Citation Nr: 21010665 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-36 757 DATE: February 25, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee instability associated with degenerative joint disease (DJD) prior to January 4, 2017 and in excess of 20 percent from January 4, 2017 to July 11, 2020 is denied. Entitlement to a 30 percent disability rating for right knee instability associated with DJD from July 12, 2020 is granted. Entitlement to a disability rating in excess of 10 percent for right knee DJD status post (s/p) anterior cruciate ligament (ACL) repair based on limitation of flexion is denied. Entitlement to an initial disability rating in excess of 30 percent for right knee limitation of extension is denied. FINDINGS OF FACT 1. Prior to January 4, 2017, the Veteran’s right knee instability was manifested by no more than slight instability. 2. From January 4, 2017 to July 11, 2020, the Veteran’s right knee instability was manifested by no more than moderate instability. 3. From July 12, 2020, the Veteran’s right knee instability is manifested by severe instability. 4. The Veteran’s right knee DJD s/p ACL repair manifested in, at worst, flexion to 35 degrees and extension to 20 degrees. CONCLUSIONS OF LAW 1. Prior to January 4, 2017, criteria for a disability rating in excess of 10 percent for right knee instability associated with DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. From January 4, 2017 to July 11, 2020, criteria for a disability rating in excess of 20 percent for right knee instability associated with DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. From July 12, 2020, the criteria for a 30 percent disability rating for right knee instability associated with DJD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating in excess of 10 percent for right knee DJD s/p ACL repair based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 5. The criteria for a disability rating in excess of 30 percent for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by a Regional Offices (RO) for the Department of Veterans Affairs (VA). The Board most recently remanded the case in April 2020 for further development. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In reviewing the Veteran’s appeals for increased ratings, the Board has not overlooked the holding of the United States Court of Veterans Appeals (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims he is unable to work due to a service-connected disability). However, the evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities on appeal. Moreover, while the Veteran has indicated that his service-connected disabilities affect his employment, he has not asserted that he is unemployable as a result of them. The record reflects that the Veteran has been consistently employed full-time as a school counselor throughout the period on appeal. As such, the Board finds that Rice is not applicable to the current appeal, and the issue of entitlement to TDIU should not be construed as being on appeal. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). 1. Entitlement to a disability rating in excess of 10 percent for right knee instability associated with DJD prior to January 4, 2017 and in excess of 20 percent from January 4, 2017 to July 11, 2020 2. Entitlement to a 30 percent disability rating for right knee instability associated with DJD from July 12, 2020 3. Entitlement to a disability rating in excess of 10 percent for right knee DJD s/p ACL repair based on limitation of flexion 4. Entitlement to an initial disability rating in excess of 30 percent for right knee limitation of extension The Veteran is seeking increased disability ratings for his service-connected right knee disabilities. He asserts his right knee disabilities are more severe than reflected by his assigned disability ratings. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s right knee instability associated with DJD is rated under Diagnostic Code 5003-5257; his service-connected right knee DJD s/p ACL repair based on limitation of flexion is rated under Diagnostic Code 5003-5260; and his service-connected right knee limitation of extension is rated under Diagnostic Code 5003-5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the Veteran is compensated for instability of the knee (Diagnostic Code 5257), limitation of flexion (Diagnostic Code 5260), and limitation of extension (Diagnostic Code 5261) due to degenerative arthritis (Diagnostic Code 5003). The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Codes 5257 and 5262, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent disability rating is warranted with x- ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As the Veteran has confirmed limitation of motion for which he is being compensated for under the joint-specific code of 5243 and is already receiving the maximum rating of 20 percent offered under Diagnostic Code 5003, compensation under the criteria of this code will not be further discussed. Disabilities of the knees are evaluated pursuant to the criteria within 38 C.F.R. § 4.71a, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Diagnostic Code 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under the former rating criteria for Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability of a knee, a 10 percent rating is assigned for slight impairment; a 20 percent rating for moderate impairment; and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. 