Citation Nr: 21009428 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-45 651 DATE: February 22, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee (hereinafter, a left knee disability) is denied. Entitlement to a disability rating in excess of 10 percent for residuals of a meniscal tear of the right knee (hereinafter, a right knee disability) is denied. Entitlement to a separate 10 percent disability rating for lateral instability of the left knee is granted. Entitlement to a separate 20 percent disability rating for recurrent instability of the right knee is granted. FINDINGS OF FACT 1. The Veteran’s left knee disability is manifested by degenerative changes of the joint shown on x-ray and painful motion, but at no point during the appeal period has the Veteran’s left knee been ankylosed; nor has there been objective evidence of flexion limited to less than 60 degrees or extension limited to more than 5 degrees, even accounting for pain on motion. 2. The Veteran’s right knee disability is manifested by degenerative changes of the joint shown on x-ray and painful motion, but at no point during the appeal period has the Veteran’s left knee been ankylosed; nor has there been objective evidence of flexion limited to less than 60 degrees or extension limited to more than 5 degrees, even accounting for pain on motion. 3. Resolving all reasonable doubt in his favor, the evidence of record demonstrates that throughout the appeal period, the Veteran’s left knee disability was manifested by slight instability. 4. Resolving all reasonable doubt in his favor, the evidence of record demonstrates that throughout the appeal period, the Veteran’s right knee disability was manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 3. From October 4, 2006, criteria for a separate disability rating of 10 percent, but no higher, for left knee lateral instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.159, 4.1-414, 4.71a, Diagnostic Code 5257. 4. From March 5, 2014, criteria for a separate disability rating of 20 percent, but no higher, for right knee lateral instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.159, 4.1-414, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1996 to October 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and July 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has a long, complex procedural history. By way of background, the Veteran initially filed a claim for service connection for a left knee disability in October 2006. His claim was ultimately granted in a September 2013 Board decision, which was effectuated in a December 2013 rating decision that assigned a 10 percent disability evaluation from October 4, 2006. The Veteran subsequently appealed this disability evaluation. While that claim for an increased rating was pending, he also filed a separate claim for an increased disability rating for a right knee disability, which had been evaluated at 10 percent disabling from October 21, 2001. This claim was denied in a July 2014 rating decision, which the Veteran also timely appealed. In a March 2019 decision, the Board denied his claims for increased disability ratings for both knees. Subsequently, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, however, the parties entered into a Joint Motion for Remand (JMR). Pursuant to the terms of the JMR, the parties agreed that the Board erred in its March 2019 decision by failing to address the Veteran’s statements regarding flare-ups of his knee disabilities and recurrent instability. The Court thus vacated the March 2019 decision and remanded it for further action. Thereafter, the Board remanded the claims in April 2020 to obtain a new VA examination. This development was carried out and the matter was returned to the Board in November 2020. At that juncture, the Board remanded the claims once more to obtain an additional VA examination. The matter now returns to the Board. Increased Rating Generally, the Veteran asserts that the current disability evaluations for his right and left knees do not accurately reflect the severity or symptomatology of his disabilities. For instance, he reported in a November 2016 statement that his knees are painful, unstable, and prone to buckling when he is standing for long periods of time or going down the stairs. This reportedly prevents him from running or sprinting. The Veteran also indicated that he cannot work on ground that slopes downward or provide extended presentations or briefings while he stands on his feet. Additionally, he stated that he experienced “uncontrollable flare-ups” of the pain in his knees while he sits or squats with his legs bent, or while standing for extended periods of time. He reported that these flare-ups can last for days, during which time his movements and activities are limited. