Citation Nr: 21010014 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-37 925 DATE: February 23, 2021 ORDER For the time period from June 1, 2010 to January 30, 2017, entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limited extension is denied. For the time period from June 1, 2010 to January 30, 2017, entitlement a rating in excess of 10 percent for right knee DJD with limited flexion is denied. Fort the time period from June 1, 2020 to January 30, 2017, entitlement to a rating of 20 percent, but no higher, for right knee DJD with ligament laxity is granted. For the time period from June 1, 2010 to January 30, 2017, entitlement to a separate 20 percent rating for right knee DJD with frequent locking, pain and effusion is granted. From the time period from March 1, 2018 to the present, entitlement to a rating in excess of 30 percent for right knee DJD status post total knee replacement is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the time period from June 1, 2010 to October 5, 2011 is remanded. FINDINGS OF FACT 1. From June 1, 2010 to January 30, 2017, the Veteran’s right knee extension was limited, at worst, to 10 degrees. 2. From June 1, 2010 to January 30, 2017, the Veteran’s right knee flexion was limited, at worst, to 40 degrees. 3. From June 1, 2010 to January 30, 2017, the Veteran’s right knee instability is best characterized as moderate. 4. From June 1, 2010 to January 30, 2017, the Veteran experienced frequent right knee pain, effusion, and locking. 5. From March 1, 2018 onward, the Veteran’s right knee DJD status post total knee replacement is manifested by intermediate degrees of residual weakness, pain, or limitation of motion, with extension limited 5 degrees and flexion limited to 110 degrees, and no instability. CONCLUSIONS OF LAW 1. From June 1, 2010 to January 30, 2017, the criteria for a disability rating in excess of 10 percent for the Veteran’s right knee DJD with limited extension were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 2. From June 1, 2010 to January 30, 2017, the criteria for a disability rating in excess of 10 percent for right knee DJD with limited flexion were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. From June 1, 2010 to January 30, 2017, the criteria for a disability rating of 20 percent, but no higher, for right knee DJD with instability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. From June 1, 2010 to January 30, 2017, the criteria for right knee DJD with locking, pain, and effusion in the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 5. From March 1, 2018 onward, the criteria for a disability rating in excess of 30 percent for right knee DJD status post total knee replacement were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1999 to November 1999 and October 2001 to August 2002. This case has a unique procedural history. Originally, the appeal stemmed from the Veteran’s disagreement with the agency of original jurisdiction’s (AOJ’s) March 2010 decision to reduce the Veteran’s right knee disability ratings from 20 to 10 percent for limitation of extension and from 10 to 0 percent for limitation of extension, effective June 1, 2010. See an April 2010 Statement in Support of Claim. The Veteran perfected an appeal as to the propriety of these reductions, and in a March 2012 decision, the Board found the reductions, effective June 1, 2010, to be proper. In that decision, the Board also remanded the question of whether higher knee ratings may be warranted following the upheld reductions, and determined that the Veteran had reasonably raised the issue of entitlement to a TDIU. For the time period from June 1, 2010 to January 30, 2017, the Veteran has been awarded three separate disability ratings for his right knee disability: a 10 percent rating based on limitation of extension under Diagnostic Code 5261, a 10 percent rating based on limitation of flexion under Diagnostic Code 5260, and a 10 percent rating based on slight instability (laxity) under Diagnostic Code 5257. The Veteran underwent a total knee replacement on January 30, 2017, and his rating increased to 100 percent based on temporary total rating regulations, and under the criteria outlined under Diagnostic Code 5055 from January 30, 2017 to March 1, 2018. From March 1, 2018 to the present, a single 30 percent rating has been in effect under Diagnostic Code 5055. The Board will assess the propriety of these assigned ratings for the time period from the June 1, 2010 reduction to the present. The Board notes that in a June 2016 rating decision, the AOJ awarded entitlement to a TDIU effective October 5, 2011. Because the appeal period under review stems from January 1, 2010, the issue of whether TDIU can be awarded prior to October 5, 2011 remains on appeal and will be discussed below. The Veteran testified at a Travel Board hearing before an Acting Veterans Law Judge in September 2011. A transcript of that hearing has been associated with the claims file. As noted by the Board in a prior April 2018 remand, the Board informed the Veteran that the individual who presided over the September 2011 hearing was no longer employed with the Board, and offered the Veteran the opportunity to appear at a second hearing. The Veteran did not respond to the Board’s letter, and has not since requested to re-appear at a Board hearing. As such, the Board will proceed with adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 portrays 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 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). 