Citation Nr: 21008841 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-29 147 DATE: February 18, 2021 ORDER An initial disability rating in excess of 20 percent for degenerative arthritis, left knee, is denied. A separate initial disability rating of 20 percent, but no higher, for service-connected left knee instability, for the period on appeal prior to September 16, 2011, is granted. A separate initial disability rating of 10 percent, but no higher, for painful motion during extension of the left knee is granted. A separate initial disability rating of 20 percent under Diagnostic Code 5258 is granted. FINDINGS OF FACT 1. The service-connected degenerative arthritis of the left knee is not manifested by flexion limited to 15 degrees. 2. For the period on appeal prior to September 16, 2011, the Veteran’s left knee disability was manifested by lateral instability and giving out, resulting in an overall disability picture that most closely approximated moderate lateral instability. 3. The service-connected degenerative arthritis of the left knee is manifested by painful motion of the left knee on extension but not extension limited by 15 degrees or more. 4. From September 16, 2011, the Veteran’s degenerative arthritis of the left knee, status post meniscectomy, has been manifested by dislocated semilunar cartilage with frequent episodes of joint locking. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected degenerative arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. For the period on appeal prior to September 16, 2011, the criteria for a separate 20 percent disability rating, but no higher, for slight instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate initial 10 percent disability rating for left knee extension for painful motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 4. The criteria for a separate initial 20 percent disability rating for service-connected degenerative arthritis of the left knee, status post meniscectomy, from September 16, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 1983 to June 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for degenerative arthritis of the left knee and assigned a 10 percent disability rating, effective July 1, 2008. The Veteran’s notice of disagreement (NOD) was received in February 2009. The RO issued the statement of the case (SOC) in March 2009, and the Veteran’s VA Form 9, substantive appeal was received in June 2009. During the pendency of the appeal, the RO issued a rating decision in September 2009 granting an increased rating for the service-connected degenerative arthritis of the left knee to 20 percent, effective from July 1, 2008. Also during the pendency of the appeal, the RO issued a rating decision in August 2013 granting a temporary evaluation of 100 percent for the service-connected degenerative arthritis of the left knee based on surgical or other treatment requiring convalescence. A 20 percent rating was assigned from May 1, 2012. In January 2013, August 2015, December 2017, January 2019 and August 2020 the Board remanded the case to the RO for further development and adjudicative action. In April 2016, the Board denied the Veteran’s claim for entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the left knee but granted a separate 20 percent rating based on left knee instability, effective from September 16, 2011. The Board also determined that the issue of entitlement to a total disability rating based on individual unemployability was not before the Board at that time. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a November 2016 Order, the Court vacated the Board’s April 2016 decision with respect to the denial of an initial rating in excess of 20 percent for the Veteran’s degenerative arthritis of the left knee and remanded the matter, along with the issue of entitlement to TDIU pursuant to an October 2016 Joint Motion for Partial Remand (JMPR). The Court did not vacate the Board’s grant of a separate 20 percent rating based on moderate left knee instability. In February 2017, the Board denied the Veteran’s claims for entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the left knee and entitlement to a TDIU. The Veteran appealed this decision to the Court. In an August 2017 Order, the Court vacated the Board’s February 2017 decision with respect to the denial of an initial rating in excess of 20 percent for the Veteran’s degenerative arthritis of the left knee and remanded the matter pursuant to an August 2017 JMPR. The JMPR also noted that the Veteran agreed to abandon his claim for entitlement to a TDIU. Accordingly, the February 2017 Board decision is final with respect to that issue and the issue is not before the Board. Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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 would be necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement that affects stability, standing, and weight-bearing. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Consideration must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, will only be considered in conjunction with diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis, left knee. The Veteran asserts that his service-connected left knee disability is more disabling than reflected by the currently assigned disability rating. The Veteran’s left knee disability is currently rated as 20 percent disabling, excluding the period from March 6, 2012 to May 1, 2012 when the left knee disability is assigned a temporary 100 percent disability rating based on the need for convalescence following surgery. The Veteran’s left knee disability has been rated separately by the RO under Diagnostic Code 5257 and 5260. Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5260 provides the criteria for limitation of knee flexion of the knee. Under this diagnostic code provision, a 30 percent disability rating is assigned where flexion is limited to 15 degrees; a 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 10 percent disability rating is assigned where flexion is limited to 45 degrees; and a noncompensable disability rating is assigned where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. In addition, Diagnostic Code 5261 governs limitation of extension and provides for a noncompensable disability rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5258, semilunar, dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the joint is assigned a 20 percent rating. The 20 percent rating is the only rating provided under Diagnostic Code 5258. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not attainable under the relevant rating criteria, then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In that event, the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003-5010 (for the arthritis) and Diagnostic Code 5257 (for the instability) based on additional disability. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 (flexion) or Diagnostic Code 5261 (extension). Hence, if a claimant has a disability rating under Diagnostic Code 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under Diagnostic Code 5003-5010. Likewise, if a claimant has a disability rating under Diagnostic Code 5003 for arthritis of the knee, and there is evidence of instability, a separate rating is available under Diagnostic Code 5257. See VAOPGCPREC 9-98 (August 14, 1998) (clarifying that, to receive separate ratings on this basis, the Veteran must at least have sufficient limitation of motion to meet the threshold minimum requirements for a zero percent rating under either Diagnostic Code 5260 or 5261, for flexion or extension respectively, or have pain causing additional limitation of motion to at least these extents). It is also possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Factual Background During a general VA examination in June 2008, the Veteran reported chronic knee pain, weakness, stiffness, redness, giving way, lack of endurance and locking, but not swelling, heat, fatigability, and dislocation. He further reported that the left knee gave out continuously and unexpectedly and that he could not run without pain or perform deep knee squats. A physical examination revealed initial forward flexion to 90 degrees with pain that was additionally limited by 5 degrees due to pain and weakness following repetitive use. The medial and lateral collateral ligaments stability and meniscus tests were normal. Diagnostic testing showed degenerative arthritis of the knees but no evidence of knee joint effusions. The Veteran was afforded another examination in August 2009. He reported constant pain the left knee that was aggravated by walking or running, and that he experienced flare-ups that lasted two to three days. A physical examination revealed flexion to 85 degrees, with pain at 55 degrees, and mild infrapatellar effusion and crepitus on extension and flexion. There was also marked patellar tenderness and enlarged tibial tuberosity compatible with mild to moderate Osgood-Schlatter disease. The knee itself was stable to varus, valgus, and anterior drawer testing. The examiner reported no additional loss of motion after repetitive motion testing. An October 2011 VA treatment note indicates that the Veteran reported a recent exacerbation of chronic left knee pain. He reported severe pain especially with walking, any type of movement, stairs. Physical examination revealed significant tenderness around the patella, significant discomfort with light passive range of motion, good endpoint on anterior drawer, intact collateral ligaments, and limitation of motion due to pain. The examiner noted worsening chronic left knee pain, likely severe femoral patellar syndrome, which will require orthopedic intervention. A September 2011 X-ray revealed small joint effusion with no evidence for fracture or significant degenerative change. There was minimal lateral subluxation of bilateral patellae. The Veteran was afforded another VA examination in January 2013. The Veteran reported experiencing flare-ups twice per week that would confine him to bed for the entire day. In the year prior to the surgery, the Veteran reported he had joint instability and fell approximately twenty times without injury. He also experienced swelling in his knee, severe popping, and joint cracking. A physical examination revealed flexion to 120 degrees with pain after initial testing. The examiner noted no additional limitation of motion following repetitive use testing and no functional loss or impairment of the knee. There was tenderness or pain to