Citation Nr: 21010324 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-19 427 DATE: February 24, 2021 ORDER Entitlement to an increased rating greater than 10 percent for hypertension is denied. Entitlement to an increased rating greater than 10 percent for right knee degenerative joint disease (DJD) prior to July 27, 2015 is denied. Entitlement to an increased rating of 30 percent, but no higher, for right knee instability from November 4, 2009 to April 24, 2015 is granted. Entitlement to an increased disability rating greater than 30 percent for right knee instability from April 25, 2015 is denied. Entitlement to an increased rating greater than 30 percent for total right knee replacement from September 1, 2016 is denied. REMANDED Entitlement to service connection for type II diabetes mellitus (DM) is remanded. Entitlement to an increased rating greater than 10 percent for a low back condition is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension was manifested by a history of diastolic pressure predominantly 100 or more and required continuous medication for control. It was not manifested by diastolic pressure predominantly at least 110 or more or systolic pressure predominantly 200 or more. 2. Prior to July 27, 2015, the Veteran’s right knee exhibited painful, decreased range of motion, but was not manifested by limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more. 3. From November 4, 2009 to April 24, 2015, the Veteran’s right knee was manifested by severe instability. 4. From April 25, 2015, the Veteran’s right knee was manifested by severe instability. 5. From September 1, 2016, the Veterans total right knee replacement was not manifested by moderately severe residuals of weakness, pain, or limitation of motion; it was not manifested by chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.104, Diagnostic Code 7101 (2020). 2. The criteria for a disability rating greater than 10 percent for right knee DJD prior to July 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5010 (2020) (2021). 3. The criteria for a disability rating of 30 percent, but no higher, for right knee instability from November 4, 2009 to April 24, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020) (2021). 4. The criteria for a disability rating greater than 30 percent for right knee instability from April 25, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020) (2021). 5. The criteria for a disability rating greater than 30 percent for total right knee replacement from September 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2020) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to October 1998. The history of this appeal is long. The Veteran appeals an August 2010 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for DM, entitlement to a compensable rating for hypertension, and ratings greater than 10 percent for a low back disability and 10 percent for right knee DJD, among other things. A Board of Veterans’ Appeals (Board) hearing was held in October 2015. A transcript is of record. In May 2018, the Board increased the Veteran’s rating for hypertension to 10 percent. Most recently, in May 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded the May 2018 Board decision that denied entitlement to service connection for DM, entitlement to an effective date earlier than December 19, 2014 for a separate rating for right knee instability, entitlement to disability ratings greater than 10 percent for hypertension, 10 percent for a low back disability, 10 percent for right knee instability, and 10 percent for a right knee disability prior to July 27, 2015 and 30 percent from September 1, 2016. In December 2019, the Board remanded these claims for further development consistent with the JMPR. Subsequent to this development, the AOJ rated the Veteran’s right knee instability at 10 percent from February 19, 2014 to April 25, 2015 and 30 percent thereafter. See August 2020 rating decision. The appeal is now back before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Hypertension The Veteran’s service-connected hypertension is rated at 10 percent under Diagnostic Code (DC) 7101. See 38 C.F.R. § 4.104, DC 7101. Based on the evidence below, the Board finds the Veteran is not entitled to a disability rating greater than 10 percent. Under DC 7101, hypertension warrants a 10 percent rating where diastolic pressure is predominately 100mm or more; systolic pressure predominately 160mm or more; or if there is a history of diastolic pressure predominately 100mm or more and the individual requires continuous medication for control. Id. A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110mm or more, or systolic pressure predominantly 200mm or more. Id. After review of the record, the Veteran is not entitled to a rating greater than 10 percent as his diastolic pressure is not predominately 110mm or more, nor is his systolic pressure predominantly 200mm or more. Medical treatment records