Citation Nr: 21008678 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-24 233A DATE: February 17, 2021 ISSUES 1. Entitlement to an initial compensable evaluation based on limitation of the extension of the right knee prior to July 12, 2013 and in excess of 20 percent thereafter. 2. Entitlement to an increased rating in excess of 10 percent prior to July 12, 2013 for the residuals of mild, meniscectomy, right knee and in excess of 20 percent thereafter. 3. Entitlement to an initial compensable rating for right knee lateral instability prior to July 12, 2013 and in excess of 10 percent thereafter. 4. Entitlement to a total disability rating for individual unemployability (TDIU). ORDER Entitlement to an initial compensable rating for limitation of right knee extension prior to July 12, 2013, and in excess of 20 percent thereafter is denied. Entitlement to an increased rating of 20 percent, and no higher, for the residuals of mild, meniscectomy, right knee (cartilage semilunar, dislocated with frequent episodes of locking pain and effusion into the joint), from January 20, 2011 to July 12, 2013 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for the residuals of mild, meniscectomy, right knee (cartilage semilunar, dislocated with frequent episodes of locking pain and effusion into the joint) from July 12, 2013 is denied. Entitlement to an initial compensable rating of 20 percent, and no higher, for right knee lateral instability, from January 20, 2011 to July 12, 2013 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent, for right knee lateral instability from July 12, 2013 is denied. Entitlement to TDIU on a schedular basis is granted, effective July 12, 2013, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to TDIU on an extraschedular basis prior to July 12, 2013 is remanded. FINDINGS OF FACT 1. Prior to July 12, 2013, the Veteran right knee is productive of extension, normal, with flexion limited to 90 degrees. No extension is limited by 5 degrees. 2. From July 12, 2013, the Veteran’s right knee disability has been manifested by complaints of pain and difficulty with prolonged standing and walking; objective findings included flexion to no worse than 55 degrees even with pain and following repetition and flare-ups; extension to no worse than 15 degrees even with pain and following repetition. No ankylosis. 3. From January 20, 2011, the Veteran’s right knee disability has been productive of cartilage, semilunar, dislocated with frequent episodes of locking pain and effusion into the joint. 4. From January 20, 2011, the Veteran is in receipt of the highest disability rating under DC 5258 for the residuals of mild meniscectomy (cartilage semilunar, dislocated with frequent episodes of locking pain and effusion into the joint); the evidence of record does not reflect that the right knee is ankylosed. 5. The Veteran's right knee disability is productive of moderate instability symptoms from January 20, 2011; Severe instability has not been found. 6. The available evidence demonstrates that the Veteran was unemployed and unable to secure or follow a substantially gainful occupation due to his service-connected disabilities alone as of July 12, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for limitation of right knee extension, prior to July 12, 2013 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5261. 2. The criteria for a rating in excess of 20 percent for limitation of right knee extension, from July 12, 2013 to the present, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5261. 3. The criteria for an initial 20 percent rating, and no higher, for the Veteran’s residuals, mild meniscectomy right knee (cartilage semilunar, dislocated with frequent episodes of locking pain and effusion into the joint) have been met from January 20, 2011. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5258. 4. The criteria for a rating in excess of 20 percent for the Veteran’s residuals, mild meniscectomy right knee (cartilage semilunar, dislocated with frequent episodes of locking pain and effusion into the joint) have not been met from July 12, 2013. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5258. 5. The criteria for a 20 percent rating for lateral instability of the right knee, and no higher, have been met from January 20, 2011 to July 12, 2013. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5257. 6. The criteria for a disability rating in excess of 20 percent rating for lateral instability of the right knee, have not been met from July 12, 2013. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5257. 7. The schedular criteria for entitlement to TDIU have been met, effective July 12, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.19, 4.25, 3.340, 3.341. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1965 to September 1967 and was awarded the National Defense Service Medal. This case comes before the Board of Veterans' Appeals (the Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. By way of background, the Veteran was granted service connection in a February 1968 Rating decision for the residuals of right knee, mild meniscectomy, effective September 26, 1967. The Veteran was assigned a 10 percent rating. See February 29, 1968 Rating decision. In a July 2011 rating decision, the Veteran’s evaluation of the residuals, mild, meniscectomy, right knee was continued. See July 2011, 2011 Rating Decision. In August 2011, the Veteran filed a Notice of Disagreement (NOD) with regards to this July 2011 Rating decision. See August 4, 2011 NOD. In an October 2013 rating decision, the RO granted the Veteran separate ratings for (1) right knee osteoarthritis with limitation of extension, assigning a 20 percent rating, effective July 12, 2013, and for (2) right knee slight lateral instability, assigning a 10 percent rating, effective July 12, 2013. See October 28, 2013 Rating Decision. In a November 2013 rating decision, the RO increased the evaluation of the Veteran's (3) residuals, mild meniscectomy, right knee, currently rated at 10 percent disabling to 20 percent, effective July 12, 2013. Regardless of the RO's actions, the issue regarding this Veteran’s right knee disability remains before the Board because the increased rating was not a complete grant of the maximum benefits available for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In an October 2016 decision, the Board in pertinent part, remanded the Veteran’s claim for the purpose VA examination consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that VA examinations for musculoskeletal disabilities should include joint testing for pain on both active and passive motion and on weight bearing and non-weight bearing). The Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that the Veteran has been granted service connection for limitation of flexion, right knee, with an evaluation of 0 percent, effective February 19, 2019. The Veteran also has been granted service connection for anterior medial right knee scar of meniscectomy associated with residuals, mild, meniscectomy, right knee from February 12, 2019. See November 9, 2020 Rating Decision. To date, the Veteran has not expressed any disagreement with the February 2019 and November 2020 rating decisions. As such, the Board finds that those issues are not on appeal and this time and will only be discussed to the extent that a VA examination report depicts right knee flexion and extension. Lastly, the Board notes that in a November 2020 rating decision, the Veteran was granted service connection for lumbosacral strain, myositis and spondylosis (claimed as a back condition). As this constitutes a full grant of the claim, this issue is no longer before the Board. See November 9, 2020 Rating Decision. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c) (2018). 38 U.S.C. § 7107 (a) (2) (West 2014). The Board also notes that the criteria for rating musculoskeletal disabilities were amended during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the pendency of an appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma, 341 F.3d 1327. The Board finds that the amended rating criteria for musculoskeletal do not affect the Veteran's claim and, thus, the old regulations on musculoskeletal disabilities will be applied for consistency in adjudication throughout the entire period on appeal. 1. Entitlement to an initial compensable evaluation based on limitation of the extension of the right knee prior to July 12, 2013 and 20 percent thereafter. 2. Entitlement to an increased rating in excess of 10 percent prior to July 12, 2013 for the residuals of mild, meniscectomy, right knee and 20 percent thereafter. 3. Entitlement to an initial compensable rating for right knee lateral instability prior to July 12, 2013 and excess of 10 percent thereafter. The Veteran contends that he is entitled to a higher rating for his right knee disability. See August 4, 2011 NOD; See also January 24, 2021 Informal Hearing Presentation (IHP). As noted in the introduction of this decision, the Veteran has been granted separate ratings for (1) right knee osteoarthritis limitation of extension, and (2) right knee slight instability. Additionally, the rating for the Veteran residuals of mild meniscectomy was increased, effective July 12, 2013—the date of the VA examination. See July 12, 2013 Rating Decision The Board notes however that the rating period on appeal also encompasses the period prior to July 12, 2013 for the Veteran’s right knee claim filed on January 27, 2011 and up to one year prior. See 38 C.F.R. § 3.400 (o)(2). Hence, the Board’s discussion below will entail the period prior to July 12, 2013 and thereafter with respect to his right knee disability. Disability Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.321 (a), 4.1 (2018). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficient characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Musculoskeletal system Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to those elements. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2018). The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45 (2018). The Veteran’s right knee is currently rated for at 20 percent (DC 5261 ) for limitation of extension of the right knee; 20 percent (DC 5258) for cartilage, semilunar dislocated, with frequent episodes of locking, pain and effusion; and 10 percent (DC 5257) for lateral instability. Under Diagnostic Code 5260, used for rating limitation of flexion of a knee, a 10 percent rating is warranted for knee flexion limited to 45 degrees. A 20 percent rating is warranted for knee flexion limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (2018). With regard to limitation of extension, a 10 percent rating is warranted for knee extension limited to 10 degrees. A 20 percent rating is warranted for knee extension limited to 15 degrees. A 30 percent rating is warranted for knee extension limited to 20 degrees. A 40 percent rating is warranted for knee extension limited to 30 degrees. A maximum 50 percent rating is warranted for knee extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2018). Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but only where the criteria for a compensable rating are met under each Diagnostic Code. VAOGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). A claimant who has arthritis or limitation of motion and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). Instability Under Diagnostic Code 5257 (Knee, other impairment of), recurrent subluxation or lateral instability of the knee that is slight warrants a 10 percent rating; that is moderate warrants a 20 percent rating; and that is severe warrants a 30 percent rating. Other diagnostic codes relating to the knee are Diagnostic Codes 5256 (ankylosis), 5257 (instability), 5258 and 5259 (symptomatic dislocation or removal of semilunar cartilage), 5262 (impairment of the tibia and fibula) and 5263 (genu recurvatum). DC 5258 contemplates a maximum 20 percent rating for dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. DC 5257 and DC 5258-9 both contemplate disabilities of the knee manifested by instability. DC 5257 contemplates impairment of the knee manifested by recurrent subluxation or lateral instability. Where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. Under DC 5259, a maximum 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. That is, there are two requirements for a compensable rating under DC 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. Looking to the plain meaning of the terms used in the rating criteria, "symptomatic" means indicative, relating to or constituting the aggregate of symptoms of disease. STEDMAN'S MEDICAL DICTIONARY, 1743 (27th ed., 2000). A symptom is any morbid phenomenon or departure from the normal in a structure, function, or sensation, experienced by a patient and indicative of disease. Id. at 1742. Thus, DC 5259's second requirement of being "symptomatic" is broad enough to encompass all symptoms, including instability. DC 5258 contemplates a maximum 20 percent rating for dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. Discussion The Board now turns to the evidence of record in the evaluation of this Veteran’s claim. The Board will first begin with a discussion of the evidence for purposes of substantiating the Veteran’s claim. Next, the Board will proceed to an analysis of the issues as outlined on the title page of this decision. The last section of this decision will address the Veteran’s TDIU claim. The Veteran submitted correspondence in January 2011 from a treating physician which indicated that the Veteran presents with episodes of right knee pain and instability recurrent episodes of locking' and has clicking and catching in his knee. The Veteran also presented with difficulty when climbing stairs and prolonged walking. The Veteran presented with episodes of crepitance of his right knee. The Veteran also presented with right knee pain and bilateral knee swelling. He also presented with numbness and pinprick sensation at his lower extremities. See January 20, 2011 Correspondence (N.A.O., MD). In June 2011, the Veteran was afforded a June 2011 Knee and Lower Leg examination. The examiner noted that the Veteran had a history of bilateral knee pain. History of right knee meniscectomy. See June 8, 2011 Knee and Lower Leg examination, pg. 2. The examiner reported problems associated with the diagnosis of bilateral knee condition effect on usual occupation. The examiner reported the impact on occupational activities included decreased mobility and with the resulting work problem: increased absenteeism; Id. at 7. Regarding flare-ups, the Veteran reported that he did experience flare-ups. Flare-ups were described as severe. Flare-ups were reported to occur weekly, lasting 1-2 days. The activities precipitating flare ups included standing activities and mediations. Id at 3. The functional impairment resulting from these flare-ups consisted of loss of motion, difficulty walking. Id. There was no reports of episodes of dislocation or subluxation. Id. at 3. There were findings of crepitus tenderness, guarding of movement, bumps consistent with Osgood–Schlatter disease. Id. at 4. Addressing stability, the examiner reported that there was no clicking or snaps; no right knee instability. The examiner reported that patellar abnormality was noted. The type was described subpatellar tenderness. No meniscus abnormality was reported. Id. at 4. Regarding range of motion: The Veteran was noted with flexion limited to 90 degrees, with extension, normal. No extension is limited by 5 degrees. Id. at 5. Objective evidence of Pain: There was objective evidence of pain following repetitive motion. Limitation after three repetitions: There were no additional limitations after three repetitions of range of motion. Id. at 5. There was no joint instability, weakness. There was no joint ankylosis. Other significant physical findings noted: Anterior and posterior drawer test negative; Mc Murray test, negative. Id. at 5. Diagnostic testing revealed the following: Bone density is normal intra-articular calcifications are seen bilaterally more prominent at the right knee favoring chondrocalcinosis. Mild narrowing of the joint bases noted also more prominent at the right knee particular involving medial compartment of the