palpation and the Veteran had abnormal posterior instability test results, but no ankylosis. The examiner noted that the Veteran’s left knee disability impacted his ability to work and that the Veteran reported a decreased ability to perform manual labor due to his walking, lifting, exercising, sitting, and squatting limitations. In the section for meniscal conditions and meniscal surgery, the examiner noted that the Veteran had a meniscal tear, frequent episodes of joint locking, pain, and effusion. He further noted that the Veteran did not have a meniscectomy and had no residual signs or symptoms due to a meniscectomy. Because the Veteran underwent a left knee meniscectomy in March 2012, which was noted by the examiner in the section for medical history, the Board remanded the matter for a medical opinion to clarify whether the Veteran’s described symptoms existed before or after his surgery. In compliance with the August 2015 remand, an addendum medical opinion was obtained in October 2015. The examiner noted that the January 2013 examination report’s section regarding meniscal conditions and surgery was inaccurate because the Veteran underwent a left knee meniscectomy in 2012. He clarified that the Veteran’s complaints of frequent joint locking, pain and effusion regarding post-operation function. In making the assessment, the examiner relied on other sections of the examination report and the Veteran’s post-operative medical records. He concluded that the Veteran had frequent episodes of joint locking, joint pain, and joint effusion related to his left knee disability after the operation. As part of the August 2017 JMPR, the Parties agreed that the June 2008, August 2008, and January 2013 VA examinations were not compliant with the holding in Correia v. McDonald, 28 Vet. App. 158, 165 (2016) because there was no indication that the VA examinations conducted range of motion testing for both passive and active motion and weight bearing and non-weight bearing motion. The Parties also agreed the VA examinations are inadequate because no examiner opined whether the Veteran experiences further loss of range-of-motion during flare-ups as required by DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A March 2017 VA treatment note indicates that the Veteran reported a significant increase in right knee pain as a result of his right knee giving out in December. He reported needing to use a cane because of the worsening pain. Physical examination revealed a significant antalgic gait on the right with the use of a cane. He had crepitations with knee extension which was painful. Resisted knee extension was 5/5 on the left. Knee flexion was 5/5 and near-equal bilaterally. The Veteran’s knees were “exquisitely tender” to palpation. Significant pain was noted with a patellar grind test. Range of motion with knee flexion was to about 110 degrees with a significant increase in pain. The examiner reported that valgus and varus stresses were difficult to test due to his discomfort and guarding. He stated that they appear stable, but, again, due to guarding, it is difficult to determine if it is stable. A March 2017 X-ray revealed tricompartmental osteoarthritis with most significant on the patellofemoral joint and significant complex degenerative tearing of the medial meniscus. A VA examination report dated in August 2017 revealed 110 degrees of flexion and zero degrees of extension in the left knee. However, the examiner noted that the examination was focused on the right knee as the left knee was not indicated and the Veteran was not complaining of left knee problems at the time of the examination. Joint stability testing was normal for the left knee. The examiner noted bilateral meniscal tears and frequent joint pain from repeated trauma. However, while describing the Veteran’s left knee surgical history, the examiner only listed a “repair of torn right meniscus.” The Veteran reported constantly using a cane for assistance. The examiner stated that the cane was used for balance due to heel numbness and right knee pain, poor balance and weakness of the right lower extremity. A VA examination report dated in February 2018 shows that the Veteran was diagnosed with left knee degenerative arthritis and arthroscopic debridement of the left knee. The Veteran reported having arthroscopic debridement of his left knee sometime four years ago. He reported worsening knee pain aggravated by lifting, carrying, bending, squatting, twisting, climbing, pulling and pushing as well as prolonged standing and walking and relieved by nothing but rest and pain medications help to some extent. The Veteran reported flare-ups of the right knee but did not report flare-ups of the left knee. The Veteran reported having functional loss or functional impairment in that his knee pain affects the ability to bend, squat, climb and stand or walk for prolonged periods. Physical examination revealed 110 degrees of flexion and zero degrees of extension in the left knee. There was objective evidence of mild diffuse tenderness in the left knee. Pain resulted in or caused functional loss. There was pain with weight-bearing and objective evidence of crepitus. Pain was exhibited with flexion and extension. There was no additional functional limitation of either