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 The revised criteria for Diagnostic Code 5257, effective February 7, 2021, evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. Regarding recurrent subluxation or instability, a 10 percent rating is assigned for 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. A 20 percent rating is assigned for either (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 a brace and/or assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for 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. Regarding patellar instability, under the revised criteria for Diagnostic Code 5257, a 10 percent rating is assigned 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. A 20 percent rating is assigned 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. A 30 percent disability rating is assigned 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. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Diagnostic Code 5258 provides for a 20 percent rating when semilunar cartilage is dislocated with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for a 10 percent rating when semilunar cartilage has been removed but remains symptomatic. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, which evaluates limitation of flexion, a noncompensable rating is assigned when flexion 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. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, which evaluates limitation of extension, a noncompensable rating is assigned when extension 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 warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Under the former rating criteria for Diagnostic Code 5262, which evaluates impairment of the tibia and fibula, a 10 percent rating is assigned for slight knee or ankle disability, a 20 percent rating for moderate knee or ankle disability, a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating for nonunion with loose motion, requiring a brace. 38 C.F.R. § 4.71a The revised criteria for Diagnostic Code 5262, effective February 7, 2021, evaluates impairment of the tibia and fibula. A noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing, is rated at 10 percent. 38 C.F.R. § 4.71a. When assigning ratings, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Amputation not improvable by prosthesis controlled by natural knee action warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board notes that a review of the record reveals that, while the most recent VA examinations in February 2017 and July 2020 satisfy the requirements of Correia and Sharp, the prior VA examinations of record do not. However, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to February 2017, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. Turning to the evidence of record, in a February 2012 statement, the Veteran reported that the condition of his knees had worsened, and he was having trouble walking short distances. His knees swelled regularly, and he could not drive over 30 minutes without one of his knees locking up. The Veteran noted his knees would pop and grind when walking, standing, or sitting for 10 minutes or longer. He had lost feeling in the top portion of his knee. The Veteran indicated he had to miss work five times over the last two months due to knee pain. In an October 2012 statement, Ms. M. S., the Veteran’s supervisor, stated that the Veteran’s physical health was deteriorating and affecting his job performance. She noted his main issue was with his knees. Ms. M. S. noted that although the Veteran’s normal workstation was sitting, he was frequently required to walk up steps. The Veteran was afforded a VA examination for his knees in November 2012. The Veteran reported his knees had worsened in the last two years. They were stiff with increased swelling. The Veteran noted he was not being treated by a physician for his knee disabilities and instead wore an over the counter brace on the left knee as needed. The Veteran endorsed flare-ups of the knees, noting that prolonged sitting caused pain, and after rising he had to stand for some time before he could walk. The VA examiner confirmed diagnoses of ACL repair of the right knee and DJD of the bilateral knees. On examination, range of motion testing revealed right knee flexion to 100 degrees with objective evidence of painful motion beginning at 90 degrees, right knee extension without limitation, left knee flexion to 95 degrees with objective evidence of painful motion beginning at 20 degrees, and left knee extension without limitation. Range of motion testing after repetitive use revealed right knee flexion to 100 degrees, right knee extension without limitation, left knee flexion to 90 degrees, and left knee extension without limitation. The examiner noted that the Veteran had additional limitation in range of motion and functional loss/impairment of the knee and lower leg following repetitive use testing. Contributing factors included less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and weightbearing. Pain was noted on palpation. Muscle strength testing was normal. There was no anterior instability or posterior instability, but medial-lateral instability was demonstrated on the right from 0 to 5 millimeters. Patellar subluxation/dislocation was not indicated and there was no history or current condition of shin splints. The Veteran had meniscus conditions including a bilateral meniscal tear and bilateral frequent episodes of joint pain. No joint locking or