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 actually 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. The Board is also required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under Diagnostic Code (DC) 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under DC 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under 38 C.F.R. § 4.71a, DC 5257, which evaluates recurrent subluxation or lateral instability, 10, 20 and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or lateral instability, respectively. 38 C.F.R. § 4.71a, DC 5257. VA amended this criteria, effective February 7, 2021, but the changes cannot be applied retroactively—that its, they cannot be used to rate the Veteran’s disability for the time period under review prior to February 7, 2021. As such, for all times prior to February 7, 2021, the former criteria apply. Insofar as the appeal period under review extends to the date of this decision, the Board will address the applicability of the amended criteria for the time period from February 7, 2021 in a brief discussion below, and apply either the former or the current criteria for that time period, whichever is more favorable to the Veteran. Under DC 5258 for dislocated semilunar knee cartilage with frequent episodes of “locking,” pain, and effusion into the joint is assigned a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259 for symptomatic removal of the semilunar knee cartilage a 10 percent evaluation is assigned. C.F.R. § 4.71a, DC 5259. Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include Diagnostic Code 5256 for ankylosis of the knee; DC 5262 for impairment of the tibia and fibula; and DC 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Under DC 5055, a 30 percent rating is warranted as a minimum rating for knee replacement. With intermediate degrees of residual weakness, pain, or limitation of motion, the condition is rated by analogy to DC 5256, 5261, or 5262. A 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Under the former criteria, in effect prior to February 7, 2021, a maximum rating of 100 percent is warranted for one year following implantation of prosthesis. 38 C.F.R. § 4.71a, DC 5055. The current criteria reduces that time period to 4 months. As the Veteran’s knee replacement occurred well before the regulation change, the more favorable former criteria apply. The Board adds that the other criteria outlined in Diagnostic Code 5055 did not change on February 7, 2021, although several Notes were added to clarify what types of surgery qualify for ratings under 5055, and to direct that additional ratings under other musculoskeletal diagnostic codes may not be assigned for that joint, unless otherwise directed. At the outset, the Board notes that throughout the entire period under review, the evidence does not support an award for increased ratings for the right knee under Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5262 for impairment of tibia and fibula, or Diagnostic Code 5263 for genu recurvatum. This is because none of these impairments have been demonstrated upon examination or at any treatment visit, or otherwise described by the Veteran at any time during the appeal period. Other codes however, may be applicable, and they will be discussed below. June 1, 2010 to January 30, 2017 As noted above, the Veteran currently is in receipt of three separate 10 percent ratings for limitation of flexion (5260), extension (5261) and laxity (5257) for the period between June 1, 2020 to January 30, 2017. For the reasons discussed below, the Board finds that ratings higher than 10 percent during this time period for limitation of flexion or limitation of extension under Diagnostic Code 5260 and 5261 respectively, are not warranted. However, with respect to right knee instability (characterized as “laxity” on the Veteran’s rating codesheet), the Board resolves all doubt in the Veteran’s favor and finds that an increased rating to 20 percent, but no higher, may be granted based on the presence of “moderate” instability for all times from June 1, 2010 to January 30, 2017. In addition, the Board also finds there