Citation Nr: 21011383 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-33 911A DATE: March 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee posttraumatic arthritis with limitation of extension is denied. Entitlement to a rating in excess of 20 percent prior to July 1, 2018 for residuals of a right knee lateral meniscectomy with limitation of flexion is denied. Entitlement to a rating in excess of 10 percent from July 1, 2018 to October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion is denied. Entitlement to a rating in excess of 30 percent from October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion is denied. Entitlement to a separate 10 percent rating for right knee symptomatic removal of semilunar cartilage is granted. Entitlement to a separate 10 percent rating, but no higher, from January 10, 2014 to October 26, 2020 for right knee instability is granted. Since October 26, 2020, a rating higher than 10 percent for right knee instability is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s service-connected right knee posttraumatic arthritis with limitation of extension has been manifested by limited, painful motion, and extension has been limited to 10 degrees. 2. For the period prior to July 1, 2018, the Veteran’s service-connected residuals of right knee lateral meniscectomy with limitation of flexion was manifested by a combination of locking, pain, and popping, but did not manifest in flexion limited to 15 degrees. 3. For the period from July 1, 2018 to October 26, 2020, the Veteran’s service-connected residuals of right knee lateral meniscectomy with limitation of flexion was manifested by a combination of locking, pain, and popping, but did not manifest in flexion limited to 30 degrees. 4. From October 26, 2020, the Veteran’s service-connected residuals of right knee lateral meniscectomy with limitation of flexion was manifested by a combination of locking, pain, and popping. 5. For the entire appeal period, the Veteran’s right knee disability has been manifested by stiffness, popping, and occasional swelling due to the removal of semilunar cartilage. 6. For the period from January 10, 2014, the Veteran’s right knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for posttraumatic arthritis of the right knee with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261. 2. The criteria for entitlement to a rating in excess of 20 percent prior to July 1, 2018 for residuals of a right knee lateral meniscectomy with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. 3. The criteria for entitlement to a rating in excess of 10 percent from July 1, 2018 to October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. 4. The criteria for entitlement to a rating in excess of 30 percent from October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. 5. The criteria for a separate 10 percent rating, but no higher, for symptomatic removal of semilunar cartilage have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5259. 6. The criteria for a separate 10 percent rating, but no higher, from January 10, 2014 to October 26, 2020 for right knee instability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 7. The criteria for a rating in excess of 10 percent for right knee instability since October 26, 2020 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1972 to July 1975. The Veteran’s right knee claims were remanded in January 2016 and again in June 2017. In January 2016, the Board determined there were outstanding records which should be associated with the Veteran’s file. In June 2017, the Board determined that the Veteran’s most recent May 2017 VA examination was inadequate. In July 2018, the Veteran’s right knee claims were denied. In November 2019, the Court of Appeals for Veterans Claims (Court) approved a Joint Motion for Partial Remand (JMPR) that vacated the July 2018 determination and remanded the matter. The Court determined that the Board had not adequately addressed the Veteran’s request for a hearing. Most recently, in July 2020, the Veteran’s claims were remanded by the Board once again. The Board determined that the Veteran’s previous VA examinations had not been sufficiently adequate in order to adjudicate the Veteran’s knee claims. As such, a new examination was required. That development having been completed, the Veteran’s claims are before the Board again and will be adjudicated below. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evaluating musculoskeletal disabilities based on limitation of motion, requires consideration of functional loss caused by pain or other factors listed in 38 C.F.R. § 4.40 that can occur during flare-ups or after repeated use and, so, may not be reflected on range-of-motion testing. Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant, 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."). 38 C.F.R. § 4.45 requires consideration also be given to motion that is less or more than normal, weakened, and painful as well as excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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). Also, § 4.59 requires consideration of pain "on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Consideration should also be given to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, including from the veteran when a flare-up is not observable on examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Procedural History and Rating Criteria Right knee posttraumatic arthritis with limitation of extension In April 2011, the Veteran filed a claim seeking entitlement to TDIU, which was also accepted as an increased rating claim for his service-connected right knee disabilities. The Veteran’s right knee disability is assigned separate ratings for service-connected residuals of lateral