femorotibial joint space. Tiny osteophytes are seen at the posterior surface of the right patella. No fracture or dislocation noted. No joint effusion seen on either side. Id. at 6. In July 2013, the Veteran was afforded a Knee and Lower Leg examination. The examiner noted a history of right knee meniscectomy. See July 12, 2013 Knee and Lower Leg examination, pg. 3. Regarding flare-ups, the Veteran reported that he did experience flare-ups upon squatting, prolonged standing and ambulation. Id. at 3. Regarding range of motion: The Veteran was noted with flexion limited to 60 degrees, with extension, 15 degrees. Id. at pgs. 3-4. Objective evidence of Pain: There was objective evidence of pain beginning at 0 degrees or any degree of hyperextension. Id. at 4. Regarding repetitive testing: The Veteran was able to perform repetitive use testing with at least three repetitions. Range of motion after three repetitions was as follows: flexion limited to 55, with extension 15 degrees. Id. at pg. 5. The examiner reported that the Veteran has functional loss with the contributing factors of disability including less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, interference with sitting, standing and weight-bearing. Id. at 6. Muscle strength was 4/5 for flexion; 4/5 extension. Id. at 7. Joint stability testing was performed. Anterior instability (Lachman test) was normal; Posterior instability (Posterior drawer test) was normal. There was medial instability (Apply varus pressure to knee in extension and with 30 degrees of flexion) at 1+ (0-5 millimeters); Lateral instability at 1 + (0-5 millimeters); The examiner noted that there was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran had never had shin splints. Id. at 8. The examiner reported a meniscus (semilunar cartilage) condition, reported as meniscal tear frequent episodes of joint "locking", joint pain, joint effusion. Id. at pgs. 8-9. With regards to assistive devices, the examiner reported that the Veteran uses a brace and cane constantly for knee pain. Id at 10. In November 2013, the Veteran was afforded a Knee and Lower Leg examination for the specific purpose discussing radiological finding from a March 2013 MRI, in which the Veteran was seen to have swelling edema and an effusion with a small amount of fluid in his knee. The examiner observed that if these symptoms can coexist or if they are different symptoms, it is important to mention that swelling, edema and effusion are not symptoms at all but physical or radiological findings. The examiner noted that these findings usually coexist with each other and are a response to an inflammatory process due to an injury, but they are not symptoms. The Veteran usually develop symptoms of pain, locking or a giveaway sensation as a result of the inflammation which cause edema swelling or an effusion (basically the same thing). See November 2013 Knee and Lower Leg examination, pg. 4. Pursuant to the Board’s October 2016 Remand Directives, the Veteran was afforded a February 2019 Knee and Lower leg examination regarding the severity of his right knee disability. See February 2019 Knee and Lower Leg Conditions Examination. The examiner, after a review of the medical records and claims file, confirmed the Veteran’s diagnosis of right knee osteoarthritis with limited extension associated with meniscectomy, residuals of mild meniscotomy, and slight lateral instability. Id. at pgs. 1-2. The examiner noted that the Veteran continues to experience daily knee pain and feels the knee pain has worsened. The Veteran complains of aching pain and stiffness in both knees, with pain stronger in the right knee. The examiner reported the Veteran’s right knee sometimes suddenly buckles or gives away causing near falls. At other times he has locking of the right knee with difficulty in straightening his knee. The Veteran reported he loses sleep due to knee pain. Id. at pg. 2. Regarding Flare-ups: The Veteran described that his knee pain increases in intensity suddenly when it buckles and gives away and when it locks up. The Veteran reported that if he stands or walks a long time, the intensity of the knee pain increases and his must sit and rest. Id. Functional Loss: The Veteran described his functional loss as decreased endurance, standing and walking. The Veteran stated that he tries to avoid having to climb or go downstairs because this increases his knee pain. The Veteran reported that he goes up stairs and down-stairs slowly and sideways, using the handrail often due to pain. Regarding range of motion, on examination, the examiner noted that the Veteran had abnormal range of motion, with flexion limited to 70 degrees and extension, 10 degrees. See February 2019 Knee and Lower Leg examination, Id. at pgs. 2-3. Functional loss due to abnormal range of motion: The Veteran has difficulty taking off and putting on his right shoe due to decreased knee flexion. Id. Pain noted on exam and causes functional loss. There is evidence of pain with weight bearing. There is objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The location, severity and relationship to conditions: TTP at lateral joint line and patellar facets. Id. There examiner noted that there is objective evidence of crepitus. Id. Regarding repetitive testing: The Veteran was able to perform repetitive use testing with at least three repetitions. Range of motion after three repetitions was as follows: flexion limited to 60, with extension 10 