is evidence of frequent locking, effusion and pain warranting the assignment of a separate 20 percent rating under Diagnostic Code 5258 for the time period from June 1, 2010 to January 30, 2017. In an August 2010 VA treatment record, the Veteran stated his right knee pain was aggravated when climbing stairs and biking. In a September 2010 VA treatment record, the Veteran stated he experienced pain in the knee that was aching, sharp, and throbbing. On his September 2010 substantive appeal, the Veteran stated that his right knee disorder had not improved and will need a knee replacement. In a January 2011 VA treatment record, the Veteran complained of right knee pain that was preventing him from exercising. In a January 2011 VA treatment record, the Veteran stated he had aggravated right knee pain for the prior two to three months. The Veteran denied any recent injury and denied falls or swelling. The Veteran stated he had difficulty walking due to pain and had been limiting his activities. The medical provider observed no right knee effusion or joint line tenderness. However, the medical provider observed the Veteran’s flexion to be moderately restricted. In a January 2011 VA treatment record, the Veteran stated he had swelling if the knee was twisted or with prolonged walking. The Veteran felt as if the knee “pops out the socket” while turning in bed. The Veteran stated he also has knee locking. The medical provider observed the Veteran’s right knee to have mild diffuse effusion, limited range of motion in extension to 5 degrees, limited range of motion in flexion to 90 degrees. The medical provider stated he Veteran’s right knee is stable but is lax with the Lachman/anterior drawer. The medical provider observed the Veteran to have antalgic stiff right knee gait pattern. In a March 2011 VA treatment record, the Veteran complained of right knee pain. The Veteran stated that if he falls down it takes him 30 to 40 minutes to get up. The Veteran stated he experienced swelling. He stated he was able to walk a reasonable distance. On examination, the medical provider observed that the Veteran guarded, and was difficult to examine. The medical provider stated the Veteran was able to straighten the right leg, but the Veteran experienced discomfort at full extension. The medical provider observed the Veteran’s flexion to go to 131 degrees, compared to left knee flexion from 0 to 140 degrees. The medical provider opined that the Veteran had a probable tear medial and lateral menisci, which may be blocking the right knee motion. In a June 2011 VA treatment record, the Veteran was treated for chronic bilateral knee pain. The medical provider stated the Veteran’s right knee was painful with DJD and stable. The medical provider stated the Veteran underwent a prior arthroscopy in 2005. Significantly, in an August 2011 private treatment letter, Dr. J.D.A. stated that the Veteran’s right knee had significant osteoarthritis. Dr. J.D.A. stated that the Veteran had bone on bone opposition, moderate instability, fairly persistent effusion, and exquisite discomfort with weight bearing. Dr. J.D.A. opined that the Veteran’s right knee disorder has not improved and continues to deteriorate. Dr. J.D.A. stated the Veteran will require a knee replacement. In a January 2012 VA treatment record, the Veteran reported chronic right knee pain that had worsened due to a recent fall. The Veteran stated his knee gave out three weeks prior and he has experienced pain since. In a March 2012 VA examination, the examiner indicated the Veteran has DJD in the right knee. The Veteran stated he experienced pain, particularly when he squats, kneels, or climbs. He stated he has swelling when he squats or overexerts his knee. He stated he has discomfort when he walks for long periods. The Veteran stated that he has flare-ups with daily pain and increased severity of pain with physical activity. The March 2012 VA examiner observed the Veteran’s right knee flexion with pain at 10 degrees, but range of motion to 40 degrees. Extension was limited to 10 degrees. The examiner also observed the Veteran’s extension to end at 5 degrees. The examiner indicated the Veteran has functional loss in the right knee due to less movement than normal and pain on movement. The examiner indicated he was unable to test the Veteran’s right knee for stability. The examiner indicated there is no evidence of subluxation in the right or left knee. The examiner indicated the Veteran had a surgical procedure for a meniscal condition in the right knee with meniscal tear and frequent episodes of joint effusion. In a May 2012 VA treatment record, the Veteran reported that he had experienced right knee pain for many years. He stated he has suffered right knee pain and instability for several years. He stated that he experiences daily pain. On examination, the