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to 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, 58 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA is responsible for determining whether the evidence supports the claim or is relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Medical and lay evidence At the outset, the Board will review the relevant medical and lay evidence from the period on appeal. The Board notes that although the ratings assigned for both the right and left knee are on appeal, the appeal periods (i.e., the timeframes during which relevant evidence will be reviewed) are different. With respect to the left knee, the relevant period on appeal begins in October 2006, when the Veteran filed his initial claim for a left knee disability. With respect to the right knee, however, the relevant period that the Board will focus on begins one year prior to March 2014, when the Veteran filed a claim for an increased rating for his right knee disability. At an April 2006 VA physical therapy consult, the Veteran reported left knee pain that began approximately three months ago. Pain was assessed at the medial joint knee and was described as throbbing or stabbing. Activities that increased the pain included stairs and squatting activities, while activities that decreased pain were rest. On active range of motion testing, left knee flexion was to 120 degrees and extension was to 0 degrees. Muscle strength on flexion was at 4/5 due to knee pain. The physical therapy notes also indicated that he had undergone an x-ray in March 2006, which revealed questionable narrowing of medial compartments of both knees. In May 2006, he underwent an MRI of the left knee that noted chondromalacia in the left knee with a possible medial meniscus tear. Axial views demonstrated minimal signal in the lateral patella facet cartilage that could have represented type II chondromalacia. The medial retinaculum was intact and there was no significant joint effusion. The anterior cruciate ligament (ACL) and posterior cruciate ligament (PCL) were intact and well-defined. There was a linear oblique signal in the posterior horn of the medial meniscus that extended to the articular surface consistent with a tear. The lateral meniscus and the medial collateral ligament and lateral collateral ligament complex were intact. At an October 2006 VA orthopedic consult, he complained of left knee pain. He reported that he had undergone a partial medial meniscectomy and an ACL shrinkage in his right knee several years ago. On physical examination of the left knee, he had full range of motion with medial line joint pain and a negative McMurray test. Collateral ligament testing and the anterior drawer sign were negative as well. X-rays were benign. The impression given was a possible medial meniscus tear of the left knee and a diagnosis of chondromalacia. In his October 2006 VA 21-526, the Veteran reported that his right knee disability caused him to transfer weight to his left knee, which was now experiencing pain. In December 2006, the Veteran underwent the first of many VA examinations afforded in connection with his left knee disability. At that time, he reported using a corrective knee brace every day. He told the VA examiner that he experienced left knee symptoms such as intermittent daily pain that was rated at 6/10 in severity, with flare-ups of joint pain that were at 8/10 in severity. He reported that he experienced flare-ups once or twice a week for about five to six minutes after sitting down. He avoided walking and standing during flare-ups and reported increased limitation of motion with flare-ups. The December 2006 VA examiner stated that he could not estimate additional loss of motion during flare-ups because the examination was not being conducted during a flare-up. The examiner noted that there was no impact on the Veteran’s usual occupation because of his left knee disability, but that he could not sit for longer than two hours at a time, walk well on even land, run long distances, or exercise with lifting over 200 pounds. On range of motion testing, flexion in the left knee on active and passive motion was to 125 degrees and flexion to 0 degrees. There was no additional limitation of motion due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. The VA examiner noted that the ligaments were stable. On McMurray’s test, there was palpable clicking and pain. The Veteran’s gait was steady, and he was able to stand. VA treatment records indicate that the Veteran subsequently underwent a left knee scope in 2007. A May 2007 orthopedic surgery outpatient note indicates that he had an old meniscal tear that was excised and not amenable to suturing repair. In a June 2007 VA orthopedic surgery outpatient note, the treatment provider noted that he was doing well following the left knee scope, with mild lateral incisional tendency at times. There was no erythema or discharge or effusion. Active range of motion was to 130 degrees, with muscle strength at a 5/5 and no instability. In August 2007, the Veteran underwent a second VA examination with respect to his left knee. The VA examiner noted that the Veteran was being seen following a left medial meniscectomy that was performed in April 2007. The VA examiner stated that assistive aids were not needed for walking but that there were functional limitations on standing and walking. More specifically, the Veteran was only able to stand for 15 to 30 minutes and walk for less than one mile. On physical examination, the Veteran’s gait was normal and there was no evidence of abnormal weight-bearing. On active range of motion testing, flexion was to 130 degrees, with pain beginning and ending at that point. On passive range of motion testing, flexion was to 135 degrees, with pain beginning at 130 degrees and ending at 135 degrees. On repetitive use, range of