joint effusion was noted for the right knee. No other pertinent physical findings, complications, conditions, signs and/or symptoms were noted. The examiner indicated that the Veteran’s knee conditions impacted his ability to work, noting that the Veteran worked as a teacher for 16 years and a school guidance counselor for seven years. He had to climb stairs several times a day because the school elevator often did not work. The Veteran noted he had previously driven a school bus too, but quit two years ago because he was afraid he could not use the clutch adequately. In an October 2014 statement, the Veteran reported that walking up and down steps had become nearly impossible and driving over 30 minutes brought on severe pain. This, in addition to instability and locking, had forced him to stop driving a bus as part of his job. The Veteran stated extension had decreased dramatically “with extreme pain upon ankyloses in flexion between 20 and 60 degrees.” The Veteran asserted that pain had not been considered when his disability ratings were assigned. The Veteran was afforded a VA examination for his knees in October 2014. The Veteran reported daily moderate to severe knee pain described as aching, throbbing, burning, throbbing, burning, dull, grinding, sharp, and sore. He reported flare-ups of the knee with sitting greater than 30 minutes, driving greater than 15 minutes, prolonged standing greater than one to two minutes, walking greater than 80 feet, and lifting greater than five pounds. The Veteran avoided working overhead, avoided stairs and inclines/declines, was unable to climb, use foot controls, push/pull, use ladders, and squat/kneel. He had to change positions every five to 10 minutes. The VA examiner confirmed diagnoses of right knee s/p ACL reconstruction with medial-lateral instability, DJD, and internal derangement. On examination, range of motion testing revealed right knee flexion to 45 degrees with objective evidence of painful motion beginning at 40 degrees, right knee extension to 20 degrees with objective evidence of painful motion beginning at 20 degrees, left knee flexion to 90 degrees with objective evidence of painful motion beginning at 80 degrees, and left knee extension without limitation. Range of motion testing after repetitive use revealed right knee flexion to 45 degrees, right knee extension to 20 degrees, left knee flexion to 90 degrees, and left knee extension without limitation. The examiner indicated that the Veteran did not have additional limitation of range of motion of the knee or lower leg following repetitive-use testing, but did have functional loss/impairment, noting less movement than normal, weakened movement, excess fatiguability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, and interference with sitting. The Veteran had tenderness or pain to palpation. Muscle strength testing revealed active movement against some resistance. There was no anterior instability or posterior instability, but medial-lateral instability was demonstrated on the right from 0 to 5 millimeters. Patellar subluxation/dislocation was not indicated and there was no history or current condition of shin splints. The Veteran had meniscus conditions including a bilateral meniscal tear, bilateral frequent episodes of joint pain and joint effusion. No other pertinent physical findings, complications, conditions, signs and/or symptoms were noted. The Veteran did not use an assistive device as a normal mode of locomotion. The examiner indicated that the Veteran’s knee impacted his ability to work, noting the restrictions during flare-ups. The examiner noted that the Veteran’s right knee disabilities resulted in a progressive increase in pain, progressive loss of function, and a progressive loss of both active and passive range of motion. In a December 2016 treatment record, the Veteran reported pain in both knees, with his right knee feeling more stable than his left knee. The clinician noted no crepitus with active or passive range of motion and no warmth. Patellar compression and apprehension tests were negative. Negative anterior/posterior drawer and negative MCL/LCL laxity were noted. Pain was localized to the medial and lateral joint lines bilaterally and radiated upward. McMurray test was negative on the right with no real pain other than a small snap laterally. Right patella inferior medially was noted with a bony protuberance. Bilateral knee pain due to significant arthritis was suspected. December 2016 imaging studies of the right knee showed stable features of right knee ACL reconstruction and mild arthritis. Patellar and quadriceps enthesophytes with evidence of old injury to the right patellar tendon were seen. Partially visible metallic density at the level of the lower thigh was noted. Examination of the right knee revealed range of motion from 0 to 135 degrees with terminal pain. Alignment was normal and tenderness was noted at the medial and lateral joint lines. Lachman’s test and anterior drawer were negative, with mediolateral indicated as good. There was minimal swelling and no effusion or crepitus. The clinician noted she tried to induce Murray’s several times and seemed to pop laterally. The Veteran was diagnosed with old ACL reconstruction right knee with probable meniscus tear. The Veteran was afforded a VA examination for his knees in February 2017. The Veteran reported knee locking, instability, and throbbing pain. He noted decreased range of motion with extension and that his knee