knee following repetitive use. The examiner noted that the Veteran was not examined immediately after repetitive use over time but stated that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examination was not being conducted during a flare-up. The examiner stated that pain significantly limits functional ability during flare-ups. The VA examiner stated that they were unable to describe this functional loss in terms of range of motion but noted that the Veteran reported no decrease in range of motion during flare-ups, only an increase in pain. Additional factors contributing to the Veteran’s left knee disability were described as swollen deformity as well as the effects on the prolonged ability to stand and walk. Muscle strength testing was within normal limits. There was no atrophy. There was no ankylosis. The Veteran reported recurrent swelling and joint effusion. Joint stability testing was normal. The examiner stated that the Veteran does not currently and has never had a meniscal condition. The examiner noted that the Veteran had arthroscopic debridement surgery in 2014 which included residuals of pain and limited range of motion. He would constantly use a cane for assistance. The Veteran’s left knee disability was said to impair his ability to bend squat, climb, twist and stand or walk for prolonged periods. There was objective evidence of pain on passive range of motion testing and on non-weight-bearing testing of the left knee. A VA examination report dated in June 2019 shows that the Veteran was diagnosed with left knee degenerative arthritis. The Veteran reported having arthroscopic debridement of his left knee and having cartilage cleaned up. He reported trying to delay left total knee replacement as long as possible. The Veteran reported left knee symptoms of pain, swelling, buckling and weakness. He reported functional loss, stating that if he puts time on his knees he will be down, sitting on the couch. He stated that he cannot run anymore and cannot really do his elliptical anymore. He added that if he does much around the house for more than 30 minutes, he will have pain and has gained weight. Physical examination revealed 100 degrees of flexion and 5 degrees of extension in the left knee. There was objective evidence of moderate diffuse tenderness in the left knee. Pain resulted in or caused functional loss. Crepitus was noted with flexion and extension. There was pain with weight-bearing and objective evidence of crepitus. There was no additional functional limitation of either knee following repetitive use. The examiner noted that the Veteran was not examined immediately after repetitive use over time but stated that pain and weakness significantly limits functional ability with repeated use over a period of time. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and stated that they were unable to describe in terms of range of motion. The examiner noted the Veteran’s statement that he has increased pain with 30 minutes of activity. The examination was not being conducted during a flare-up. The examiner stated that pain significantly limits functional ability during flare-ups. The VA examiner stated that the Veteran denied flare-ups. Muscle strength testing was within normal limits. There was no atrophy. There was no ankylosis. The examiner noted the Veteran’s history of left knee moderate instability. The Veteran reported increased effusion with overuse. Joint stability testing was normal. The examiner stated that the Veteran had frequent episodes of joint effusion with overuse and noted that the Veteran underwent arthroscopic surgery with removal meniscectomy in 2015. The Veteran did not use any assistive devices. The Veteran’s left knee disability was said to impair his ability to maintain physical activity and that he experiences pain and effusions with increased activity. The examiner noted that the Veteran works as an accountant and is able to work as an accountant because it is sedentary. The Veteran reported less than one-week work time lost in the last 12 months, but the examiner noted that the Veteran did not work for four years partially due to the knee pain. There was objective evidence of pain on passive range of motion testing and on non-weight-bearing testing of the left knee. Legal Analysis Having carefully considered the Veteran’s claim, the preponderance of the evidence shows that during the entire time period on appeal the Veteran’s left knee disability was manifested by pain, tenderness, weakness and subluxation. As indicated above, the Veteran’s left knee is rated as 20 percent disabling under Diagnostic Code 5257 from September 16, 2011 and 20 percent disabling under Diagnostic Code 5260 since the effective date of the grant of service connection. In order to meet the criteria for the next higher 30 percent disability rating under Diagnostic Code 5260, there would have to at least be an indication of flexion limited to 15 degrees. This is clearly not the case as flexion in each knee has consistently been shown to be more than 100 degrees. Even considering the absolute maximum limitation of flexion reported by the Veteran, including during flare-ups and after repeated use over time, the Veteran does not meet the criteria for a 30 percent disability rating under 5260 