meniscectomy and post-traumatic arthritis as secondary thereto. In the February 2013 rating decision on appeal, the RO continued the ratings assigned to the Veteran’s service-connected right knee disabilities and denied entitlement to TDIU. The Veteran disagreed with the RO’s determination and has asserted that his service-connected right knee disabilities warrant higher ratings. The Veteran’s service-connected right knee posttraumatic arthritis is rated 10 percent disabling under Diagnostic Code 5010-5261. The current 10 percent rating is assigned based upon evidence showing the Veteran’s right knee disability is manifested by limited, painful extension. See October 2002 Rating Decision; February 2013 Rating Decision. A higher 20 percent rating is available for traumatic arthritis under DC 5010 with X-ray evidence of involvement of 2 or more major joints of 2 or more minor joint groups with occasional incapacitating exacerbations. Otherwise, arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. See 38 C.F.R. §4.71a, DC 5003, 5010. Limitation of motion of the knee is rated under diagnostic codes 5260 and 5261. Diagnostic Code 5260, which governs limitation of leg flexion, provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. Id. Diagnostic Code 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. Id. Residuals of a right knee lateral meniscectomy with limitation of flexion In the February 2013 rating decision on appeal, the RO continued the 20 percent rating assigned to the Veteran’s service-connected residuals of right lateral meniscectomy but, in an April 2018 rating decision, the RO determined that the evidence did not show any signs or symptoms related to the residual meniscectomy disability and reduced his rating to 10 percent, effective July 1, 2018. In a November 2020 decision, the RO increased the Veteran’s rating for his right knee meniscectomy with limitation of flexion to 30 percent, effective October 26, 2020. The Veteran’s service-connected residuals of right lateral meniscectomy is not specifically listed in the Rating Schedule. The Veteran’s disability has been rating under Diagnostic Code 5010-5260. 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 assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that arthritis due to trauma (Diagnostic Code 5010) is rated under the criteria for limitation of leg flexion (Diagnostic Code 5260). The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. Id. Diagnostic Code 5260, which governs limitation of leg flexion, provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. Id. Diagnostic Code 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. Id. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. Id. Diagnostic Code 5263 provides a maximum 10 percent rating for genu recurvatum that is acquired and traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Id. As the Veteran’s right meniscus has been surgically repaired and is not dislocated as contemplated under Diagnostic Code 5258, this code does not apply and will not be discussed in the analysis section below. 1. Entitlement to a rating in excess of 10 percent for posttraumatic arthritis of the right knee with limitation of extension 2. Entitlement to a rating in excess of 20 percent prior to July 1, 2018 for residuals of a right knee lateral meniscectomy with limitation of flexion 3. Entitlement to a rating in excess of 10 percent from July 1, 2018 to October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion 4. Entitlement to a rating in excess of 30 percent from October 26, 2020 for residuals of a right knee lateral meniscectomy with limitation of flexion 5. Entitlement to a separate 10 percent rating for right knee symptomatic removal of semilunar cartilage 6. Entitlement to a separate 10 percent rating, but no higher, from January 10, 2014 to October 26, 2020 for right knee instability 7. Entitlement to a rating in excess of 10 percent for right knee instability from October 26, 2020 The Board notes that the Veteran has been assigned a separate 10 percent rating for right knee instability as of October 26, 2020. Turning to the evidence of record, a June 2011 VA treatment record reflects that the Veteran had one emergency room visit for knee pain at St. Luke’s over the last six months. In the January 2016 Board remand, the RO was required to attempt to obtain records from St. Luke’s regarding the Veteran’s knee. In addition, at the time the Board also requested that the RO attempt to obtain any relevant treatment records from 2014. The United States Court of Appeals for Veterans Claims has held there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare-ups or repetition over time and that the fact that the examination did not take place under those circumstances is not an adequate rationale. Sharp v. Shulkin, 29 Vet. App. 26 (2017). January 2013 x-rays of the Veteran’s right knee indicated that the Veteran had tricompartmental degenerative joint disease, and no fracture-dislocation, joint effusion, or radiopaque foreign body. At the Veteran’s February 2013 VA examination, he was diagnosed with osteoarthritis of the right side, and osteoarthritis of the left side. The Veteran reported that flare-ups impacted his functional ability, describing impact as appearing while climbing stairs or squatting. Initial range of motion testing showed flexion from 0 to 120 degrees, with pain at 100 degrees, and extension from 140 to 0 degrees showing no limitation of extension and no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions, with post-test range of motion flexion from 0 to 120 degrees, and extension from 140 to 0 degrees, with no limitation in extension. The examiner noted that the Veteran did not have any additional limitation in range of motion of the knee and lower leg