during the entire appeal period reflect the Veteran’s diastolic pressure is predominantly under 110mm and his systolic pressure is under 200mm. See, e.g., November 2009 Pensacola Naval Hospital (PNH) records (121/80); October 2011 VA treatment records (133/89; “blood pressure is at goal”); February 2012 VA treatment records (131/88); September 2013 PNH records (115/73); January 2014 PNH records (121/75); July 2015 PNH records (124/68); June 2016 PNH records (148/90); May 2017 PNH records (135/83); July 2018 PNH records (138/88); March 2019 PNH records (128/91). Further, the Veteran does not contend his diastolic pressure is 110 or more, or that his systolic pressure is 200 or more. Accordingly, the Board finds that the criteria for a disability rating greater than 10 percent for hypertension have not been met. Right knee The Veteran contends his right knee condition is more severe than his current ratings indicate. He is currently service connected for right knee DJD rated at 10 percent prior to July 27, 2015 under 38 C.F.R. § 4.71a, DCs 5260-5010. He also has a separate rating for right knee instability under DC 5257, rated at 10 percent from February 19, 2014 to April 24, 2015, and 30 percent from April 25, 2015. On July 27, 2015, the Veteran underwent a total right knee replacement. The AOJ changed the Veteran’s right knee DJD rating from DCs 5260-5010 to DC 5055 and assigned a temporary 100 percent rating from the date of his surgery, July 27, 2015 to August 31, 2016; this constitutes a complete grant and thus, this time period is not on appeal. As such, the Board will consider the period prior to July 27, 2015 under DC 5260-5010 in addition to the period from September 1, 2016 under DC 5055, when the AOJ reduced his rating to 30 percent. See August 2020 rating decision codesheet. Knee disabilities are generally rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran’s service-connected right knee condition under each DC and apply the appropriate ratings without having any of the symptomatology by duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. However, the new rating criteria are not applicable prior to its effective date of February 7, 2021. For rating the knee, changes were made to DCs 5257 and 5262. Additionally, changes were made to DC 5010 for arthritis and DC 5055 for total knee replacement. Thus, both the old and new rating criteria for these DCs will be analyzed by the Board for the Veteran’s ratings. Limitation of Motion prior to July 27, 2015 Prior to July 27, 2015, the Veteran’s right knee DJD was rated as 10 percent disabling based on demonstrated pain with movement under DCs 5260-5010. See March 1999 rating decision. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. As the new rating criteria were not applicable for rating purposes until February 7, 2021, the Veteran’s knee limitation of motion prior to July 27, 2015 will be rated solely under the old rating criteria. DC 5010 provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to DC 5003. DC 5003 provides the criteria for rating disabilities that are due to degenerative arthritis. In instances where the loss of motion is non-compensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each major joint or group of minor joints affected by the loss of motion. In the absence of any loss of motion, a 20 percent disability rating is assigned where there is x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Knees are considered major joints for rating purposes. See 38 C.F.R. § 4.45. Under this diagnostic code, the Veteran would not be entitled to a rating greater than 10 percent as the right knee is only one major joint. Accordingly, the Board must analyze the Veteran’s right knee’s range of motion under DCs 5260 and 5261. Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. Id. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Id. Similarly, DC 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. Id. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as 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. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Additionally, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the appropriate diagnostic code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Prior to July 27, 2015, the Veteran only received one VA examination. There, the April 2010 VA examiner recorded the Veteran’s right knee flexion to 120 degrees with full extension. See April 2010 VA examination report. As such, the Veteran’s right knee condition would not be compensable for VA benefits under DC 5260 and 5261 as a compensable rating requires either flexion limited to 45 degrees or less, or, extension limited to 10 degrees or more. However, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the diagnostic code for the painful joint. See Sowers, 27 Vet. App. at 478. Here, the Veteran is already in receipt of the minimum compensable rating of 10 percent under DC 5260. Id. Thus, the Veteran would only