motion was limited to 95 degrees by pain. The VA examiner also noted crepitus and painful movement, with clicks or snaps and subpatellar tenderness. The VA examiner did not note any instability or meniscus abnormalities. There was no specific discussion of flare-ups. Subsequently, he underwent a third VA examination in January 2008. The VA examiner noted intermittent daily left knee pain with walking or standing for long periods of time. Pain was at a 7/10 in severity. The Veteran did not report flare-ups, but did complain of the left knee giving out, popping, and having less range of motion. He used a brace every day for the left knee, as well as a cane about once a week. He did not require crutches. There was no impact on the Veteran’s occupation, except that he could not sit for longer than two hours at a time or walk well on uneven land. He reported avoiding stairs or climbing them slowly and said he could not kneel. He also avoided squatting and walked slowly. He also reported that he had to stop doing leg curls and running, and that he could not lift over 150 pounds or go fishing as much due to the standing. On physical examination, active range of motion testing reflected flexion to 130 degrees, with painful motion beginning at 130. There was no additional loss of motion after repetitive use. The left knee medial and lateral ligaments, as well as the ACL and PCL, were stable. There was tenderness of the left knee in the medial and posterior areas, with no left knee weakness. The Veteran was limping at the examination but was able to stand. Passive range of motion testing was not performed due to possible injury. At an August 2009 hearing before the Board, the Veteran testified that his left knee disability symptoms including popping, snapping, locking, and occasional giving way. In a February 2011 VA Primary Care Note, the Veteran’s treatment provider noted that he had reported chronic pain in his knees since 2001 with multiple bilateral scopes, as well as degenerative joint disease. He also reported using braces and worsening pain and clicking noises in both knees. On examination, there was bilateral crepitus with audible clicking, but no disability, heat, or swelling. In a March 2011 VA orthopedic surgery consult note, the Veteran reported bilateral knee pain and inadequate relief with Tylenol and using a right knee brace. He indicated that his pain was located at the medial aspect of his joint and that his ability to perform activities of daily living were sometimes limited due to pain, decreased range of motion, and stiffness. He denied catching or locking symptoms but reported pain at a 7-8/10. On examination, he had normal gait with no swelling or palpable effusion. There was no muscle atrophy. Active and passive range of motion testing reflected extension to 100 degrees bilaterally, with mild crepitus and grinding noted on flexion and extension. No locking was observed, but there was medial and lateral joint line tenderness. Anterior and posterior drawer test results were negative, and motor strength was 5/5 on knee flexion and extension. The impression was bilateral knee pain, osteoarthritis, and chondromalacia. Subsequently, at a March 2011 VA physical therapy consult, the Veteran complained of bilateral knee pain, with the right knee being more painful than the left. He also reported a history of arthroscopy procedures for meniscal tears and a right knee ACL tear. He walked and exercised regularly and denied effusion episodes but reported that his right knee would give way at times. On examination, his gait was not antalgic, and his range of motion was to 120 degrees bilaterally. Muscle strength was 5/5 bilaterally, with no muscle atrophy. There was no warmth, redness, or effusion in either knee; his balance was within normal limits. Joint stability tests were negative, but a brace was ordered for the right knee. In an April 2011 VA orthopedic surgery note, the Veteran reported chronic bilateral knee pain with symptoms that worsened after increased activity. On examination, a mild antalgic gait was noted but no swelling or effusion. On active and passive motion, his range of motion was to 95 degrees. There was mild patellofemoral crepitus with grinding noted with flexion and on extension, but no locking was noted. Joint instability testing was negative, and motor strength was 5/5 on knee flexion and extension. The impression was bilateral knee pain with osteoarthritis. In a June 2011 VA primary care note, the Veteran reported severe pain in both knees. He reported that walking downstairs hurt his right knee more than his left. In November and December 2011 VA orthopedic surgery consult, the Veteran presented with significant knee pain. He reported his pain was at a 10/10 with increased morning stiffness. He denied locking or buckling but stated that the pain kept him awake at night. A November 2011 MRI indicated that these complaints were related to his right knee. In a January 2012 VA orthopedic surgery note, the Veteran once more denied locking in the right knee. In an October 2012 VA orthopedic surgery attending note, the Veteran complained of painful knees. The impression was degenerative menisci. In a March 2014 VA 21-4138, the Veteran requested an increased rating for his right knee disability, which had become more painful since he was last