following repetitive use testing. The examiner also noted that the Veteran did not have any functional loss or functional impairment of the knee and lower leg; the examiner indicated that the Veteran had less movement than normal in both the right and left legs. During the examination, the Veteran had tenderness or pain to palpation for joint line to soft tissues of the right knee. Muscle strength testing showed right knee flexion and extension as 5/5 or normal strength. Joint stability testing revealed that the Veteran had normal anterior instability, normal posterior instability, and normal medial lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted the Veteran’s meniscal conditions of meniscal tear and frequent episodes of joint pain, and residual joint pain following the Veteran’s right knee meniscectomy in 1975. At the time of the examination, the Veteran was not using any assistive devices. Imaging studies of the knee showed generative or traumatic bilateral arthritis, and no other significant test findings or results. The examiner determined that the Veteran’s condition impacted his ability to work, reasoning that his service-connected right knee condition limited his ability to squat and bend, and therefore limited his ability to engage in physical employment that required those activities. During the Veteran’s January 2014 VA examination, he was diagnosed with right knee degenerative arthritis and right knee meniscectomy, following excision of right lateral meniscus tear. The Veteran reported that since his last VA examination, his knee condition continued to get worse. At the time, the Veteran reported pain, swelling, and popping. The Veteran reported that if he placed pressure or weight bearing, his right knee moved sideways and gave out. He also reported instability in his right knee, and a pending appointment for fitting of a right knee brace. On a scale of 1 to 10 with ten being the most severe, the Veteran reported that his current pain was an 8 out of 10. He also reported that he was unable to climb up and down stairs without right knee pain, and that his knee gave way laterally. As to flare-ups, the Veteran reported that flare-ups did impact the function of his knee. He reported that flare-ups moderated his pain when climbing stairs. Initial range of motion testing showed flexion from 0 to 80 degrees with pain at 80 degrees, and extension from 140 to 10 degrees, with pain at 10 degrees. The Veteran was able to perform repetitive use testing with 3 repetitions. Flexion and extension were unchanged from the Veteran’s initial range of motion testing. The examiner noted that the Veteran did not have any additional limitation in range of motion of the knee following repetitive use testing, but did suffer from functional loss or functional impairment of the knee. The examiner indicated the contributing factors were as follows: less movement than normal, incoordination or impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, and interference with sitting, standing, and weightbearing. The Veteran experienced tenderness or pain to palpation for joint line or soft tissue. Muscle strength testing was 3/5, or active movement against gravity, for flexion and extension of the right knee. Joint stability tests were normal for anterior instability and posterior instability, but were 1+ for medial lateral instability. There was no history of recurrent patellar subluxation or dislocation noted. The examiner noted the Veteran’s meniscal conditions, including meniscal tear, frequent episodes of joint locking, and frequent episodes of joint pain. At the time of the examination, the Veteran was not using any assistive devices. Imaging studies of the knee revealed degenerative or traumatic arthritis of the right knee. There was no evidence of patellar subluxation. The examiner concluded that the Veteran’s lower leg condition impacted his ability to work, reasoning that the Veteran currently was unable to climb up and down stairs without knee pain and his knee giving way laterally. The examiner opined that with regards to the Veteran’s clinical examination, with repetitive use the Veteran’s range of motion of his right knee may or may not be reduced. The examiner was unable to state the degree of additional range of motion loss due to pain on use or during flare-ups without speculation. The Veteran reported moderate to severe right knee swelling and pain, and flare-ups moderating pain with climbing stairs. The Veteran’s February 2013 and January 2014 VA examinations failed to fulfill the requirements of Sharp. These examiners did not provide opinions with regard to the functional impact of flare ups or repetition over time. In a January 2017 medical treatment record, the Veteran reported a sensation of buckling when walking, and requested a walker or cane. In February 2017, the Veteran had a chief complaint regarding his knees. March 2017 treatment records show that the Veteran suffered a fall at his home. In April 2017, the Veteran reported that his knees made walking too painful. The Veteran was afforded an additional VA examination in May 2017. The examiner noted that the Veteran began using a cane in 2017, and that walking was limited due to both knees, with his right knee worse than his left. The Veteran did not report flare-ups. The Veteran did report having functional loss of functional impairment of the right knee; the Veteran described functional impairment as limited walking and activity exceeding that secondary to heart condition due to his knees, with decreases in standing and walking. Initial range of motion testing was abnormal or outside of normal range, with flexion 10 to 120 degrees, and extension 120 to 10 degrees. The examiner noted that range of motion contributed to the Veteran’s functional loss, explaining that it prevented bending and limited extension increases limp. In addition, pain noted on the examination caused functional loss. Specifically, extension exhibited pain. There was evidence of pain with weight bearing, and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, specifically in the lateral joint line. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions, and there was no additional functional loss or range of motion after 3 repetitions. The examiner noted several additional factors contributing to the Veteran’s disability: less movement than normal due to ankylosis, adhesions, etc., atrophy of disuse, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing resulted in 3/5, or active movement against gravity, for extension and flexion. This was a reduction in muscle strength which the examiner noted was entirely due to the Veteran’s claimed right knee condition. The examiner noted the presence of muscle atrophy on the right thigh with a circumference of more normal side of 59 centimeters, and a circumference of atrophied side of 55 centimeters. The Veteran did not exhibit ankylosis, and there was no history of recurrent subluxation. Stability testing was performed, and there was no joint instability noted. Anterior instability, posterior instability, medial instability, and lateral instability were all noted as normal. There was no patellar dislocation noted. The examiner noted the Veteran’s meniscal condition. As to other pertinent physical findings, the examiner wrote that the Veteran struggled to rise from his chair using cane in his right hand. In addition, it was noted that the Veteran had bilateral LE edema and pigmentation with dressing right lower leg. The examiner found that the Veteran’s knee condition impacted his ability to work, reasoned that the Veteran had limited standing capability and walked with pain. The examiner noted that the examination was not after repetition over time and opined that there would be significant limitation of functional ability with repetition over time. However, the examiner further opined that this could not be described in terms of range of motion because “overall all range decreased from last C and P but no evidence of changes with repetition.” This is effectively a finding that the degree of additional limitation with repetition over time could not be quantified because the examination was not under those circumstances, which is inadequate under Sharp. In addition, the Board has previously found that the May 2017 examination is inadequate under Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The May 2017 VA examination did not satisfy these requirements. The Board also previously determined that the May 2017 VA examination failed to provide x-rays, and should be performed in his upcoming examination. The Veteran was afforded an additional VA examination in December 2017. The Veteran reported daily right knee pain and did not report flare-ups of the right knee. The Veteran did not report any functional loss or functional impairment of the right knee. Initial range of motion testing produced abnormal or outside normal range results. The Veteran’s flexion was 5 to 110, and extension was 110 to 5. The examiner noted that range of motion contributed to functional loss, with some decreased range of motion as visible in the numbers above. There was pain on extension, as well as evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions, and there was no additional functional loss or range of motion after 3 repetitions. Muscle strength testing showed 5/5, or normal strength, for extension and flexion, with no reduction in muscle strength. The Veteran did not exhibit muscle atrophy. No history or recurrent subluxation was noted, nor a history of lateral instability, or recurrent effusion. Joint testing resulted in normal findings for anterior instability, posterior instability, medical instability, and lateral instability. The examiner noted the Veteran’s meniscal issues and history. He did not note any other pertinent findings. The examiner did note that the Veteran regularly used a cane. X-rays done on that date showed moderate to marked degenerative joint disease at all three compartments, no fracture dislocation, no evidence of lytic or blastic bony lesions, no evidence of suprapatellar effusion, and no radiopaque foreign body or abnormal calcification. The examiner determined that the Veteran’s knee caused functional impairment. The examiner explained that where possible, the joint examination employed active and passive assessments of range of motion for involved and uninvolved joints, and where possible involved and uninvolved joints were assessed for weightbearing and non-weightbearing testing, painful responses were also recorded in appropriate sections. The examiner expressed an inability to determine whether there would be significant limitation of functional ability with repetition over time without resorting to speculation. When asked for a rationale, the examiner’s only response was to repeat that he was “unable to say without resorting to mere speculation.” The Veteran was afforded a VA examination in February 2020. The Veteran reported that his knee pain is an 8 out of 10 in severity regularly, and that his knee pain is a 10/10 on a flare-up day which could last the entire day. At the time of the examination, the Veteran confirmed his pain was an 8 out of 10, and that he was not comfortable. Flare-up day range of motion was estimated to be flexion to 90 and extension to 5. The Veteran reported functional impairment, described as difficulty walking and standing for periods of time, and inability to run, having difficulty walking on a stairway. He also reported difficulty bending over and lifting. Initial range of motion was abnormal, with