Citation Nr: 21010466 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-00 140 DATE: February 24, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to December 5, 2017, for a right ankle disability is denied. Entitlement to an evaluation of 20 percent, and no greater, beginning December 5, 2017, for a right ankle disability is granted. Entitlement to an initial evaluation of 10 percent prior to October 1, 2013, for a right knee disability manifesting in limitation of extension is denied. Entitlement to a separate evaluation of 10 percent, and no greater, beginning October 1, 2013, for a right knee disability manifesting in limitation of extension is granted. Entitlement to a separate initial evaluation of 20 percent, and no greater, prior to October 1, 2013, for a right knee disability manifesting in frequent episodes of locking, pain, and effusion is granted. Entitlement to an evaluation in excess of 20 percent beginning October 1, 2013, for a right knee disability manifesting in frequent episodes of locking, pain, and effusion is denied. Entitlement to a separate evaluation of 10 percent, and no greater, prior to February 7, 2021, for a right knee disability manifesting in instability is granted. Entitlement to an evaluation of 20 percent, and no greater, beginning February 7, 2021, for a right knee disability manifesting in instability is granted. REMANDED Entitlement to an initial evaluation in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 5, 2017, the Veteran’s right ankle disability manifested in moderate limited motion, and flare-ups of pain did not contribute to functional loss. 2. Beginning December 5, 2017, the evidence of record reflects the right ankle disability manifests in marked limited motion and functional loss. 3. Throughout the period on appeal, the Veteran’s right knee disability manifested in symptoms including locking, swelling, and at times severe pain. 4. Throughout the period on appeal, the Veteran’s right knee disability manifested in limitation of extension of the knee no greater than 10 degrees. 5. Throughout the period on appeal, the Veteran’s right knee disability manifested in symptoms of instability, though no clinical findings of instability are in the record. 6. The Veteran has a diagnosed condition involving the patellofemoral complex of the right knee, recurrent instability, and a prescription by a medical provider for a brace to treat the right knee. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to December 5, 2017, for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5003-5271. 2. The criteria for an evaluation of 20 percent, and no greater, beginning December 5, 2017, for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5003-5271. 3. The criteria for an initial evaluation in excess of 10 percent prior to October 1, 2013, for a right knee disability manifesting in limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5010-5261. 4. The criteria for an evaluation of 10 percent, and no greater, beginning October 1, 2013, for a right knee disability manifesting in limitation of extension have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5010-5261. 5. The criteria for an initial evaluation of 20 percent, and no greater, prior to October 1, 2013, for a right knee disability manifesting in frequent episodes of locking, pain, and effusion have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5258. 6. The criteria for an evaluation in excess of 20 percent beginning October 1, 2013, for a right knee disability manifesting in frequent episodes of locking, pain, and effusion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5258. 7. The criteria for a 10 percent evaluation, and no greater, prior to February 7, 2021, for a right knee disability manifesting in instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5257. 8. The criteria for a 20 percent evaluation, and no greater, beginning February 7, 2021, for a right knee patellofemoral complex disability manifesting in instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1984 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2018, when it was remanded for development. The case has been returned to the Board for further appellate review. In December 2017, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript of that hearing has been associated with the claims file. In October 2020, the Veteran was informed he is entitled to an additional hearing. In November 2020, the Veteran declined an additional hearing, so the Board will proceed with the case using the evidence of record. The issue of entitlement to a TDIU has been added to the appeal. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record reflects that the Veteran withdrew an appeal of entitlement to a TDIU in December 2017. However, at his May 2020 VA PTSD examination, the Veteran reported that he quit working two years prior (approximately May 2018) because he could no longer stand the pain. Thus, it appears that subsequent to the December 2017 withdrawal, the issue of a TDIU has been raised by the record and the Board finds it is part and parcel of the increased ratings included in this appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss 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, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 1. Entitlement to an initial evaluation in excess of 10 percent prior to August 20, 2020, and in excess of 20 percent thereafter, for a right ankle disability The Veteran’s right ankle disability is currently rated at 10 percent prior to August 20, 2020, and as 20 percent disabling thereafter, under Diagnostic Code (DC) 5003-5271. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for degenerative arthritis resulting in limitation of motion of his ankle. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion of the ankle is rated as either moderate, warranting a 10 percent rating, or marked, warranting a 20 percent rating. 38 C.F.R. § 4.71a, DC 5271. Higher ratings for the ankle are warranted only when the ankle is ankylosed. 38 C.F.R. § 4.71a, DC 5270. Ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between zero and 10 degrees, warrants a 30 percent rating. Ankylosis of the ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity warrants a 40 percent rating. The words “moderate” and “marked,” as used in the various diagnostic codes applicable to the appeal period prior to February 7, 2021, are not defined in the VA Schedule for Rating Disabilities. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. The Board notes the only change to DC 5003 is a change in the title to the code, indicating that the criteria apply to all types of degenerative arthritis other than post-traumatic. The only changes to any of the codes relevant to rating ankle disabilities were made to DC 5271. The changes clarify that “moderate” limited motion of the ankle is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and that “marked” limited motion of the ankle is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Here, given the impact of flare-ups on functional loss, the Board finds the Veteran’s right ankle disability increased in severity during the period on appeal. At a February 2011 VA examination, the Veteran reported symptoms of weakness, swelling, tenderness, pain, and dislocation in his right ankle, and denied stiffness, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, drainage, effusion, and subluxation. The Veteran also reported experiencing flare-ups of pain up to three times a week for approximately five hours at a time; he denied experiencing functional impairment or increased limitation of motion during flare-ups. Upon examination, no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding was noted. The range of motion was measured to be 20 degrees in dorsiflexion and 45 degrees in plantar flexion, a full range in both motions. There was no increased limitation of motion after three repetitions. The examiner identified a diagnosis of degenerative joint disease of the right ankle. In February 2013, at a VA rheumatology consultation, the Veteran’s right ankle was observed to be normal, with no swelling or tendon point insertional pain. The range of motion was noted to be good. In September 2017, the Veteran complained of worsening right ankle pain. Upon examination, no clubbing, cyanosis, or edema was noted, and the ankles were noted to be stable. There was no inflammation or tenderness observed. The Veteran was instructed to continue taking ibuprofen for pain, the physician ordered orthotic inserts for his shoes. At the December 2017 Board hearing, the Veteran testified that he experienced pain in his right ankle every day, which increased when standing. He also reported constant swelling and discoloration. The Veteran reported that he could not wear tight shoes because of the swelling in his right ankle. The Veteran also testified that he had limited range of motion in his right ankle. At an August 2020 VA examination, the Veteran reported experiencing pain in his right ankle four or five days a week for most of the day; he also reported moderate functional loss with repetitive use over time due to pain. He reported flare-ups when working in the yard for a long time, which last two or three days. The Veteran described the flare-ups as “like someone grinding to the bone; sticking something into it.” He also reported that he no longer runs or climbs a ladder due to his right ankle disability. The range of motion was measured to be 5 degrees in dorsiflexion and 20 degrees in plantar flexion; the examiner opined this limited range of motion contributes to functional loss in walking stairs, climbing, pushing, and pulling. Pain was noted on the examination, during range of motion testing, as well as with walking, heel/toe walking, and squatting. There was no increased limitation of motion after three repetitions. The examiner estimated the range of motion would be further reduced to zero degrees in dorsiflexion and 10 degrees in plantar flexion after repetitive use and during flare-ups. Ankylosis was not noted. After review of the evidence of record, the Board finds an increase is warranted for a portion of the period on appeal. First, the Board finds an increase is not warranted for the period from August 2, 2010, to December 4, 2017. The record during this period reflects evidence of a full range of motion; the February 2011 VA examination report noted a full range of motion in both dorsiflexion and plantar flexion, and the February 2013 treatment note indicated a “good” range of motion. While the measurements were not noted in the record, the Board finds a “good” range of motion is not indicative of marked limited motion of the ankle. Further, although the Veteran complained of worsening right ankle pain in September 2017, there was no swelling or inflammation noted, and the right ankle was noted to be stable. The Veteran’s ankle pain is already contemplated in the 10 percent rating currently assigned to this period of time, so no further increase is warranted by the evidence of record. However, beginning December 5, 2017, the date of the Board hearing, the Board finds the record indicates a marked limitation of motion. The Veteran’s testified that his ankle was limited in range of motion, and that he experienced constant swelling that led to discoloration. He