examined. In a May 2014 VA primary care note, the Veteran had crepitus in both knees, the right knee more than the left, with full range of motion in both knees. There was no heat, erythema, or edema. In July 2014, the Veteran was afforded another VA examination. The Board notes that this examination seemed to focus on the severity of his right knee disability. To that end, he reported a long history of bilateral knee pain, as well as knee scopes in both knees and a partial meniscectomy on the right. He reported that the pain was primarily anterior and worse going up or down the stairs. The Veteran did not report any flare-ups. Right and left knee flexion was to 140 degrees or greater, with no objective evidence of painful motion, and extension in both knees was to 0 degrees. There was no additional limitation of motion following repetitive use testing with three repetitions. However, the examiner noted that pain on movement contributed to functional loss or additional limitation of motion after repetitive use. There was pain on palpation bilaterally, while muscle strength was 5/5 on bilateral flexion and extension. Joint stability testing was performed on both knees, but all results were normal. The examiner did not indicate that there was evidence of a history of recurrent patellar subluxation or dislocation but did report a history of meniscal tears on the right side. The examiner noted that a right-side meniscectomy had been performed, with residual pain. Additionally, the examiner stated that no assistive devices were used as a normal mode of locomotion. In an August 2015 VA primary care note, the Veteran reported that he had chronic pain in both knees and that future surgery would be necessary because he had maximized treatment. At a June 2018 VA examination that focused on his right knee disability, the VA examiner diagnosed right knee joint osteoarthritis and degenerative arthritis since March 18, 2011, as well an arthroscopic partial medial meniscectomy of the right knee and thermal shrinkage in the right ACL. The Veteran reported that his symptoms of right knee pain had gotten worse. X-rays revealed that he had developed arthritis in both knees, and he endorsed throbbing pain after going the stairs. He also reported morning stiffness, as well as stiffness after sitting for a long time. The Veteran stated that he had had two surgeries on his right knee, including a right partial meniscectomy and a right ACL thermal shrinkage. He reported using over-the-counter medicines and injections in the right knee, but also stated that these did not provide meaningful relief. He did not report flare-ups. On examination, right knee flexion was to 125 degrees and extension to 0. The examiner noted that range of motion itself contributed to functional loss, because he had difficulty squatting and rising. Pain was exhibited on both flexion and extension, and there was moderate pain on palpation of the lateral joint line and infrapatellar region due to osteoarthritis. There was no evidence of pain on weight-bearing or objective evidence of crepitus. With respect to the left knee, flexion was to 130 degrees and extension was to 130 degrees. As with the right knee, range of motion itself contributed to functional loss and there was pain on flexion and extension. There was objective evidence of mild pain on palpation of the medial joint line. There was no evidence of pain on weight-bearing or crepitus. There was no additional loss of range of motion after repetitive use testing with three repetitions in either the right or left knee. However, the examiner stated that pain significantly limited functional ability with repeated use over time in both knees. Although the examiner did not describe this functional loss in terms of range of motion, he indicated the veteran complained of pain using the stairs along with stiffness that interfered with his ability to maintain a normal standing, walking, and running. Muscle strength was 5/5 on flexion and extension in both knees, with no muscle atrophy. Joint stability tests were performed but the results were normal bilaterally. The examiner indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Although the examiner found that the Veteran had had a meniscus condition, he noted no current symptoms on either side. At the same time, the examiner noted that osteoarthritis had developed in both knees, which could develop after meniscal surgery. The examiner noted that the Veteran used a brace on his right knee regularly due to his osteoarthritis. In the remarks portion of the examination report, the examiner stated there was no objective evidence of pain on non-weight-bearing, and that active range of motion and passive range of motion were the same. There was no objective evidence of pain on passive range of motion testing. In September 2020, the Veteran underwent yet another VA examination with respect to his knees. He reported that his bilateral knee pain had progressively worsened and that he had constant pain in both knees below the patella and the posterior knee, near the ACL area. He described it as a constant ache with occasional sharp pains. He also stated that his pain level was about 7-8/10 with the occasional 10/10 where he needed to sit and rest. Worsening factors included tasks requiring prolonged sitting, walking on uneven