flexion from 5 to 95, and extension from 95 to 5. The examiner noted that pain impacted range of motion, and range of motion was limited due to pain. There was evidence of pain with weight bearing, evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, described as tenderness at bilateral medical and lateral aspect of the front joint line. There was no evidence of crepitus. The Veteran was not able to perform repetitive use testing with at least 3 repetitions. The Veteran indicated that he felt repetitive movement would increase more pain and that the pain would continue over the next several days. The examiner found that the examination was consistent with the Veteran’s statements regarding repetition over time and that there would be significant limitation of functional ability with repetition over time. However, the examiner further opined that this could not be described in terms of range of motion because “[t]he repetition motion elicited more pain aggravated condition.” This rationale is not sufficiently comprehensible to provide an adequate explanation. The examiner found that there were additional contributing factors of the Veteran’s disabilities, including instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, with 5/5 results for flexion and extension. The Veteran did not exhibit muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability noted. Joint stability testing was normal for anterior instability, posterior instability, medical instability, and lateral instability. The examiner appropriately documented the Veteran’s meniscus history. Other pertinent findings included a cellulitis open wound with some stained dressing. The Veteran was noted as having used a walker constantly. The examiner determined that the Veteran’s knee impacted his functional ability, explaining that prolonged walking or standing would be problematic. None of the aforementioned examinations were adequate under Sharp, and as such, the Veteran was provided a new examination in October 2020. In the Veteran’s October 2020 VA examination, the examiner determined that the Veteran suffered from bilateral degenerative arthritis. The examiner also determined that the Veteran suffered from residuals of right knee lateral meniscectomy. The Veteran reported that since the onset of his knee problems, he experienced increased pain in both knees and had to use a wheeled walker for the past two years. He also reported that he has seven steps into his apartment, and it takes him 10 minutes; he has to grab the handrail and the wall to prevent falling. The Veteran reported that he has a bedside urinal because he cannot get up at night to use the restroom, and either knee can give out. In addition, getting in or out of a car the Veteran has to use a plastic step, and pull his legs into the car after sitting. The Veteran’s knees also pop with any movement and even sitting his knees are painful. The Veteran reported flare-ups of the right knee, reporting that flare-ups occur when he moves wrong, and sometimes when he falls asleep on the couch and moves wrong which causes his right knee to wake him up with pain. He described the frequency of the flare-ups as twice a week. The Veteran reported functional loss, described as using an electric cart when going to the store. He followed up, stating that he needs help unloading into his car, and fighting to get back into his truck. Initial range of motion testing revealed abnormal or outside normal range. In degrees, the Veteran’s flexion measured 10 to 80 degrees, and extension 80 to 10 degrees. The examiner noted that range of motion contributed to functional loss. The examiner explained that the Veteran was not able to bend down because he will fall over, and his knees are not strong enough to allow him to get down and then stand up without using something to hold on to. There was pain noted on the examination during flexion and extension that caused functional loss. The examiner noted that the Veteran experienced a stabbing and throbbing in the medial and lateral collateral, mostly over his lateral right knee scar. The examiner described the pain as severe, and directly related to the Veteran’s claimed condition. The examiner observed that the Veteran was able to perform repetitive use testing with at least three repetitions, and there was no loss of function or range of motion after three repetitions. The examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner determined that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Described in terms of range of motion, the Veteran’s flexion was 10 to 10, and extension was 10 to 10. The examiner noted that the knee was not being examined immediately after repetitive use over time, but that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that the examination was not being conducted during a flare-up, but that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner also noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups. The examiner described in terms of range of motion that flexion was 10 to 5 degrees, and extension was 5 to 10 degrees. On the right side, in addition to the above, the examiner noted the following additional factors: instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The examiner elaborated, noting when standing in place the Veteran has to hold onto something because his knees will not support him; his knees will give out and he will fall within 5-6 minutes. If he doesn’t sit down, then he will fall down. As to interference with sitting, when sitting down in a chair the Veteran has to grab the backrest and the seat in order to lower himself into the chair. Regarding interference with standing, when standing up from a chair the Veteran has to grab the seat with both hands and push himself to a standing position. He