also reported difficulty standing on the ankle. Similarly, at the August 2020 VA examination, the Veteran reported functional limitation including not being able to run or climb a ladder, as well as pain most days, flare-ups, and further functional loss with repetitive use over time. The range of motion was measured to be 5 degrees in dorsiflexion and 20 degrees in plantar flexion. The Board finds that these reports and clinical findings amount to marked limited motion of the ankle. Although these findings were not documented in the record until the 2020 VA examination, the Board will resolve the benefit of reasonable doubt in favor of the Veteran and assign the increased rating as of the date of the December 5, 2017 Board hearing when the Veteran testified as to experiencing limitation to range of motion. For the period beginning December 5, 2017, the Veteran is now assigned a 20 percent rating for his right ankle disability, which is the highest rating available under Diagnostic Code 5271. A higher schedular rating is not warranted under another diagnostic code, as there is no evidence of ankylosis in the record. The VA examinations in February 2011 and August 2020 both found that the Veteran’s right ankle had a range of motion, however limited, and there are no treatment records to support a finding of ankylosis. Accordingly, Diagnostic Code 5270 is not applicable in the Veteran’s case, and a higher evaluation for this period is not available. The Board has considered other diagnostic codes applicable to ankle disabilities, but finds that none are applicable in this case. As noted, there is no evidence in the record of ankylosis of the ankle, subastragalar joint, or tarsal joint, nor is there evidence of malunion of the os calcis or astragalus. Therefore, a higher evaluation is not available to the Veteran for either of these two periods. Finally, the Board notes the change in the rating criteria effective February 7, 2021, does not render a more beneficial outcome, as the Veteran is assigned the maximum rating under Diagnostic Code 5271, for marked limited motion of the ankle, demonstrated by 5 degrees of dorsiflexion at the August 2020 examination. In conclusion, the Board finds a rating in excess of 10 percent is not warranted for the Veteran’s right ankle disability prior to December 5, 2017, and a 20 percent evaluation, and no higher, is appropriate thereafter. 2. Entitlement to an initial evaluation in excess of 10 percent prior to October 1, 2013, and in excess of 20 percent thereafter, for a right knee disability The Veteran is in receipt of a single 10 percent evaluation for his right knee disability from July 22, 2010, to October 1, 2013, for traumatic arthritis limiting extension, under DC 5010-5261. Beginning October 1, 2013, the Veteran is assigned a single 20 percent evaluation for dislocation of the semilunar cartilage limiting extension, under DC 5261-5258. Diagnostic Code 5010 provides that the traumatic arthritis will be rated based on limitation of motion of the affected part. 38 C.F.R. § 4.71a, DC 5010 (2020). Under DC 5261, a noncompensable rating is warranted when extension of the knee is limited to 5 degrees, and a 10 percent disability rating is warranted when extension of the knee is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees, and a 30 percent rating is warranted when extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees, and a 50 percent disability rating is warranted when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5258, a 20 percent evaluation is assigned for dislocation of the semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. There are some changes to the musculoskeletal rating criteria relevant to the Veteran’s right knee disability. Effective February 7, 2021, DC 5010 may be rated as limitation of motion, as before, or as dislocation or other specified instability of the affected joint. Changes were not made to the rating criteria for DCs 5261 or 5258. Here, the record reflects right knee symptoms affecting functional ability, including locking, stiffness, swelling, and pain. The Board notes the Veteran’s VA treatment records contain consistent complaints of pain throughout the appeal period, in addition to the specific treatment noted below. In August 2010, the Veteran sought treatment at VA for increased knee pain after falling due to the right knee becoming weak. In September 2010, the Veteran’s private treatment records indicate he underwent arthroscopic surgery on his right knee to treat patellofemoral chondromalacia manifesting in persistent knee pain and locking, popping, and grinding sensation. The surgery was successful in repairing trochlear cartilage of the right knee, and the Veteran later reported that he did not experience swelling in the right knee anymore after the surgery. A January 2011 VA treatment note reports the Veteran’s right knee was stiff on flexion. At a February 2011 VA examination, the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, locking, and pain in the right knee, as well as flare-ups of pain as often as once per day, lasting approximately six hours. The Veteran reported the flare-ups did not result in additional functional impairment or limitation of motion of the knee. The Veteran reported difficulty with prolonged standing and walking. Upon examination, tenderness was noted but no edema, instability, subluxation, abnormal movement, effusion, weakness, redness, heat, deformity, guarding, malalignment, or drainage. The range of motion was measured to be 120 degrees in flexion and zero degrees in extension (a full range of motion in extension), with no change after three repetitions. In February 2013, the Veteran sought treatment for chronic knee pain and an eye disorder with the VA rheumatology department. Upon examination of the knees, both were noted to have small to moderate effusions, with the right knee having a slightly larger effusion. The physician did not note the range of motion in the knees. In March 2013, the Veteran attended an occupational therapy consultation for his chronic knee pain, and reported some difficulty with rising from a seated position due to his right knee. He was issued a new, wrap-around, hinged knee brace to support the knee. At an October 2013 VA examination, the Veteran reported worsening right knee pain and chronic swelling. He denied flare-ups, as the knee pain was constant. The range of motion was measured to be 95 degrees in flexion and 10 degrees in extension, with pain in both ranges of motion. The Veteran was unable to perform three repetitions, and the examiner noted he sat with his leg extended, as he was uncomfortable bending it beyond 90 degrees. The examiner also noted the Veteran often held his leg with his hands in order to manipulate his knee. The examiner noted the factors contributing to functional impairment of the right knee included less movement than normal, weakened movement, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The muscle strength testing revealed reduced strength in the right knee, as the Veteran was only capable of active movement with gravity eliminated. The examiner noted a history of recurrent patellar subluxation or dislocation, but was unable to perform stability tests, and did not comment on or describe the history of subluxation or dislocation. The examiner also noted the Veteran used a cane to assist with walking. In April 2014, the Veteran again sought treatment with rheumatology and reported severe, daily, bilateral knee pain. He also reported a decrease in right knee swelling since his September 2010 arthroscopic surgery, as the knee was only swelling with prolonged walking. The Veteran reported his knees were stiff for about 45 minutes in the morning, and he needs to lift them with his hands; he further reported stabbing pain upon first standing in the morning, as well as with prolonged sitting or standing. At the December 2017 Board hearing, the Veteran testified that his right knee gives out frequently, which has caused him to avoid walking a lot. He also reported that he takes medication for inflammation and pain in the right knee, and that he has swelling and pain three or four days a week. The Veteran testified that he wears his right knee brace almost all the time, except when he sleeps or sits for long periods in his home. The Veteran also testified that his doctors were considering a total knee replacement for his right knee; he reported that he would receive such a surgery from a private orthopedic surgeon, but the record does not indicate he ever sought a consultation with any private orthopedist or underwent any right knee surgery after the documented September 2010 arthroscopy. At a December 2018 VA knees examination, the Veteran reported that his right knee locks up if he does not move it for a while. He also reported episodes of numbness, tingling, and swelling approximately twice a week, lasting up to two days. The Veteran also described having flare-ups of throbbing pain, swelling, popping, and crepitus approximately twice a month, lasting three to four days; he described the right knee as getting “really tight” during flare-ups. The Veteran reported difficulty with bending and squatting, as well as sitting long periods of time. The range of motion was measured to be 130 degrees in flexion and zero degrees in extension, with pain in both ranges of motion. There was no change in the range of motion after three repetitions, and muscle strength testing was all normal. The examiner noted there was no history of recurrent subluxation and lateral instability, and there was no instability noted on the examination. The Veteran was noted to use a right knee brace and cane regularly for assistance with walking. Ankylosis of the right knee was not noted at any point during the appeal period. After review of the evidence of record, the Board finds an increase is warranted. First, regarding the Veteran’s September 2010 right knee surgery, the Board notes there is no evidence indicating the surgery required at least one month of convalescence, nor has the Veteran asserted that it did. Therefore, a temporary total disability rating is not in order under 38 C.F.R. § 4.30. Prior to October 1, 2013, the date of the October 2013 VA examination, the Veteran’s right knee disability was rated as 10 percent disabling based on limitation of extension; however, the record during this period reflects a full range of motion in extension. Therefore, a rating in excess of 10 percent is not warranted under DC 5010-5261. The Board notes, though, that during this period, there are consistent complaints of episodes of locking, swelling, and pain. The Veteran’s symptoms during this period were severe enough to warrant surgery for treatment of the trochlear cartilage, and continued to some extent after the surgery. Therefore, the Board finds that for the period prior to October 1, 2013, a separate 20 percent evaluation rated under DC 5258 is warranted for the symptoms related to the cartilage of the right knee. Next, regarding the period beginning October 1, 2013, the Veteran is currently in receipt of one 20 percent evaluation under a hyphenated diagnostic code compensating for both limitation of extension and the symptoms related to the cartilage. The Board notes the Veteran’s symptoms appear to wax and wane in terms