ground, bending, and squatting. He reported using over-the-counter medications and applying ice for relief. He did not report flare-ups. However, he indicated that he had functional loss or impairment in both knees. More specifically, he stated that he was unable to run or do much physical activity that involved walking on uneven ground, prolonged walking, sitting, or standing, or climbing stairs, which aggravated his pain. Initial range of motion testing reflexed flexion to 120 degrees and extension to 0 degrees in both knees. The examiner noted that pain limited range of motion and tasks requiring prolonged standing, walking, or sitting bilaterally. Pain was exhibited on flexion and extension bilaterally. There was objective evidence of localized tenderness or pain due to labored breathing on range of motion testing in both knees. There was evidence of pain on weight bearing in both knees, although no evidence of crepitus in the left knee. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time in either knee, but also reported that additional factors contributed to disability in both knees, including disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was 5/5 on flexion and extension bilaterally, with no muscle atrophy. The VA examiner did not note a history of recurrent subluxation, lateral instability, or recurrent effusion on either side. Joint stability testing was performed bilaterally, but the results were normal. With respect to meniscal conditions, the VA examiner noted meniscal tears in both knees, with frequent episodes of joint pain following repair. A history of partial meniscectomies on both knees was reported. Knee braces were used regularly bilaterally. With respect to functional impact, the Veteran reported that he frequently sat for long periods of time at work and that this aggravated his pain. In the remarks portion of the examination, the examiner indicated that there was no objective evidence of pain on passive range of motion testing or on non-weight-bearing in either knee. Last, the Veteran underwent a final VA examination in December 2020. The VA examiner noted diagnoses of chondromalacia patella, residual medial meniscus tear of left knee, to include arthritis, as well as residual meniscal tear, right knee, to include arthritis. The Veteran reported that his condition had stayed the same sine its onset but that there was no pain on the day of the examination. He indicated that pain was triggered by prolonged or excessive use and relieved with rest and over-the-counter medication. He did not report flare-ups, and the examiner did not indicate that he reported functional loss or functional impairment. On range of motion testing, right and left knee flexion was to 135 degrees and extension to 0 degrees. Abnormal range of motion did not itself contribute to functional loss, and no pain was noted on examination. There was no objective evidence of localized pain or tenderness, pain with weight-bearing, or crepitus. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of function or range of motion. The examiner noted that pain significantly limited functional ability with repeated use over time and estimated that flexion would be limited to 125 degrees bilaterally. Muscle strength testing was 5/5 on flexion and extension bilaterally. The examiner did not indicate a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed, but there was no joint instability found. The examiner also noted a history of meniscal tears on both sides but did not indicate whether there were any symptoms such as frequent episodes of joint locking, joint pain, or joint effusion. The examiner also noted that the Veteran used a brace and cane occasionally due to the bilateral knee conditions. With respect to functional impact, the examiner indicated that the Veteran could not jog, jump, hike, run, sprint, bend, or squat, and that he was unable to sit, stand, or walk for long. There was no objective evidence of pain on non-weight-bearing or passive motion on either side, and passive range of motion testing was the same as active range of motion testing. Disability rating criteria The Veteran is currently rated at 10 percent disabled in the right and left knees under diagnostic code 5010-5260. The Board notes that prior to March 5, 2014, the Veteran was rated under diagnostic code 5010-5259 for the right knee, and prior to July 5, 2014, he was rated under diagnostic code 5259-5260 for the left knee. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran is currently rated under the diagnostic codes for traumatic arthritis (5010) and limitation of flexion of the leg (5260). Effective February 7, 2021, VA amended its regulations governing musculoskeletal disabilities. In this regard, the Court has held that the Board may not apply a current regulation prior to is effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective dates of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. As such, the Board may evaluate the Veteran’s knee disabilities under both earlier and current diagnostic codes, as of their effective dates, in order to determine which version would afford the highest rating. Prior to February 7, 2021, diagnostic code 5010 governed arthritis due to trauma, substantiated by x-ray findings. The rating criteria specified that it would be rated as degenerative arthritis