medical provider observed the Veteran’s right knee range of motion to be to 3 degrees of extension and 85 degrees of flexion. The medical provider observed the Veteran to have positive anterior drawer sign and evidence of chronic effusion. In a January 2015 VA treatment record, the Veteran complained of pain in the knee that is improved with a brace and rest. The Veteran stated there is no swelling or redness of the knee. The medical provider observed the Veteran’s gait to be normal with the right knee brace. On the April 2016 VA examination, the examiner indicated the Veteran had degenerative arthritis of the right knee. The Veteran stated he had flare-ups that include swelling. The Veteran also stated he had functional loss in the right knee when he was on his right knee. On examination, the examiner observed the Veteran’s right knee range of motion for flexion to be 10 degrees to 100 degrees and for extension to be 100 degrees to 10 degrees. The examiner observed pain on examination that caused the Veteran functional loss. The examiner indicated the Veteran has pain on flexion, extension, and weight bearing. The examiner indicated that pain and lack of endurance limited the Veteran’s functional ability with repeated use over time. The examiner also indicated the Veteran’s pain and lack of endurance limited the Veteran’s functional ability with flare-ups. The examiner indicated the Veteran did not have ankylosis. The examiner observed the Veteran to have recurrent effusion. The examiner indicated the Veteran did not have joint instability in the right knee. The examiner indicated the Veteran has had a meniscus (semilunar cartilage) condition in the right knee. In a July 2016 statement, the Veteran’s representative stated that the Veteran disagreed with the findings of a 10 percent evaluation for the Veteran’s right knee disorder. The representative stated that the Veteran has more than just slight instability in the right knee. In an August 2016 VA treatment record, the Veteran complained of bilateral knee pain. The Veteran stated that the right knee pops and give out. The medical provider observed the Veteran’s right knee to be slightly swollen. In an August 2016 VA treatment record, the Veteran complained of worsening right knee pain affecting mobility and overall quality of life. The Veteran reported daily swelling, even with short duration weight bearing. The Veteran also stated he experiences intermittent locking with near fall events. The Veteran noted knee joint and limb instability. The medical provider observed there to be knee effusion with right flexion limited to 110 degrees. The medical provider observed some loss of right knee extension. The medical provider assessed the Veteran to have chronic worsening of right knee pain with clinical features of knee joint and limb instability (weakness), intermittent locking of the joint due to degenerative meniscal tear, and a tibiofemoral and patella femoral traumatic arthropathy. In an October 2016 VA treatment record, the Veteran complained of right knee pain. On examination, the medical provider observed the Veteran to have an enlarged right knee with a slight varus posture. The medical provider observed that neither knee had effusion or tenderness. The medical provider observed the Veteran’s right knee range of motion to be -15 to 125 degrees in flexion and the left knee range of motion to be normal. The Veteran underwent a total right knee arthroplasty on January 30, 2017. Concerning the Veteran’s disability rating for flexion, currently 10 percent for the period from June 1, 2010 to January 30, 2017, the Board finds that an increased rating is not warranted. Indeed, as noted above, to warrant a 20 percent or higher rating, flexion must be limited to 30 degrees or less. At worst, the Veteran’s limitation of flexion was noted to be to 40 degrees. With respect to extension, to warrant a 20 percent or higher rating, extension must be limited to 15 degrees or less. At worst, the Veteran’s limitation of flexion was noted to be to 10 degrees. In considering the Veteran’s ratings based on limitation of motion, the Board has considered the Deluca factors discussed above. While the Veteran did report flare-ups, when asked about the impact flare-ups have on his functioning, the Veteran reported increased pain and swelling, but did not report additional range of motion loss. See the March 2012 VA examiner’s report; see the April 2016 VA examiner’s report. Indeed, the March 2012 VA examiner specifically answered “no” when asked if the Veteran experienced additional range of motion loss after repetitive use. While additional pain, fatigue and weakness may occur after repetitive use or during flare-ups, the evidence does not suggest that the Veteran’s range of motion was affected, warranting an increased ratings above what has already