degrees. Id. at pg. 4. The examiner reported that the examination was not conducted immediately after repetitive use over time. The examiner explained that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Id. at pgs. 4-5 The examiner reported that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The examiner reported that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner was not able to describe in terms of range of motion. The examiner explained that to express functional limitation due to pain, weakness, fatigability or incoordination with repeated use is not possible since it should be documented during a flare up and/or immediately after repeated use over time and the Veteran has not been in a repeated use over time situation today. Id. at pg. 5. Regarding Flare ups: The examiner noted that the examination was not conducted during a flare-up. The examiner reported that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. Id. at 6. The examiner reported that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The examiner reported that pain and lack of endurance significantly limit functional ability with flare-ups. Id. The examiner was not able to describe this in terms of range of motion. The examiner explained that range of motion should be documented during a flare up and/or immediately after repeated use over time and he has not been in a repeated use over time situation today. Id. at 6. Muscle strength was 4/5 for flexion; 4/5 extension. Id. at 7 There was no ankylosis. There is no history of recurrent subluxation. Id. at 8. The examiner reported that there is a history of slight lateral instability. The examiner reported a history of recurrent effusion, described as right knee swelling which increases when his knee buckles. Id. at 9. Joint stability testing was performed. Anterior instability (Lachman test) was normal; Posterior instability (Posterior drawer test) was normal. There was medial instability (Apply varus pressure to knee in extension and with 30 degrees of flexion) at 1+ (0-5 millimeters); Lateral instability was not checked on this examination. As noted above regarding medical instability, the examiner reported to apply varus pressure to knee in extension and with 30 degrees of flexion. Id. at 9. The Veteran did not have recurrent patellar dislocation or shin splints. Id. at 10. The examiner reported a meniscus (semilunar cartilage) condition, reported as meniscal tear frequent episodes of joint "locking", joint pain, joint effusion. The examiner noted that the right knee sometimes suddenly buckles or gives away causing near falls and at other times the Veteran will have locking of the right knee with difficulty straightening the knee. The Veteran will have swelling (effusion) at times after sudden buckling of the right knee. Id. at pgs. 10-11. The examiner noted that passive range of motion of the knees cannot safely be measured by the examiner during weight bearing. Id. at 12. The Veteran does not use any assistive device (s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. Id. at 12. Imaging studies were conducted, and traumatic arthritis was documented. Id. at 13. Addressing functional impact, the examiner reported that the Veteran has limitation of ROM due to his service-connected right knee condition to his left knee as well and pain accompanies effort to bend the knees and stand from a sitting position. The Veteran is limited in carrying objects that weigh 10 or more pounds, or doing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders and is limited to sedentary or semi sedentary type activities and should not participate in high impact activities. Id. at 13. Addressing Correia: The examiner reported that there was evidence of pain on passive range of motion testing for the right knee and the left knee. The Veteran complained of pain during passive range of motion when the joint is used in non-weight bearing. Testing the undamaged joint, the examiner reported that the opposing joint, left knee has degenerative joint disease. Id at 13. In October 2020, the Veteran was afforded an additional Knee and Lower leg examination. See October 23, 2020 Knee and Lower Leg examination. The examiner, after a review of the medical records and claims file, confirmed the Veteran’s diagnosis of right knee osteoarthritis with limited extension, in addition to residuals of mild, meniscotomy, right knee, slight lateral instability. Id. at pgs. 1-2. The examiner noted that the Veteran complains of daily bilateral knee pain (6/10 pain scale) with morning knee stiffness; that flares-up with more pain (7-9/10 pain scale) upon climbing stars, prolonged walking/standing with difficulty kneeling down and squatting. The examiner reported that the Veteran’s right knee gives away with instances of near fall and intermittent right knee locking. Id. at pg. 2. Functional Loss: The Veteran described his functional loss as difficulty kneeling down, squatting, with the right knee giving away, with instances of near fall & intermittent right knee locking. Id. at 3. Regarding range of motion, on examination, the examiner noted that the Veteran had abnormal range of motion, with flexion limited to 70 degrees and extension to 10 degrees. See October 2020 Knee and Lower Leg examination, Id. at 3. Pain was noted on exam (flexion and extension) which caused functional loss. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue The location of the pain and severity and relationship to conditions was described as TTP at medial/lateral tibial plateau and anterior knee joint. There was objective evidence of crepitus. Id. at 3. Repetitive Use testing: The Veteran was able to perform repetitive use testing with at least three repetitions. Range of motion after three repetitions was as follows: flexion limited to 60, with extension 10 degrees. Id. at pg. 4 The examiner reported that the examination was not conducted immediately after repetitive use over time. The examiner explained that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Id. pg. 5 The examiner reported that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The examiner reported that specifically, pain significantly limits his functional ability with repeated use over a period of time. Described in terms of range of motion, the examiner reported the Veteran’s flexion is limited is to 60 degrees, extension is limited to 15 degrees. Id. at 5. Flare-ups The examiner reported that the examination was not conducted during a flare-up. The examiner explained that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive during a flare-up. Id. at 6 The examiner reported that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The examiner reported that specifically, pain significantly limits functional ability with flare-ups. Described in terms of range of motion, the examiner reported flexion limited to 60 degrees, extension limited to 15 degrees. Id. at 6. Muscle strength was 4/5 for flexion; 4/5 extension. There was no muscle atrophy. There was no ankylosis. There is no history of recurrent subluxation. Id. at pgs. 7- 8. The examiner reported that there is no history of lateral instability. Id. at 8. (The Board observes that this is not consistent with other examinations of record, as well as the examiner own medical history report of the Veteran’s lateral instability. Id. at pg. 2. re: slight right lateral instability.) Joint stability testing was performed. Anterior instability (Lachman test) was normal; Posterior instability (Posterior drawer test) was normal. There was medial instability (Apply varus pressure to knee in extension and with 30 degrees of flexion) at 1+ (0-5 millimeters); Lateral instability at 1 + (0-5 millimeters). Id. at 9. The Veteran did not have recurrent patellar dislocation or shin splints. Id. at 10. The examiner reported a meniscus (semilunar cartilage) condition, reported as meniscal tear frequent episodes of joint "locking", joint pain, joint effusion. The examiner noted that the right knee sometimes suddenly buckles or gives away causing near falls and at other times the Veteran will have locking of the right knee and difficulty to straighten it out, he will have swelling (effusion) at times after sudden buckling of the right knee. Id. at 10. The examiner reported that the Veteran does not use any assistive device(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. Id. at 11. Addressing functional/occupational impact, the examiner reported that the Veteran may perform clerical desk duties that do not involve repetitively going from sitting to standing, climbing stairs or carrying/lifting objects of greater than 10 pounds. Id. at 13. Addressing Correia: There is evidence of pain when the joint is used in non-weight bearing, and evidence of pain when the joint is used in non-weight bearing. The Veteran complained of pain during active range of motion. Manual strength test performed on both knees. The examiner reported that the opposing joint (left knee) is not undamaged. Both knees are affected. Id. at 13. The Board now turns to an analysis of the issues before the Board. 1. Entitlement to an initial compensable evaluation based on limitation of the extension of the right knee prior to July 12, 2013 and 20 percent thereafter. In order to warrant a compensable rating for right knee extension, the Veteran's right knee extension would need to be limited to 10 degree or higher Prior to July 12, 2013, the evidence of record reflects that the Veteran’s right knee extension was normal, and his flexion was limited to 90 degrees. As discussed above in this decision, a June 2011 VA examiner reported that the Veteran’s right knee extension was normal, with flexion limited to 90 degrees. No extension is limited by 5 degrees. See June 2011, Knee and Lower leg examination, pg. 5. Therefore, the Board finds that an initial compensable rating prior to July 12, 2013 for right knee extension is not warranted. From July 12, 2013, applying the findings of the VA examinations and medical reports to the appropriate Diagnostic Code for limitation of motion for the right knee, the next higher 30 percent rating is only warranted where extension is limited to 20 degrees or flexion is limited to 15 degrees. A 40 percent rating is warranted for knee extension limited to 30 degrees 38 C.F.R. § 4.71 (a), DC 5260, 5261 (2018). Here, the Veteran's flexion at its worse has been limited to 55 degrees, during his July 12, 2013 Knee and Lower leg examination, with extension limited to 15 degrees at worst. See July 12, 2013 Knee and Lower leg examinations, pgs. 5-6. Considering the range of motion of the Veteran’s right knee disability, a 30 percent rating is not warranted under Diagnostic Code 5261for extension. Additionally, a separate rating is not warranted under Diagnostic Code 5261 for flexion. The Board recognizes the Veteran's reports of continued right knee pain. The Board considered this knee pain, in addition to the Veteran’s description of his flare-ups, their frequency, severity and duration, as well as any additional limitations of motion due to pain (including difficulty standing and walking, climbing and descending stairs). However, even considering additional limitation of motion or function of the knee due to pain, flare-ups or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40 , 4.45, 4.59, DeLuca), the evidence does not show that the right knee disability more nearly approximates the criteria for a higher rating. Therefore, entitlement to an initial compensable rating for limitation of right knee extension prior to July 12, 2013, and 20 percent thereafter must be denied. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. 2. Entitlement to an increased rating in excess of 10 percent prior to July 12, 2013 for the residuals of mild, meniscectomy, right knee and 20 percent thereafter. Prior to July 12, 2013 In January 20, 2011 correspondence, the Veteran submitted correspondence from his treating physician which indicated that the Veteran presents with episodes of right knee pain and instability, recurrent episodes of locking' and has clicking and catching in his knee. Affording the Veteran all reasonable doubt, the Board finds that this is the earliest evidence that the Veteran presented with a dislocated semilunar cartilage (meniscus) condition, with frequent episode of locking, pain and effusion into the joint. The Board finds that these symptoms are consistent with the 20 percent rating currently assigned under Diagnostic Code 5258 for semilunar cartilage that is dislocated with frequent episodes of locking, pain and effusion into the joint. Thus, the Board finds that a 20 percent rating is warranted for the period on appeal from January 20, 2011. See January 20, 2011 Correspondence (N.A.O., M.D.); See also, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400. From July 12, 2013. Both the February 2019 and October 2020 VA examiner’s reported that the Veteran experiences frequent episodes of joint "locking", joint pain, joint effusion. See February 2019 Knee and Lower Leg Conditions Examination, pgs. 10-11; See also October 2020 Knee and Lower leg examinations, pg. 10. However, there is no higher rating available under DC 5258. As such, the claim must be denied as a matter of law. Lastly, a separate rating is not warranted as there is no evidence of ankylosis of the right knee (Diagnostic Code 5256) which would provide a 30 percent rating. 3. Entitlement to an initial compensable rating for right knee lateral instability prior to July 12, 2013 and excess of 10 percent thereafter. Throughout the increased rating period on appeal, the Veteran has reported episodes of locking and giving way, which his treating physician and examining physicians have attributed to the residuals of his meniscectomy. See January 20, 2011 Correspondence (N.A.O., M.D.) re: re: episodes of right knee pain and instability. In addition, he has used assistive devices during the increased rating period on appeal, in part due to his back, and in part due to knee pain. Id. re: brace for back pain. In light of these findings, resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent disability rating under DC 5257 is warranted from January 20, 2011 for the right knee instability (which is best characterized as moderate in nature in light of the episodes of giving out and pain), as this was the date the severity of his instability was factually ascertainable. See January 20, 2011 Correspondence (N.A.O., MD.); October 23, 2020 Knee and Lower Leg examination at pg. 10; See also, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400. The weight of the evidence is against a higher, 30 percent, disability rating, as the none of the VA examinations of record have found that the Veteran’s right knee disability is severe. See June 8, 2011 Knee and Lower Leg examination; February 12, 2019 Knee and Lower Leg Conditions, pgs. 9 re: slight instability; See also October 2020 Knee and Lower leg examinations, pgs. 8 &11; See also January 20, 2011 Correspondence re: instability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU due to all of his service-connected disabilities. See May 16, 2013, VA Form 21-8940. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. § 3.340, 3.341, 4.16 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is currently service connected for lumbosacral strain, myositis, & spondylosis (claimed as back condition associated with residuals, mild, meniscectomy, right knee), 20 percent from January 27, 2011; Right knee slight lateral instability associated with residuals, mild, meniscectomy, right knee, 20 percent from January 20, 2011; Residuals, mild, meniscectomy, right knee, 10 percent from September 26, 1967 and 20 percent from January 20, 2011; left knee degenerative joint disease associated with right knee osteoarthritis with limitation of extension, 10 percent from January 27, 2011; tinnitus associated with bilateral sensorineural hearing loss, 10 percent from January 27, 2011; bilateral sensorineural hearing loss, 0 percent from January 27, 2011; anterior medial right knee scar of meniscectomy associated with residuals, mild, meniscectomy, right knees, O percent from January 27, 2011; anterior medial right knee scar of meniscectomy associated with residuals, mild, meniscectomy, right knees, O percent from January 27, 2011; right knee osteoarthritis with limitation