be entitled to a higher rating if his right knee flexion was limited to 30 degrees or less, or extension was limited to 10 degrees or more. For this, the Board must also consider whether a higher rating is warranted based on any additional functional loss due to pain, weakness, fatigability, incoordination during flare-ups or with repeated use over time that results in the equivalent flexion limited to 30 degrees or less or extension limited to 10 degrees or more. See DeLuca, 8 Vet. App. at 204-07; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. After review of the extensive medical records prior to July 27, 2015, the Board finds the medical and lay evidence does not support a higher rating. During the relevant appeal period, the Veteran received regular “Synvisc injections…every 6 months or so” to help alleviate the Veteran’s symptoms, such as pain. See, e.g., October 2011 VA treatment records. He reported the relief from Synvisc injections “lasts about 4-6 months.” See April 2012 PNH records. Despite these injections, the Veteran reported that he could no longer run, walk great lengths or for a long period of time, or “climb more than a few stairs at a time.” See December 2009 VA Form 21-4138. He noted his symptoms were exacerbated in the rain and cold weather and his knee pain was affecting his activities of daily living (ADLs). See October 2011 PNH records (“affecting ADLs… cannot do many outdoor activities with his family, such as long walks or running”); April 2012 PNH records. At the April 2010 VA examination, the Veteran confirmed these symptoms and functional loss found in the record. He noted his pain level was a “1 to 2 over 10” daily, and his right knee was aggravated by walking long distances or climbing one flight of stairs. See April 2010 VA examination report. He noted the pain after said aggravation is “like hitting [his knee] with a hammer” and is a pain level of “4 to 5 out of 10.” Id. Further, the Veteran reported flare-ups occurred when he was required to stand or walk for “6-7 hours per day.” Id. Unfortunately, the VA examiner did not note or estimate whether the Veteran suffered any additional functional loss due to pain, fatigability, weakness or incoordination during flare-ups or with repeated use over time. As such, the Board must review the entire record to determine whether the Veteran suffered additional functional loss with repeated use or during flare-ups. In July 2010, the Veteran sought treatment for right knee pain; he noted pain “all over his knee” but his flexion was only limited to 120 degrees with extension beyond 0 degrees. See July 2010 PNH records. May 2013 PNH records reflect the Veteran had pain on movement but “normal” motion. Later, the record reflects the Veteran underwent physical therapy for his right knee in 2013. See June 2013 PNH records. There, the Veteran’s range of motion varied from flexion limited to 125 degrees with full extension to the full range of motion. Id. (active motion: flexion to 125 degrees; passive motion: flexion to 135 degrees); August 2013 PNH records (flexion to 140 degrees with full extension). The Board concludes the Veteran’s statements of chronic, constant right knee pain and reported flare-ups after repeated use over time are credible; however, even when the Veteran seeks medical treatment for increased right knee pain, including physical therapy and Synvisc injections, his range of motion is still recorded as noncompensable for VA ratings purposes. The evidence reflects the Veteran cannot run or walk for long periods of time and he cannot climb stairs due to increased pain and the occurrence of flare-ups, but it does not reflect his range of motion decreased to flexion limited to 30 degrees or less or extension limited to 10 degrees or more during these flare-ups. As such, the Board finds the evidence of record does not reflect right knee flare-ups and repeated use over time result in functional loss equivalent to flexion limited to 30 degrees or less or extension limited to 10 degrees or more. Further, the Veteran is not entitled to a separate rating under DC 5261. Any second, separate rating under DC 5261 for painful motion is impermissible as his right knee symptoms of painful motion are fully addressed under DC 5260 and assigning an additional rating would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology of pain. 38 C.F.R. § 4.14; Sowers, 27 Vet. App. at 478. Thus, the Board finds the Veteran is not entitled to a rating greater than 10 percent for right knee DJD prior to July 27, 2015. Instability As noted above, the rating criteria under DC 5257 changed on February 7, 2021. As such, the Board must consider the Veteran’s instability under both the new and old rating criteria. Under the old rating criteria, DC 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. “Nothing in [Code] 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under the new rating criteria for a recurrent subluxation of instability of