been granted under Diagnostic Codes 5260 or 5261 for the time period under review prior to his total knee replacement. That stated, the Board has considered the effect repetitive use and flare-ups have on other functioning. It is clear from the record that the Veteran experienced frequent swelling and effusion of his right knee, especially after flare-ups. He has also reported locking and increased pain. Given that the Board is not awarding an increased rating based on Deluca factors (to include pain) under the limitation of motion codes, it is not pyramiding to separately award a rating under Diagnostic Code 5258 based on symptoms of frequent episodes of locking, pain and effusion into the joint. The Board resolves all doubt in the Veteran’s favor and assigns this separate rating for the entire time period from June 1, 2010 to January 30, 2017. Finally, with respect to instability, the Board finds it probative that the Veteran has reported right knee buckling and falling during this period under review, requiring the use of a brace. This, coupled with the report of the Veteran’s treating physician, Dr. J.D.A., who indicated in an August 2011 private treatment record that he Veteran had “moderate” instability in the right knee, supports a finding that the Veteran’s right knee disability has manifested in instability that most closely approximates the criteria for a 20 percent rating (based on moderate instability) throughout this period under review, notwithstanding the fact that objective testing did not always identify the presence of instability on examination. As such, an increased rating under Diagnostic Code 5257 from 10 to 20 percent is warranted for the time period from June 1, 2010 to January 30, 2017. No other additional or higher ratings are warranted under these or separate codes. As noted above, Diagnostic Codes 5256, 5262 and 5263 are inapplicable in this case. Moreover, a separate rating under Diagnostic Code 5259 based on symptomatic residuals of removal of semilunar cartilage would amount to impermissible pyramiding. In sum, for the period from June 1, 2010 to January 30, 2017, a rating greater than 10 percent for limitation of flexion under Diagnostic Code 5260 is denied. For the period from June 1, 2010 to January 30, 2017, a rating greater than 10 percent for limitation of extension under Diagnostic Code 5260 is denied. For the period from June 1, 2010 to January 30, 2017, an increased rating from 10 to 20 percent, but no higher, for right knee instability under Diagnostic Code 5257 is granted. For the period from June 1, 2010 to January 30, 2017, a separate rating of 20 percent for frequent locking, pain and effusion under Diagnostic Code 5258 is granted. March 1, 2018 to present As noted above, the Veteran underwent a total right knee replacement on January 30, 2017. A total 100 percent rating has been granted from January 30, 2017 to February 28, 2018. Effective March 1, 2018, a 30 percent rating under Diagnostic Code 5055 has been in effect. For the reasons discussed below, a higher rating is not warranted. In a March 2017 VA treatment record, following the Veteran’s surgery, the medical provider observed the Veteran to have full extension, and flexion passed 120 degrees actively and passively. In a May 2017 VA treatment record, the Veteran was treated for a postoperative follow-up. The Veteran stated the pain in the right knee has improved but continues to experience swelling. The examiner observed the Veteran’s right knee to have a range of motion of 0 to 110 degrees, with no evidence of instability. In a February 2018 VA treatment record, the Veteran complained of right knee swelling for the prior month. He stated he experiences the swelling almost every day after long walks. The Veteran denied instability, redness, or might pains. On examination, the Veteran’s right knee showed active range of motion of 5 degrees in extension and 120 degrees in flexion, which was pain-free. On the August 2020 VA examination, the examiner indicated that although he underwent a total knee replacement in 2017, he continues to experience pain and swelling. The Veteran stated he experiences aching of the knee with swelling and intermittent locking. The Veteran stated he has pain with prolonged standing or walking. The Veteran reported that he did not experience flare-ups. The Veteran also reported that he had functional loss or function impairment with pain on walking, bending, and prolonged standing. The August 2020 VA examiner observed the Veteran’s right knee range of motion to be flexion of 5 to 110 degrees and extension to be 110 to 5 degrees. The examiner stated that the Veteran’s right knee range of motion causes difficulty with bending and walking. The examiner observed pain on examination of the right knee in flexion and extension, which causes functional loss. The