of extension associated with residuals, mild, meniscectomy, right knee, 20 percent from July 12, 2013; limitation of flexion - right knee associated with residuals, mild, meniscectomy, right knee, 0 percent from February 12, 2019. The Veteran’s combined rating is 70 percent from July 12, 2013; Hence, the Veteran meets the schedular criteria. On his May 2013 VA Form 21-8940, the Veteran indicated that he last worked in November 2012. The Veteran indicated that all of his service-connected conditions precluded from securing or following any substantially gainful employment. The Veteran was employed in maintenance from May 1979 to November 2012. His highest level of education is one year of high school, with no additional training. See May 16, 2013, VA Form 21-8940. Upon taking into consideration the Veteran's level of education (1 year of high school), work experience and the functional impairment resulting from his service-connected disabilities, the Board finds that the Veteran is unable to work due to his service-connected disabilities. The Veteran has limited education and previously worked exclusively in positions involving physical labor, i.e., janitorial and maintenance. First, there is competent evidence that the Veteran's right knee disability causes significant mobility deficiencies. The Veteran’s June 2011 VA Knee and Lower leg examiner reported the Veteran’s knee condition resulted in decreased mobility, with the resulting work problem of increased absenteeism; See June 8, 2011 Knee and Lower Leg examination, pg. 7. The Veteran’s February 2019 Knee and Lower Leg Conditions examiner reported that due to the Veteran’s service-connected right knee condition, the Veteran is limited in carrying objects that weigh 10 or more pounds, or doing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders and is limited to sedentary or semi sedentary type activities and should not participate in high impact activities. See February 2019 Knee and Lower Leg Conditions Examination, pg. 13. The October 2020 Knee and Lower Leg Condition’s examiner reported the Veteran would be limited in carrying/lifting objects of greater than 10 pounds, climbing stairs, going from sitting to standing. See October 2020 Knee and Lower Leg Condition examination, pg. 13. The Veteran October 2020 VA Back conditions’ examiner stated that the Veteran would have difficulty lifting objects or bending forward. See October 2020 VA Back Conditions examination, pg. 2. Second, with regards to sedentary limitations, the Board also observes that the Veteran’s Hearing Loss and Tinnitus examiner reported that the Veteran’s bilateral hearing loss and would impact his ability to work. The examiner reported that according to the Veteran, it is difficulty to hear conversations, especially with noise in the background. See November 2014, Hearing Loss and Tinnitus examination, pgs. 4-5. The Board concludes that the competent and credible evidence of record supports a finding of entitlement to TDIU. Resolving all doubt in favor of the Veteran, the disability picture presented by the probative, competent, and credible evidence of record establishes that due to his service-connected disabilities, the Veteran has been unable to obtain or retain substantially gainful employment. In all, the evidence indicates that, as a result of both physical and sedentary limitations, it is as likely as not that the Veteran is precluded of all forms of gainful employment particularly when considering the collective impact of his service connected disabilities, their functional impact, taken together with the Veteran’s level of education and work experience. Accordingly, the Veteran's application for TDIU is granted, effective July 12, 2013 (the first date where the schedular percentage threshold requirements for consideration of a TDIU on a schedular basis were met). REASONS FOR REMAND Entitlement to TDIU on an extraschedular basis prior to July 12, 2013 is remanded. Under 38 C.F.R. § 4.16(b), when the evidence indicates that the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but the person does not meet the percentage thresholds established in (a), the Board must submit the case to the Director, Compensation Service, for extraschedular consideration (i.e., the Board cannot grant extraschedular TDIU in the first instance). The available evidence indicates that the Veteran has been unemployed since before the schedular TDIU criteria were first met. The Veteran asserts that he cannot work due to all of his service-connected disabilities. Accordingly, a remand is in order to determine whether TDIU would be warranted on an extraschedular prior to July 12, 2013. Under 38 C.F.R. § 4.16(b), when the evidence indicates that the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but the person does not meet the percentage thresholds established in 4.16(a), the Board must submit the case to the Director, Compensation Service, for extraschedular consideration (i.e., the Board cannot grant extraschedular TDIU in the first instance). According, this matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director, Compensation Service for extraschedular consideration. The Director should consider the impact of the Veteran's service-connected right knee, left knee, back and bilateral hearing loss and tinnitus on his ability to secure and follow substantially gainful employment prior to July 12, 2013. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.