the knee, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. Finally, a 30 percent rating is warranted for a disability manifest as unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. For patellar instability of the knee, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Id. And a 30 percent rating is applied for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. The Veteran’s right knee instability is rated at 30 percent disabling under DC 5257 from April 25, 2015. This is the maximum rating allowed under this diagnostic code and the Board will not disturb this rating. As such, the Board will only address entitlement to an increased rating for right knee instability prior to April 25, 2015. Again, the new rating criteria went into effect on February 7, 2021; therefore, the Veteran’s knee instability prior to April 25, 2015 will be rated solely under the old rating criteria. After review of the medical and lay evidence of record, the Board finds the Veteran’s right knee exhibited severe instability prior to April 25, 2015. In November 2009, the Veteran reported to use a metal brace. See November 2009 VA Form 21-4138. The record reflects he was prescribed this brace from his physician. See August 2009 PNH records. The Veteran stated he required the “brace for stability” as he “can often feel [his] right knee trying to move.” See October 2010 NOD. In April 2012, the Veteran’s physician noted this “generic brace that had medial and lateral hinges” was not reducing the Veteran’s symptoms and it was recommended he use “a cane and medial compartment unloader brace” with repeat Synvisc injections as he was too young to receive total knee arthroplasty. See April 2012 VA treatment records. When not wearing the brace, the Veteran reported his right knee gave out. See December 2009 VA Form 21-4138. The record reflects the Veteran regularly reported falling due to his right knee instability. See, e.g., October 2011 PNH records (“given out twice in the past year”); February 2012 PNH records (“has fallen when he could not lift his leg over a curb”); July 2012 VA Form 9 (“I have fallen three times because of my knee giving out”); October 2015 Board hearing testimony at 6 (“6 or 7 falls in the last year”). Further, the medical records reflected right knee subluxation and instability during the appeal period. See, e.g., November 2008 PNH records (“+ instability”); April 2010 VA treatment records (“Veteran uses a hinge-knee brace for stability while at work”); April 2012 PNH records (“the fibular head” was “fairly irritated; however, in slipping them laterally and anteriorly is able to gap the joint [and] provide immediate relief. Further opened up the knee joint…and with gapping on traction was able to reset [the right knee] and give him better range of motion with more comfort.”); April 2012 VA treatment records (“slight opening to valgus stress”); July 2012 PNH records (“subluxation of the iliotibial tendon”); December 2014 VA treatment records (“lateral instability during weightbearing”). Finally, a VA clinician reviewed the Veteran’s PNH records from January 2013 to the present and opined the Veteran had severe right knee instability from 2013 to 2015. See January 2020 VA medical opinion. As such, the Board finds the Veteran’s right knee instability more closely approximated severe instability and he is therefore entitled to a rating of 30 percent under DC 5257 for the entire appeal period. Thus, the Board grants an increased rating of 30 percent, but no higher, for right knee instability from November 4, 2009 to April 24, 2015 but denies a rating greater than 30 percent for right knee instability from April 25, 2015. Total Knee Replacement from September 1, 2016 As noted above, the AOJ changed the Veteran’s diagnostic code after he received a total right knee replacement on July 27, 2015. From July 27, 2015 to August 31, 2016, the Veteran was assigned a temporary 100 percent rating under DC 5055. This constitutes a complete grant for the time period and thus is not on appeal. From September 1, 2016, the Veteran’s total right knee replacement was rated as 30 percent disabling under DC 5055. DC 5055 provides the rating for total knee replacements. The rating criteria under DC 5055 changed on February 7, 2021. As such, the Board must consider the Veteran’s current rating of 30 percent under the new and old rating criteria. Under the old rating criteria, for one year following implantation of a knee prosthesis for a service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; otherwise, a minimum 30 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5055. DC 5055 specifies that a minimum 30 percent rating is assigned, but when there are intermediate degrees of residual weakness, pain, or limitation of motion, the disability is to be rated by analogy under 38 C.F.R. § 4.71a, DCs 5256 (knee ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula) if applicable. However, no such rating by analogy is applied