of severity of the constant, underlying state of the right knee disability. While the symptoms were more severe on a regular basis at the beginning of this period, the Veteran’s complaints of flare-ups and functional impairment such as stiffness indicate a consistent level of disability throughout this period. At the October 2013 VA examination, the right knee range of motion was limited to 10 degrees in extension, the strength of the right knee was noted to be reduced, and the Veteran needed support from his arms to manipulate his knee. In April 2014, he reported stiffness and stabbing pain in the morning. The Veteran also testified that he experienced swelling and pain approximately three or four days a week. Notably, the Veteran reported severe flare-ups at the December 2018 VA examination, which lasted for days and manifested in throbbing pain, swelling, and popping of the knee. Although the December 2018 VA examiner declined to opine whether there would be a change in the Veteran’s range of motion during a flare-up, the Veteran’s descriptions of flare-ups indicate disability greater than the range of motion noted at the examination. The highest evaluation available under DC 5258 is 20 percent, which is equivalent to the evaluation the Veteran is currently assigned. However, considering the evidence regarding flare-ups, the limitation of extension noted at the October 2013 VA examination, and the provisions of section 4.40 and 4.45, the Board finds that an additional evaluation of 10 percent for limitation of extension is appropriate. A higher evaluation for this period is not warranted, as there is no evidence of extension limited to 15 degrees, nor does the reported functional impairment approximate this degree of limitation. The Board also finds a separate evaluation for instability is warranted throughout the period on appeal under DC 5257. The Veteran consistently complained of and sought treatment for knee weakness or giving way, and regularly wore a brace to support the knee. Therefore, the Board finds a 10 percent evaluation for instability is merited prior to February 7, 2021; a higher evaluation is not assigned for this period as there are no clinical findings of recurrent subluxation or lateral instability upon specific testing at the February 2011 and December 2018 VA examinations. There are significant changes to DC 5257 effective February 7, 2021. The new criteria specify that the code governs recurrent subluxation or instability and patellar instability. The criteria concerning recurrent subluxation or instability are not relevant here, as there is no evidence of right knee sprain or ligament tear. The Veteran does have a diagnosed condition involving the patellofemoral complex (the quadriceps tendon, the patella, or the patellar tendon). For patellar instability, a 10 percent evaluation is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability, without a prescription for an assistive device or bracing for ambulation. A 20 percent rating is assigned for the same with a prescription for either an assistive device or brace, and a 30 percent rating is assigned for the same with a prescription for both an assistive device and brace. The record reflects the Veteran underwent surgery for patellofemoral chondromalacia, and has a prescribed brace for his right knee disability. As noted above, he experiences knee weakness and giving way, and he testified at the Board hearing that his right knee gives out frequently. Therefore, the Board finds the Veteran has a diagnosed condition involving the patellofemoral complex that causes recurrent instability, with a prescription for a knee brace, and finds that a 20 percent evaluation under DC 5257 is warranted as of the effective date of the changes to the rating criteria, February 7, 2021. Finally, the Board has considered other DCs pertaining to the knee, but does not find that any are applicable in this case during any portion of the period on appeal. There is no evidence of ankylosis or malunion in the record. Flexion of the knee was never noted to be less than 95 degrees, and even with consideration of the evidence regarding flare-ups, the Veteran’s right knee symptoms do not approximate disability limiting the right knee to 15 degrees in flexion. REASONS FOR REMAND Entitlement to an initial evaluation in excess of 70 percent for PTSD is remanded. At the December 2017 Board hearing, the Veteran reported that he sought treatment for PTSD from private psychologists on at least three occasions, and was prescribed medication, which he later obtained from VA. As the record does not contain extensive documentation of PTSD treatment, these records are particularly pertinent to assessing the severity of the disorder throughout the appeal period. None of the private records are associated with the claims file, and a remand is necessary to obtain them. Entitlement to a total disability rating based on individual unemployability (TDIU). As entitlement to a TDIU is based on consideration of the Veteran’s combined disability rating, and as occupational functioning is both a component of a PTSD rating and a TDIU rating, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the PTSD issue being remanded. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for PTSD or other mental health treatment that is not already of record, including any records from his private psychologist pertaining to medications used to treat PTSD symptoms. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Develop and adjudicate the issue of entitlement to a total disability rating based on individual unemployability (TDIU). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.