has to use a table and then the arm of the chair to stand up before walking. When standing in the examination room he had to use the wheeled walker to pull himself up and then hold on while he got his strength in the knees to start walking. The Veteran’s muscle strength testing revealed 3/5 for right side flexion and extension, with a reduction in muscle strength due to the Veteran’s claimed condition. The Veteran did not exhibit muscle atrophy or ankylosis. The Veteran suffered from slight recurrent subluxation and slight lateral instability. Joint stability testing revealed joint instability at 1+ for anterior instability, 1+ for posterior instability, normal for medial instability, and normal for lateral instability. The Veteran did not exhibit shin splints. On the right side, the Veteran had a meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain and frequent episodes of joint effusion. The examiner described that both of the Veteran’s knees locked up when sitting, and that the Veteran had a meniscectomy in 1976 with frequent joint swelling with just standing. As to other pertinent findings, the examiner noted that the Veteran had bilateral lower extremity lymphedema with active weeping, 3 from knees to ankles and used gauze wrap over both legs. The Veteran was noted as using a walker and a wheeled walker when out. The examiner performed imaging studies, and x-ray of the right knee showed tricompartmental arthritis with joint space narrowing, lateral greater than medial, similar to the preceding study. There was no acute fracture, small joint effusion, and arteriosclerosis. The examiner determined that the Veteran’s knee condition impacted his ability to work or perform any type of occupational task. The examiner explained that the Veteran was a retired semitruck driver, with 0-1 week of work time lost in the last 12 months. The Veteran was not able to bend down and lift anything with his knee pain and instability, and has severe trouble getting down and then standing back up when holding onto something. Recently, the Veteran had fallen several times with the most recent occurrence 3 weeks with a laceration to his right shin. The examiner noted that the right knee showed objective evidence of pain on passive range of motion testing, and objective evidence of pain when the joint was used in non-weight bearing. The examiner indicated that the Veteran had a new diagnosis of right knee arthritis. While the Veteran was service-connected for right knee meniscectomy, the Veteran had now developed arthritis of the right knee, which was a progression of the right knee meniscectomy. Posttraumatic arthritis of the right knee with limitation of extension Based on a review of the evidence, the Board finds that the Veteran's posttraumatic arthritis of the right knee has been correctly rated as 10 percent disabling. With regard to Diagnostic Code 5261 (limitation of extension), the Veteran cannot be assigned a higher evaluation due to limitation of extension. The Board finds that the Veteran’s right knee traumatic arthritis has been manifested by extension limited to 10 degrees warranting a 10 percent rating under Diagnostic Code 5261. The Board notes that through the entire appeal period the Veteran’s VA examinations reflect that his extension has routinely been limited to 10 degrees. The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, supra. However, the 10 percent rating for the Veteran’s right knee disability under Diagnostic Code 5261 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Accordingly, consideration of other factors of functional limitation does not support the grant of a higher rating than the 10 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The preponderance of the evidence is against the award of a rating in excess of the currently assigned 10 percent rating for the Veteran’s right knee posttraumatic arthritis. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Residuals of a right knee lateral meniscectomy with limitation of flexion prior to July 1, 2018 The Board has considered the medical and lay evidence of record, but finds that the preponderance of the evidence is against the claim for a higher rating than 20 percent for the period prior to July 1, 2018 under Diagnostic Codes 5010-5260. For a 30 percent rating, there must be evidence that flexion is limited to 15 degrees. Here, the evidence shows that for the period on appeal, flexion was limited to no more than 80 degrees. The Board finds that the Veteran’s right knee disability has been manifested by pain, pain on palpation, and flexion limited to no more than 80 degrees. Such limitation of flexion warrants a 10 percent disability rating for the right knee disabilities under Diagnostic Code 5010-5260; nonetheless, the Veteran was provided a 20 percent rating. At no point during the period of appeal has the Veteran been found to have flexion limited to 15 degrees to warrant a 30 percent rating under Diagnostic Code 5010-5260. The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, supra. However, the 20 percent rating for the Veteran’s right knee disability under Diagnostic Code 5010-5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Accordingly, consideration of other factors of functional limitation does not support the grant of a higher rating than the 20 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. In sum, the preponderance of the evidence is against the award of a rating in excess of 20 percent for the Veteran’s right knee disability based on limitation of flexion for the period prior to July 1, 2018 under Diagnostic Code 5010-5260. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Residuals of a right knee lateral meniscectomy from July 1, 2018 to October 26, 2020 After careful review, the Board finds that for the period under consideration, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the Veteran’s right knee disability under Diagnostic Codes 5010-5260. For a 20 percent rating, there must be evidence that flexion is limited to 30 degrees. Here, the evidence shows that for the period from July 1, 2018 to October 26, 2020, flexion was limited to no more than 95 degrees. The Board finds that the Veteran's right knee disability was manifested by pain, pain on palpation, and flexion limited to no more than 95 degrees. Such limitation of flexion warrants a 10 percent disability rating for the Veteran’s right knee disability under Diagnostic Code 5010-5260. At no point during the period of appeal has the Veteran been found to have flexion limited to 30 degrees to warrant a 20 percent rating under Diagnostic Code 5010-5260. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, supra. However, the 10 percent rating for the Veteran’s right knee disability under Diagnostic Code 5010-5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Accordingly, consideration of other factors of functional limitation does not support the grant of a higher rating than the 10 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. In sum, the preponderance of the evidence is against the award of a rating in excess of 10 percent for the Veteran's right knee disability for the period from July 1, 2018 to October 26, 2020 under Diagnostic Code 5010-5260. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Residuals of a right knee lateral meniscectomy from October 26, 2020 The Board notes that the most recent evidence of record, an October 2020 VA examination, enabled the RO to increase the Veteran’s rating to 30 percent. There is not any more recent pertinent evidence of record with which the Board may use to rate the Veteran’s right knee disability. As such, the Board will consider the Veteran’s October 2020 VA examination in determination of whether a higher rating than 30 percent for the period from October 26, 2020 is warranted. After careful review, the Board finds that for the increased rating period under consideration, the record does not demonstrate the requisite manifestations for a rating in excess of 30 percent for the Veteran’s right knee disability under Diagnostic Codes 5010-5260. 30 percent is the maximum rating for flexion under diagnostic code 5260. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, supra. However, the 30 percent rating for the Veteran’s right knee disability under Diagnostic Code 5010-5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Accordingly, consideration of other factors of functional limitation does not support the grant of a higher rating than the 30 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. In sum, the preponderance of the evidence is against the award of a rating in excess of 30 percent for the Veteran’s right knee disability for the period from October 26, 2020 under Diagnostic Code 5010-5260. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Other considerations The Board has also considered whether separate or increased ratings may be assigned under other diagnostic codes for the entire appeal period, and finds that the Veteran clearly did not have ankylosis to warrant a separate rating under Diagnostic Code 5256 (ankylosis), and there is no evidence of malunion of the tibia and fibula, or genu recurvatum to warrant separate ratings under Diagnostic codes 5262 (malunion of the tibia and fibula), or 5263 (genu recurvatum). The Board finds that for the period since January 10, 2014, the Veteran’s right knee disability manifested by slight instability to warrant a separate 10 percent rating. The Veteran reported instability at his January 2014 VA examination, and the examiner noted objective evidence of abnormal medial lateral instability. Moreover, although the VA examiner in February 2020 did not make any objective findings of instability, instability of station was noted as an additional contributing factor to his disability. Further, the VA examiner in October 2020 noted that instability of station was an additional contributing factor to the Veteran’s disability, and the Veteran exhibited abnormal joint instability in the anterior instability test and the posterior instability test. However, a 20 percent rating is not warranted for instability, as the overall evidence does not show that the right knee instability has been moderate in nature. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Indeed, the May 2017 and December 2017 VA examinations showed normal results following instability testing. The Board also finds that a separate 10 percent rating under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage is warranted for the entire appeal period. It is undisputed that the Veteran underwent a right knee meniscectomy prior to the period of appeal, and that he has continued to experience right knee symptoms since that time. Although separate ratings under 5259 and 5260 can constitute impermissible pyramiding, the Board finds that in this case separate ratings under Diagnostic Code 5259 are not precluded. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5010-5260, the Veteran is compensated for limitation of leg flexion. The Board finds that a separate rating under Diagnostic Code 5259 for the Veteran’s right knee disability is warranted for the Veteran’s other reported symptoms, including stiffness, popping, and occasional swelling. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent rating, but no higher, is granted for right knee instability since January 10, 2014, and a separate 10 percent rating under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage is granted for the entire appeal period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.