when there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity as that is provided in the maximum 60 percent rating under DC 5055. DCs 5256, 5261, and 5262 do not provide for any higher ratings; the maximum ratings available under these codes are 60 percent, 50 percent, and 40 percent, respectively. Under the new rating criteria, DC 5055 provides a 100 percent rating for the four months following implantation of a knee prosthesis for a service-connected knee disability. Thereafter, the rating criteria remains the same with the exception that a separate evaluation for resurfacing after the conclusion of the 100 percent evaluation period may be warranted. Here, there is no evidence the Veteran’s right knee has undergone resurfacing during the appeal period. Thus, as it pertains to this specific Veteran, the old and new rating criteria are the same. In November 2015, just four months after his total knee replacement, the Veteran was provided a VA examination. There, the VA examiner found the Veteran’s right knee flexion was limited to 125 degrees, extension was limited to 10 degrees, and he had pain on flexion and extension. See November 2015 VA examination report. The Veteran reported his right knee “locks a little bit but [he] recovered within the first three weeks to a month out of the surgery.” Id. He reported he suffers from chronic constant pain, but after the surgery “pretty much the only pain [he has] is where the nerve has been cut” and “the pain is 10 percent of what it used to be.” Id. Although the Veteran reported flare-ups and functional loss with repeated use over time, the VA examiner noted she could not estimate this functional loss without resorting to speculation as there is a deficiency in the state of general medical knowledge to provide such an opinion. Id. However, the VA examiner noted the Veteran had full muscle strength and did not note any weakness in the affected extremity. In September 2017, a VA examiner recorded the Veteran’s flexion to 135 degrees with full extension and noted no pain on the examination with weight and non-weight bearing movement. At this examination, the Veteran reported no right knee flare-ups and the VA examiner concluded the Veteran did not suffer from additional functional loss with repeated use over time. See September 2017 VA examination report. Here, the Veteran also had full muscle strength and did not note any weakness in the affected extremity. The Veteran’s medical records also reflect his total right knee replacement did not have severe painful motion or weakness. For example, in March 2016, the Veteran’s surgeon reported he “recovered from his surgery” at the two week mark and the Veteran “went back to work 6 weeks later” and “he is biking and swimming,” but was told not to climb ladders. See March 2016 VA treatment records. In May 2016, the Veteran reported his right knee is “doing quite well.” See May 2016 VA treatment records. Although the Veteran reported right leg weakness, medical records indicate this was due to the Veteran’s service-connected polyneuropathy and not a residual of the Veteran’s surgery. See, e.g., August 2018 VA treatment records (“weakness of the right leg and foot” due to polyneuropathy, including radiculopathy, axonal peripheral neuropathy, and peroneal neuropathy). As such, the Veteran is not entitled to a higher rating of 60 percent as his total right knee replacement does not have chronic residuals consisting of severe painful motion or weakness. Finally, the Veteran is not entitled to an intermediate rating under DCs 5256, 5261, or 5262. The record does not reflect the Veteran ever had ankylosis of the right knee or nonunion of the tibia and fibula during the appeal period. Although the November 2015 VA examiner found the Veteran’s extension was limited to 10 degrees, this would only provide a rating under DC 5261 of 10 percent, but no higher. Thus, as 30 percent is a higher rating than 10 percent, the Veteran will maintain his 30 percent rating under DC 5055. Other Diagnostic Codes As stated above, the evidentiary record does not suggest the Veteran exhibited right knee ankylosis at any point in the appeal period; hence, a separate rating under DC 5256 is not warranted. Additionally, the evidentiary record does not suggest impairment of tibia and fibula or genu recurvatum. As such, separate disability ratings under DCs 5262 and 5263 are not warranted during the appeal period. DCs 5258 and 5259 address the dislocation and removal of semilunar cartilage. The record reflects the Veteran had a torn meniscus which required four right knee arthroscopies, all occurring before the appeal period. See January 2020 VA medical opinion. Under DC 5259, a 10 percent rating is warranted for residual symptoms after the removal of the semilunar cartilage. Therefore, the Veteran could be entitled to a separate disability rating of 10 percent under DC 5259; however, his reported symptoms are already fully contemplated in his 10 percent rating for limitation of flexion due to pain under DC 5260-5010 prior to July 27, 2015. Assigning an additional, separate rating would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology of painful motion. 