under diagnostic code 5003. In turn, diagnostic code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when limitation of motion of the specific joint involved was noncompensable under the appropriate diagnostic code, a rating of 10 percent would be assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. In the absence of painful motion, a 20 percent rating is assigned for x-ray evidence of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, while a 10 percent rating would be assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. From February 7, 2021, diagnostic code 5010 provides that post-traumatic arthritis should be rated as limitation of motion, dislocation, or instability, instead of as degenerative arthritis under diagnostic code 5003. The text of diagnostic code 5260, for limitation of flexion of the leg, was not amended. Both prior to and from February 7, 2021, diagnostic code 5260 provides that a noncompensable rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § § 4.71a, Diagnostic Code 5260. Under both the old and new versions of the musculoskeletal rating criteria, normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § § 4.71a, Plate II. Analysis Here, the Board finds that a higher rating is not warranted under diagnostic code 5010 under either the old or new regulatory provisions. To that end, under the old version of diagnostic code 5010, the Veteran is not eligible for a 20 percent rating in the absence of limitation of motion and, moreover, there is no x-ray evidence of involvement in two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, in either knee. As such, only a maximum 10 percent rating is available under the previous version of diagnostic code 5010, which accounted for objective evidence of painful motion in both knees. The result is the same after considering whether a higher rating is available under the new version of diagnostic code 5010 in effect from February 7, 2021. To that end, the new version of this diagnostic code indicates that traumatic arthritis should be rated as limitation of motion, dislocation, or instability. For the reasons discussed below, rating the disability based on limitation of motion under diagnostic code 5260 would not yield more advantageous results. With respect to whether a rating in excess of 10 percent is warranted under diagnostic code 5260, the evidence in the record does not support a higher rating for limitation of flexion under diagnostic code 5260. During the appropriate appeal periods, the Veteran’s right and left knee had limitation of flexion to no worse than 95 degrees, even when considering limitation of motion caused by pain and additional limitation of function or range of motion following repetitive use. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); VAOPGCPREC 9-98. In addition, the current rating for the left and right knees specifically accounts for painful motion under 38 C.F.R. § 4.59. In summary, higher ratings under diagnostic code 5010-5260 are not available. The Board notes that it has considered pertinent case law, such as Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that the final sentence of 38 C.F.R. § § 4.59 requires that VA examinations 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. The Board finds that the Veteran’s various VA examinations of record contain findings sufficient under Correia. To that end, because both knee joints are disabled, there is no “undamaged” knee joint. However, the VA examination reports generally reflect that testing was performed on both weight-bearing and non-weight-bearing and on both active and passive motion in both knee joints. Even the examinations performed prior to the Court’s issuance of its decision in Correia generally comply with its holding. For instance, the December 2006 and August 2007 VA examiners tested both active and passive motion, as well as noted that the Veteran’s gait was steady or normal. The January 2008 VA examiner tested active motion and clarified that passive motion could not be safely tested, as well as noted that the Veteran walked with a limp. The July 2014 VA examiner, who examined the Veteran in-person, noted that there was no objective evidence of pain on active range of motion. Ultimately, these examinations reflect that the Veteran moved on his own free will, indicating that pain on active motion and weight-bearing had been considered. To the extent that they did not contain separate findings on passive motion or non-weight-bearing, it follows that an assessment of passive motion would have yielded the same results as active motion. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion was met. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The Board also notes that the terms of the December 2019 JMR indicated that remand was necessary to discuss the impact of the Veteran’s reported flare-ups on his range of motion and functional ability. Indeed, the Board’s April 2020 and November 2020 remands were issued in an effort to obtain VA examinations consistent with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), which requires certain findings with respect to the impact of flare-ups on a disability. In this regard, the Board finds that there has been substantial compliance with its previous remand directives to obtain new VA examinations to determine the severity of the Veteran’s knee disabilities, to include attempting to elicit information regarding the severity, frequency, and duration of any flare-ups. See D’Aries v. Peake, 22 Vet. App. 98 (2008) (holding that only substantial compliance with the terms of a Board remand is required, as opposed to strict compliance). To that end, although the Veteran reported flare-ups of his knee disabilities at his December 2006 VA examination and in his November 2016 statement, he has otherwise denied the presence of flare-ups in his post-service medical treatment records and at the other six VA examinations performed in connection with his claims. The Board notes that even though the Veteran did not report flare-ups on the vast majority of his VA examinations, he nonetheless described to the various VA examiners the factors that aggravated or otherwise exacerbated his bilateral knee pain, such as climbing up or down stairs, walking on uneven ground, and prolonged sitting, standing, or squatting motions, as well as alleviating factors, such as rest. These factors were considered by the various VA examiners throughout the period on appeal, who opined as to the functional limitations caused by the Veteran’s knee disabilities or the additional limitations on function or range of motion caused by pain after repetitive use. Simply put, although the Veteran has at certain points described the effects of activities like climbing stairs, prolonged sitting, standing, or squatting, or walking on uneven ground as “flare-ups” of his knee disabilities, he has predominantly described this pain as the very nature of his knee disabilities. This is evident from the descriptions of his disabilities that he has provided the various other VA examiners of record, including the September 2020 and December 2020 VA examiners. The Board thus finds that that although the Veteran has at certain times described “flare-ups” of his knee disabilities, the overwhelming majority of the probative lay and medical evidence of record does not support a finding that he experiences flare-ups. As such, additional remand pursuant to the holding in Sharp is not warranted. The Board has also considered whether separate disability ratings are available under other diagnostic codes, such as diagnostic codes 5261, 5262, 5263, and 5256. However, these diagnostic codes do not apply here, as there has been no evidence indicating that there is limitation of extension of either leg, malunion or nonunion of the tibia or fibula of either leg, genu recurvatum, or ankylosis in either knee, respectively. However, the Board recognizes that the Veteran has consistently reported that his knees will buckle and that he requires knee braces due to instability. Although none of the VA examiners noted a history of recurrent subluxation or lateral instability, and although joint stability testing has generally not indicated instability, the Veteran has repeatedly reported that his knees would at times buckle or give way. Additionally, the record indicates that he has been provided with knee braces by VA treatment providers, and that he also has used a cane. Diagnostic code 5257 generally governs ratings related to recurrent subluxation or instability. Under the version of diagnostic code 5257 in effect prior to February 7, 2021, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability, while a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms “slight,” “moderate,” and “severe” are not defined in the regulations. Under the new version of diagnostic code 5257, however, recurrent subluxation or lateral instability must involve either a sprain, an incomplete ligament tear, or a complete ligament tear (whether repaired, unrepaired, or a failed repair), and impairment must result in persistent instability of the knee. For a 10 percent disability rating, there is no need for a brace or assistive device to be prescribed by a medical provider, but a prescription is required for a 20 or 30 percent rating. A 20 percent rating requires a prescription for a brace or an assistive device, while a 30 percent rating requires a prescription for both a brace and an assistive device, and the disability must be unrepaired or a failed repair of a complete ligament tear. Additionally, under the new rating criteria, “patellar instability” is a diagnosed condition involving the patellofemoral complex. For a 10 percent rating, there is no requirement for a history of surgical repair or a prescribed brace, cane, or walker, but for a 20 percent rating, there must be a surgical repair and a prescription for either a brace, cane, or walker. For a 30 percent rating, there must be a surgical repair and a prescription for a brace as well as a cane or walker. “Surgical repair” does not include arthroscopy to remove loose bodies or joint aspiration. The Board notes that with respect to both the old and new versions of diagnostic code 5257, the Court recently held in English v. Wilkie, 30 Vet. App. 347, 352-53 (2018), that diagnostic code 5257 does not require or categorically favor objective medical evidence for purposes of evaluating knee instability. As such, the Board finds that, based on the Veteran’s credible statements regarding symptoms of buckling or giving way in his knees, separate ratings for right and left knee joint instability are warranted. With respect to the