful motion is significant, there is no indication that it has resulted in further limitation of motion than what was shown on examination, and without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran’s was pain is so disabling as to actually or effectively limit flexion or extension of the right knee to such an extent as to warrant assignment of a higher or additional rating. 4. Entitlement to the assignment of a separate disability rating of 10 percent for slight lateral instability is granted. Based on the above, the assignment of a separate 10 percent rating under DC 5257 is warranted for right knee instability. The Veteran has reported knee laxity symptomology. In November 2007, the Veteran reported his right knee often “locks in place.” During the May 2009 VA examination, the examiner noted right knee symptoms including giving way and weakness. During the January 2013 VA examination the Veteran presented wearing a right knee brace. During the most recent October 2018 VA examination, the examiner stated the Veteran experiences bilateral pain and locking attributable to the diagnosed bilateral chondromalacia. The examiner also noted the Veteran’s constant use of braces for bilateral knee chondromalacia. The Veteran is competent to report observable symptoms of his right knee disability, such as instability. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331. The Veteran’s reports regarding his instability are credible, as his statements have remained consistent throughout the appeal period. Therefore, considering the Veteran’s competent and credible reports of right knee instability, and a finding he requires a brace for ambulation, a separate 10 percent rating under DC 5257 for slight lateral instability is warranted. See English, 30 Vet. App. at 349. Rating higher than 10 percent for right knee instability is not warranted, as there is no history of moderate recurrent subluxation or lateral instability of the right knee joint, and stability testing was normal throughout the appeal period. In the absence of any clinically observable symptoms of instability or laxity, the Board does not find that the Veteran’s lay assertions are sufficient to establish a higher level of instability. The Veteran’s lay statements are also found to be consistent with a mild level of instability, which is assisted with a brace but has not resulted in major functional impairment. Therefore, the Veteran’s right knee instability did not more nearly approximate moderate instability. 5. Entitlement to the assignment of a separate rating of 10 percent for removal of semilunar cartilage, which is symptomatic, is granted. Based on the above, the assignment of a separate 10 percent rating under DC 5259 is warranted for removal of semilunar cartilage, which is symptomatic. The Veteran underwent a meniscectomy procedure to the right knee in 1992. In determining whether a separate rating is warranted under DC 5258 and 5259, the Board must decide whether separate and distinct symptoms exist or whether there is overlapping symptomatology such that only a single rating is appropriate. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. Esteban, 6 Vet. App. 259. Under DC 5258, a 20 percent rating is assigned for dislocated cartilage of the knee, with frequent episodes of locking, pain, and effusion into the joint. Under DC 5259, removal of cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a. The Board finds the Veteran has been shown to have had meniscectomy (surgical removal of all or part of a torn meniscus) surgery of the right knee in 1992, and he has continued to experience symptoms of pain, stiffness, weakness, effusion, swelling, and locking. The Board finds, a separate rating under DC 5258 is not warranted because the Veteran has not had dislocated cartilage of the knee nor frequent episodes of locking, pain, and effusion into the joint. However, the Board finds a separate 10 percent disability rating under DC 5259 for symptomatic meniscectomy of the right knee is warranted. Although separate ratings under 5259 and 5260 can constitute impermissible pyramiding, the Board finds that in the facts of this specific case, a separate rating under DC 5259 is not precluded. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (evaluation of a knee disability under the limitation of motion diagnostic codes does not, as a matter of law, preclude separate evaluation of a meniscal disability of same knee under DC 5258 or 5259, and vice versa). Under DC 5260, as discussed above, the Veteran is compensated for limitation of motion with functional loss due to pain. The Board finds a separate rating under DC 5259 for the right knee disability is warranted for the Veteran’s other reported symptoms. Rating under DCs 5256, 5262, and 5263 is inappropriate in this case as the Veteran’s right knee disability does not include the pathology required in the criteria for those diagnostic codes. 38 C.F.R. § 4.71a. REMAND The claim of entitlement to a TDIU is remanded. The Veteran has raised an informal claim of entitlement to a TDIU due to his service-connected knee disabilities, and he contends he is unemployable. See November 2018 Correspondence. The issue of whether entitlement to a TDIU is warranted as a result of a service-connected disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue is included as noted on the title page of this decision and is remanded for proper development. The matter is REMANDED for the following action: 1. Provide the Veteran with notice of the requirements to substantiate a claim for TDIU, including a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Complete all appropriate development for the issue of entitlement to a TDIU and adjudicate the issue. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.