would slip out of its joint in extension. He treated his knee disability with 800 mg of Motrin every four hours. The Veteran reported flare-ups, noting his knee would swell with radiating shooting pain or lock up, making it difficult to walk. He endorsed functional loss/impairment and noted he could not go up or down the stairs because he often fell due to instability. The VA examiner confirmed diagnoses of right knee meniscal tear, instability, and degenerative arthritis. On examination, range of motion testing revealed right knee flexion to 70 degrees, right knee extension to 0 degrees, left knee flexion to 70 degrees, and left knee extension to 0 degrees. Right knee range of motion contributed to functional loss with standing, walking, and going up and down stairs. Pain was noted on examination and caused functional loss. Pain was noted on the right side of knee cap. Evidence of pain with weightbearing and non-weightbearing and on passive range of motion was noted. Passive range of motion remained the same as on active range of motion testing. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing of both knees with no additional loss of function or range of motion after three repetitions. The examiner indicated that pain significantly limited functional ability with repeated use over a period of time and during flare-ups, with right knee flexion to 35 degrees, right knee extension to 0 degrees, left knee flexion to 35 degrees, and left knee extension to 0 degrees. Additional factors contributing to disability of the right knee included swelling, instability of station, interference with sitting, and interference with standing. Muscle strength testing revealed active movement against some resistance with muscle atrophy of the right calf. No ankylosis was present. Joint stability tests revealed moderate subluxation and moderate lateral instability of the right knee. There was no history of recurrent joint effusion. Right knee anterior instability was from 0 to 5 millimeters, right knee posterior instability was from 0 to 5 millimeters, right knee medical instability was normal, and right knee lateral instability was from 5 to 10 millimeters. The Veteran was noted to have a meniscal tear, frequent episodes of locking, and frequent episodes of joint pain. He did not require any assistive device for ambulation. The examiner indicated that the Veteran’s right knee affected his ability to perform occupational tasks, noting the Veteran could not walk, stand, or sit for too long. The examiner noted the Veteran could work a job that allowed for position changes frequently. A February 2017 treatment noted that the Veteran’s ACL was s/p repair with intact graft. No hardware complications were noted. The Veteran reported his right knee felt a little loose at times. The clinician noted that there was nothing that could be done arthroscopically to help with the right knee, but that a stabilizing ACL brace could help with stability and pain. A consult to the prosthetics department was noted. A March 2017 treatment record noted no effusion or malalignment of the knees. A March 2018 physical therapy note indicated that a Breg brace was determined appropriate for the Veteran’s right knee. In a September 2019 statement, the Veteran asserted he had severe instability and severe recurrent subluxation and wore a prescribed knee brace issued by his doctor. Even wearing the brace, the Veteran indicated his instability and subluxation was severe and caused him to fall several times a week and he was unable to perform simple daily tasks. He stated that right knee flexion was 30 degrees or less and extension was between 30 to 45 degrees, which he asserted was noted when he was fitted for his knee brace. A January 2020 treatment record reflected range of motion of the Veteran’s right knee with flexion to 100 degrees and extension to 0 degrees. The clinician noted the knees were stable with no effusions. The Veteran was afforded a VA examination for his knees in July 2020. The Veteran reported right knee pain, swelling, popping, grinding, and difficulty with range of motion. He currently treated his disability with braces, a walker, a cane, and Motrin. The Veteran reported his knee disability affected his ability to perform occupational functioning and ordinary activities, noting he needed help getting dressed and showering; he could not use stairs or walk and stand for more than five to 10 minutes; sitting or standing over 30 minutes caused stiffness, and he had multiple falls. The Veteran endorsed severe flare-ups of the knee that occurred daily and lasted until the next day. Flare-ups were precipitated by movement, standing, walking, and weather and could not be alleviated. The Veteran reported functional loss/impairment, stating that any movement, walking, standing, or sitting caused great pain and dislocation on occasion. On examination, range of motion testing revealed right knee flexion to 100 degrees, right knee extension to 10 degrees, left knee flexion to 90 degrees, and left knee extension to 0 degrees. Range of motion contributed to functional loss of the right knee, as the Veteran had difficulty walking, climbing stairs, and pain with range of motion. Pain noted on examination caused functional loss with flexion and extension. There was evidence of pain with weightbearing. There was objective evidence of moderate localized tenderness or pain on palpation located at the medial and lateral joint line. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing of both knees with no additional loss of function or range of motion after three repetitions. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time with right knee flexion to 90 degrees, right knee extension to 0 degrees, left knee flexion to 80 degrees, and left knee extension to 0 degrees. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups with right knee flexion to 70 degrees, right knee extension to 0 degrees, left knee flexion to 60 degrees, and left knee extension to 0 degrees. Additional factors contributing to disability of the right knee included swelling, instability of station, interference with sitting, and interference with standing. Muscle strength testing revealed active movement against some resistance with no muscle atrophy. No ankylosis was present. Joint stability tests revealed slight subluxation and slight lateral instability of the right knee. There was no history of recurrent joint effusion. Right knee anterior instability was from 0 to 5 millimeters, right knee posterior instability was from 0 to 5 millimeters, right knee medial instability was from 0 to 5 millimeters, and right knee lateral instability was from 0 to 5 millimeters. The Veteran was noted to use a brace and walker regularly, and a cane constantly to aid in locomotion. The examiner indicated that the Veteran’s right knee affected his ability to perform occupational tasks, noting that the Veteran reported difficulty with pain and range of motion when walking and standing. He could not climb stairs or sit for extended periods of time without stiffness. The Veteran stated he had pain with walking, standing, sitting, and even at rest. He noted he always had some type of pain in both knees. The Veteran reported he could not walk more than a few minutes without having increasing pain in both knees when doing any of the aforementioned tasks. With regard to the Veteran’s right knee instability associated with DJD, based on the evidence of record, the Board finds that a disability rating in excess of 10 percent prior to January 4, 2017 is not warranted, as the criteria for a more severe rating has not been met. Both the November 2012 and October 2014 VA examinations noted right knee medial-lateral instability from 0 to 5 millimeters with normal anterior and posterior stability. The examinations reflected that the Veteran did not use a brace on the right knee or any assistive devices for locomotion. Therefore, for the period prior to January 4, 2017, the Board finds that the Veteran’s right knee instability is best contemplated by a 10 percent disability rating for slight impairment. From January 4, 2017 to July 11, 2020, the evidence of record reflects moderate instability of the right knee. In this regard, the February 2017 VA examination noted right knee anterior instability from 0 to 5 millimeters, right knee posterior instability from 0 to 5 millimeters, normal right knee medial stability, and right knee lateral instability from 5 to 10 millimeters. The examiner indicated that the Veteran had a history of moderate recurrent subluxation and moderate lateral instability of the right knee. The Veteran did not require any assistive device for ambulation. Later that month, a stabilizing ACL brace was prescribed. The July 2020 VA examination noted slight subluxation and slight lateral instability of the right knee, with right knee anterior instability from 0 to 5 millimeters, right knee posterior instability from 0 to 5 millimeters, right knee medial instability from 0 to 5 millimeters, and right knee lateral instability from 0 to 5 millimeters. The Veteran was noted to use a brace and walker regularly, and a cane constantly to aid in locomotion. The Board finds that prior to the July 2020 VA examination, the Veteran’s right knee instability is best contemplated by a 20 percent disability rating for moderate impairment. From July 12, 2020, the Veteran demonstrated severe instability of the right knee requiring the use of a brace and assistive devices for locomotion. As such, the Board finds that a 30 percent disability rating from July 12, 2020 is warranted. The Board notes that both the former and revised criteria under Diagnostic Code 5257 allows for a maximum evaluation of 30 percent. Therefore, application of the amended rating criteria under Diagnostic Code 5257 from February 7, 2021 would not result in a higher disability rating. With regard to the Veteran’s right knee DJD s/p ACL repair based on limitation of flexion, based on the evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted, as the criteria for a more severe rating has not been met. The evidence does not show flexion of the right knee limited to 30 degrees to warrant a 20 percent disability rating under Diagnostic Codes 5260. Specifically, the November 2012 VA examination noted right knee flexion to 100 degrees, with objective evidence of pain at 90 degree. After repeated use with three repetitions, flexion of right knee remained the same. The October 2014 VA examination noted right knee flexion to 45 degrees, with objective evidence of pain at 40 degrees. After repeated use with three repetitions, flexion of the right knee remained the same. The February 2017 VA examination noted right knee flexion to 70 degrees, with no additional loss of range of motion following repetitive use with three repetitions. Flexion of the right knee decreased to 35 degrees following repeated use over a period of time and during flare-ups. A January 2020 treatment record noted