evaluations warranted under diagnostic code 5257, the Board notes that the older rating criteria are more advantageous to the Veteran with respect to the reported instability in the left knee joint. To that end, although the medical evidence of record reflects a history of a right ACL tear, there is no evidence of a sprain, incomplete ligament tear, or complete ligament tear in the left knee. As such, a compensable rating is not available to him under the new version of diagnostic code 5257 with respect to his recurrent instability. However, he is entitled to a compensable rating under the old version of diagnostic code 5257. As set forth above, the terms “slight,” “moderate,” and “severe” are not defined in the prior version of the regulations. However, based on the Veteran’s regular use of a knee brace for his left knee, the Board finds that the criteria for a separate 10 percent rating under the old version of diagnostic code 5257 have been satisfied throughout the period on appeal. With respect to his right knee, the Board finds that the Veteran is entitled to a 20 percent rating under the old rating criteria. To that end, as discussed above, he has been provided with a knee brace for his right knee from a medical provider and he has undergone surgery to treat a torn ACL in his right knee. The new version of the diagnostic code is thus applicable from February 7, 2021. However, it does not appear from the record that the repair of his right ACL was a failed repair. As such, the highest rating available under the new version of diagnostic code 5257 would be a 10 percent disability rating. In contrast, the old version of diagnostic code 5257 does not impose the same requirements with respect to a rating in excess of 10 percent. As such, the Board will apply the more advantageous requirements of the old version of diagnostic code 5257 in assigning a rating. Here, the relevant lay and medical evidence of record reflects more frequent complaints of buckling in the right knee, as well as a history of using a right knee brace for support. As such, the record supports a rating of 20 percent, but no higher, for moderate lateral instability, under the old version of diagnostic code 5257 from March 5, 2014. The Board notes that although the Veteran has consistently reported instability of the right knee joint, the effective date of this separate disability award is from March 5, 2014, because his claim for an increased rating was filed more than a year after the entitlement to a separate rating for right knee instability arose. The Board has also considered whether separate disability ratings are warranted under additional diagnostic codes. Generally, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14. However, the 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). Entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. § §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca. See id. As the Veteran’s disabilities involve injuries to the meniscus in both knees, also known as the semilunar cartilage, it is also appropriate to consider 38 C.F.R. § § 4.71a, diagnostic codes 5258 and 5259, which address disorders of the semilunar cartilage. Diagnostic code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § § 4.71a, Diagnostic Code 5258. This is the only available evaluation under diagnostic code 5258. Diagnostic code 5259, on the other hand, provides for a 10 percent evaluation based on symptomatic removal of the semilunar cartilage. 38 C.F.R. § § 4.71a, Diagnostic Code 5259. This is the only available evaluation under diagnostic code 5259. The Veteran has undergone surgeries on both knees involving partial removal of the semilunar cartilage. Although the various VA examiners of record have inconsistently found whether he has residual symptoms due to these surgeries, he has consistently reported symptoms such as pain in both knees. Affording him the benefit of the doubt, the Board finds that his partial meniscectomy has been symptomatic. The partial cartilage removal and its residual symptoms raise a question as to whether it is appropriate to assign a separate 10 percent rating for each knee under diagnostic code 5259. The Board notes that because no dislocation of the meniscus was noted, a rating of 20 percent under diagnostic code 5258 is not warranted and thus not at issue. (Continued on the next page)   The ratings assigned herein address the Veteran’s limited motion in his bilateral knees, as well as recurrent instability. To that end, both the old and new versions of diagnostic code 5010 contemplates limitation of motion. The Board thus finds that this manifestation of his bilateral knee disabilities overlaps with and has already been compensated by his ratings for limitation of flexion under diagnostic code 5260 for limitation of flexion. Moreover, although the Veteran reported at a Board hearing in 2009 that his left knee would sometimes lock, the Veteran has otherwise consistently denied locking in his knees. As such, the weight of the competent, credible evidence of record does not support a history of frequent locking or recurrent effusion in his knee joints. As such, the Board finds that the assignment of a 10 percent evaluation is not warranted warranted in either knee under diagnostic code 5259. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.