38 C.F.R. § 4.14. Additionally, from September 1, 2016, DC 5055 does not allow a separate rating under DC 5259. Hence, separate disability ratings under DCs 5258 or 5259 are not applicable. Accordingly, all potentially applicable diagnostic codes have now been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summation, the Board denies a rating greater than 10 percent for right knee DJD prior to July 27, 2015 under DCs 5260-5010. The Veteran is also denied a rating greater than 30 percent for total right knee replacement from September 1, 2016. However, the Board grants entitlement to an increased rating of 30 percent, but no higher, for right knee instability from November 4, 2009 to April 25, 2015. REASONS FOR REMAND Type II diabetes mellitus In the December 2019 Board remand instructions, the Board requested the AOJ obtain a medical opinion that specifically discussed the Veteran’s post-service evidence of elevated glucose readings, including the readings from October 1999 to March 2006, in compliance with the May 2019 JMPR. See May 2019 JMPR (“this order referred to a series of blood glucose readings taken in October 1999, October 2002, April 2003, July 2003, December 2003, March 2005, June 2005, October 2005, and March 2006.”). It was also requested that the clinician “consider and comment on” the Veteran’s in-service December 1990 diagnosis of borderline fasting glucose syndrome. Id. As the January 2020 reviewing clinician did not note these pieces of evidence, let alone discuss the findings in formulating her medical opinion, the Board must remand to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Low back disability The December 2019 Board remand instructed the AOJ to obtain an examination to assess the severity of the Veteran’s service-connected low back disability. The remand instructions stated, “the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.” The January 2020 VA examiner did not test passive range of motion for the back. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). More importantly, the VA examiner noted the Veteran’s low back pain significantly limited his back’s functional ability during flare-ups and with repeated use over time but noted no change in the Veteran’s range of motion during such instances. The examiner stated the Veteran suffered significant functional loss during these instances and did not provide the Board with any additional information to assess what this functional loss actually entails. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). On remand, attempts must be made to comply with the directives of both Correia and Sharp to properly determine the severity of the Veteran’s low back disability. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. After the development of #1 above is complete, obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s DM. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran’s DM was incurred in or is otherwise related to his time in service, to include his treatment for elevated glucose levels? The reviewing clinician must consider and comment on the STRs documenting elevated glucose readings as well as post-service evidence of elevated glucose readings; this includes, but is not limited to a series of blood glucose readings taken in October 1999, October 2002, April 2003, July 2003, December 2003, March 2005, June 2005, October 2005, and March 2006. The reviewing clinician must also consider and comment on the in-service December 10, 1990 diagnosis of borderline fasting glucose syndrome (FGS). The reviewing clinician is directed to discuss the October 2010 NOD Veteran’s contentions that “my fasting blood glucose readings in the Navy were always high. This continued until my doctor determined that the readings were in fact high enough to be considered as DM” in 2007. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the development of #1 above is complete, schedule the Veteran for an examination to determine the severity of his service-connected lumbar spine condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If the VA examiner finds pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups and/or with repetitive use over time, but this decrease in functional ability results in no loss of range of motion, please detail how the Veteran’s functional ability is significantly limited during a flare-up and with repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to his lumbar spine condition and discuss the effect on any occupational functioning. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should consider that the Veteran is competent to report his lumbar spine symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. 4. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.