examiner observed the Veteran’s left knee to be normal with no evidence of pain. The examiner did not observe the Veteran to have ankylosis. The examiner observed the Veteran to have a history of moderate lateral instability, however, the examiner did not observe the Veteran to have right or left knee instability at the examination. The examiner also observed the Veteran to have recurrent effusion, as the Veteran reported intermittent swelling in the right knee. The examiner indicated the Veteran has a history of meniscal tear in the right knee and the Veteran reported right knee locks and pops. Also, the examiner indicated the Veteran underwent a total knee replacement in January 2017 with intermediate degrees of residual weakness, pain, or limitation of motion. The examiner indicated the veteran occasionally uses a cane or walker to walk. Upon review of the above, the Board finds that the evidence does not support an increased rating higher than 30 percent for the Veteran’s right knee disability, for the time period from March 1, 2018 to the present. The Board finds that the Veteran’s right knee disability, post replacement, did not cause chronic residuals consisting of severe painful motion or weakness in the affected extremity as required for the higher rating of 60 percent under DC 5055. Here, the August 2020 VA examiner observed the Veteran to have intermediate degrees or residual weakness, pain, or limitation of motion. As such, a higher 60 percent rating under Diagnostic Code 5055 is not warranted after March 1, 2018. Diagnostic Code 5055 stipulates that with intermediate degrees of residual weakness, pain, or limitation of motion, the condition is rated by analogy to Diagnostic Code 5256, 5261, or 5262. Here, there is no ankylosis or tibia and fibula impairment, so a rating under 5256 or 5262 is not warranted. Rating under the limitation of motion codes would also not avail the Veteran, as he denied flare-ups at his most recent post-surgical examination, and range of motion test results obtained upon examination since his surgery do not show severe enough limitation to warrant a compensable rating for either limitation of flexion or extension. The August 2020 examiner observed no instability, and while symptoms such as locking and effusion may be contemplated under Diagnostic Code 5258, they are not compensated at a level higher than the 30 percent minimum rating already assigned under Diagnostic Code 5055. As noted above, effective February 7, 2021, Diagnostic Codes 5055 and 5257 were amended; however, the changes do not impact the analysis above. Indeed, the actual criteria corresponding to each rating level Diagnostic Code 5055 did not change. Moreover, newly added Note (1), effective February 7, 2021 indicates that when an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051–5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed. Thus, application of the revised Diagnostic Code 5257 for all times after February 7, 2021 is prohibited, given the rating already assigned under Diagnostic Code 5055. In sum, for the time period from March 1, 2018 to the present, a rating higher than 30 percent under Diagnostic Code 5055 is denied. REASONS FOR REMAND Entitlement to a TDIU prior to October 5, 2011 is remanded. Remand is required to refer the Veteran’s TDIU claim to the Director of Compensation Service for extraschedular consideration for the period on appeal from June 1, 2010 to October 5, 2011, the date TDIU is currently effective. The record indicates that the Veteran has been unemployed since August 2010, and there is evidence to suggest that he may have left his employment due to service-connected disabilities. VA policy is to grant a TDIU in all cases in which service-connected disabilities prevent the Veteran from engaging in gainful employment. 38 C.F.R. § 4. 16(b). The Board is precluded from granting TDIU in the first instance if the Veteran does not meet the schedular TDIU percentage requirements. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board is required to remand the claim so that it can be referred to the Director of Compensation Service for adjudication under 38 C.F.R. § 4.16(b). In this case, even considering the increased ratings awarded above, the Veteran does not meet the schedular criteria for a TDIU during the period from June 1, 2010 to October 5, 2011. On remand, the claim should be referred to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). This matter is REMANDED for the following action: 1. Refer the case to the Director of Compensation Service for extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b) for the appeal period from June 1, 2010 to October 5, 2011. 2. Then readjudicate the issue of entitlement to a TDIU for the time period from June 1, 2010 to October 5, 2011. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.