right knee flexion to 100 degrees. The July 2020 VA examination noted right knee flexion to 100 degrees, with no additional loss of range of motion following repetitive use with three repetitions. Flexion of the right knee decreased to 90 degrees following repeated use over a period of time and decreased to 70 degrees during flare-ups. Treatment records do not provide any evidence contrary to that obtained at the VA examinations. Accordingly, the Board finds that the Veteran’s right knee DJD s/p ACL repair based on limitation of flexion is best contemplated by a 10 percent disability rating, as the evidence of record has not shown right knee flexion limited to 30 degrees. With regard to the Veteran’s right knee limitation of extension, based on the evidence of record, the Board finds that a disability rating in excess of 30 percent is not warranted, as the criteria for a more severe rating has not been met. Specifically, the October 2014 VA examination noted right knee extension to 20 degrees, with objective evidence of pain at 20 degrees. After repeated use with three repetitions, extension of the right knee remained the same. The February 2017 VA examination noted right knee extension to 0 degrees, with no additional loss of extension following repetitive use with three repetitions, repeated use over a period of time, or during flare-ups. A January 2020 treatment record noted right knee extension to 0 degrees. The July 2020 VA examination noted right knee extension to 10 degrees, with no additional loss of extension following repetitive use with three repetitions, repeated use over a period of time, or during flare-ups. Treatment records do not provide any evidence contrary to that obtained at the VA examinations. Accordingly, the Board finds that the Veteran’s right knee limitation of extension is best contemplated by a 30 percent disability rating, as the evidence of record has not shown right knee extension limited to 30 degrees. The Board acknowledges the Veteran’s October 2014 statement asserting that his right knee flexion was between 20 to 60 degrees, and his September 2019 statement asserting that his right knee flexion was 30 degrees or less and his right knee extension was 30 to 45 degrees. The Board has also considered the Veteran’s statements that describe his pain and limitations but finds that these limitations do not amount to right knee flexion limited to 30 degrees or right knee extension limited to 30 degrees. Further, the Board finds that the objective medical findings by skilled professionals are more persuasive, as their findings reflect that range-of-motion testing incorporated the Veteran’s reports of pain. Both the February 2017 and July 2020 VA examiners considered the functional limitations of pain, weakness, fatigue, and incoordination when assigning measurements of right knee range of motion in compliance with DeLuca, 8 Vet. App. at 202. As indicated above, the VA examinations of record do not support higher disability ratings for the Veteran’s service-connected right knee disabilities. The Board notes that while there is evidence of dislocated semilunar cartilage and that the Veteran has reported pain and locking of the knee, the requirements of Diagnostic Code 5258 are written in the conjunctive and symptoms of pain, locking, and effusion must be present. Here, the November 2012 VA examination noted a right knee meniscal tear with frequent episodes of pain, but without frequent episodes of joint locking or joint effusion; the October 2014 VA examination noted a right knee meniscal tear with frequent episodes of joint pain and joint effusion, but without frequent episodes of joint locking; the February 2017 VA examination indicated the presence of a right knee meniscal tear with frequent episodes of joint pain and joint locking, but without frequent episodes of joint effusion; and the July 2020 VA examination noted a right knee meniscal tear without frequent episodes of joint pain, joint locking, or joint effusion. While the October 2014 examiner noted the presence of frequent episodes of joint effusion, the weight of the evidence supports the absence of joint effusion of the right knee. In addition to the findings in the November 2012, February 2017, and July 2020 VA examinations noting the absence of right knee joint effusion, treatment records from December 2016, March 2017, and January 2020 likewise indicate the absence of right knee joint effusion. Thus, even with evidence of joint pain and joint locking, there is not the additional evidence needed to grant a separate rating under Diagnostic Code 5258. Finally, as there is no evidence of ankylosis, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, separate or higher ratings under any other diagnostic code applicable to the knees is not warranted. (Continued on the next page)   In sum, the Board finds that a 10 percent disability rating for the Veteran’s right knee instability associated with DJD prior to January 4, 2017 and in excess of 20 percent from January 4, 2017 to July 11, 2020 is not warranted. A 30 percent disability rating for right knee instability associated with DJD is granted from July 12, 2020. The Board also finds that disability ratings in excess of 10 percent for right knee DJD s/p ACL repair based on limitation of flexion and in excess of 30 percent for right knee limitation of extension are not warranted. As the preponderance of the evidence is against the denied claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.