which requires that flexion be limited to 15 degrees or less. Consideration has been given to assigning a higher disability rating based on functional loss due to pain, weakness, fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. The Veteran's reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 percent for the service-connected left knee disability under Diagnostic Codes 5260 or a rating in excess of 10 percent under Diagnostic Code 5261 at any time during the appeal period under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. In reviewing the symptoms and other evidence of record, there is insufficient showing of functional loss supported pathology and objective observation to warrant an increased disability rating for either flexion or extension. The Board has considered the Veteran’s knee disabilities under other potentially applicable diagnostic code provisions. The evidence does not show that the Veteran experienced ankylosis of the knee joint, as he was able to demonstrate movement in each knee. In addition, there is no evidence that a knee was manifested by an impairment of the tibia or fibula or genu recurvatum. Therefore, Diagnostic Codes 5256, 5262, and 5263 are not for application in this case. 2. Entitlement to a separate initial disability rating of 20 percent, but no higher, for service-connected left knee instability, for the period on appeal prior to September 16, 2011. Additionally, the Board has considered whether a separate disability rating is warranted for left knee instability prior to September 16, 2011. Prior to September 16, 2011, there is competent lay evidence of left knee instability. In this regard, during the June 2008 examination, symptoms of left knee giving way and locking were noted. Accordingly, the criteria for a separate 20 percent initial disability rating for left knee instability are met from July 1, 2008, the date following the Veteran’s separation from active service. However, an initial disability rating in excess of 20 percent for left knee instability is not warranted. In this regard, there is no evidence of severe recurrent subluxation or lateral instability at any point during the period on appeal. Notably, while the January 2013 VA examination revealed +2 posterior instability in the left knee, every other examination of record showed no evidence of lateral instability or subluxation. The June 2019 VA examiner indicated that the Veteran had a history of moderate lateral instability of the left knee. Therefore, a disability rating in excess of 20 percent for the service-connected instability of the left knee is not warranted. 3. Entitlement to a separate initial disability rating of 10 percent, but no higher, for painful motion during extension of the left knee. As noted above, Diagnostic Code 5261 governs limitation of extension and provides for a noncompensable disability rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not attainable under the relevant rating criteria, then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In that event, the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran demonstrated extension limited to five degrees which meets the threshold minimum requirements for a zero percent rating under Diagnostic Code 5261 and has consistently been determined to experience pain on extension. See, e.g. March 2017 VA treatment note; see also August 2009, February 2018, and June 2019 VA examinations. As such, a separate 10 percent disability rating is warranted as the Veteran experiences pain on extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. 4. Entitlement to a separate 20 percent disability rating under Diagnostic Code 5258. Consideration has been given to availability of compensation under Diagnostic Codes 5258 and 5259. Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for removal of the semi-lunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. This is the only schedular rating assignable under Diagnostic Code 5259. Regarding the availability of ratings under these codes, the United States Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under Codes 5257 or 5261 (and by Code 5260) or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). On September 16, 2011, diagnostic imaging revealed mild effusion in the Veteran’s left knee. Since September 2011, the Veteran has regularly reported that his left knee disability has been manifested by pain, swelling, and locking. The Veteran was also noted to have undergone a meniscectomy during the appeal period. The January 2013 VA examiner noted that the Veteran had a meniscal tear with frequent episodes of joint locking, pain, and effusion. The Board finds that from September 16, 2011 the Veteran’s left knee disability meets the criteria under this diagnostic code. This is the highest rating available under this diagnostic code. Thus, the Veteran is not entitled to a higher rating under Diagnostic Code 5258. Accordingly, a separate 20 percent rating is granted for the Veteran’s left knee disability under Diagnostic Code 5258 from September 16, 2011, the first date it was factually ascertainable that the Veteran experiencing pain, locking and effusion into his left knee joint. (Continued on the next page)   Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED