Citation Nr: 21011802 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-22 832 DATE: March 2, 2021 ORDER An initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to December 30, 2019, and in excess of 20 percent thereafter for low back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the entire appeal period, flexion in the Veteran’s right knee was not limited to 30 degrees, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, and he had no incapacitating exacerbations. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for DJD of the right knee have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1979 to July 1981. The increased rating claims were previously before the Board in August 2018 and April 2019 at which time they were remanded for further evidentiary development. Regarding the increased rating claim for the right knee, substantial compliance with the remand requests has been accomplished such that the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for the Veteran’s right knee disability and low back disability were granted in an October 2009 rating decision at 10 percent disabling respectively, effective July 15, 2008. The Veteran submitted a claim for increase in June 2011. Pursuant to the prior remands, the low back disability rating was increased to 20 percent, effective December 30, 2019, in an August 2020 rating decision. Service connection for left lower extremity radiculopathy secondary to the low back disability at 20 percent was also granted in that decision. The Agency of Original Jurisdiction (AOJ) indicated in the decision that the rating increase to 20 percent represented a full grant of the benefits sought on appeal as pertaining to that issue. However, the Veteran did not withdraw his Notice of Disagreement (NOD) or otherwise indicate that this grant satisfied his appeal. Thus, further action is needed by the AOJ to issue a Supplemental Statement of the Case (SSOC) on the issue of entitlement to a rating in excess of 10 percent for a low back disability prior to December 30, 2019, and in excess of 20 percent thereafter. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Further, entitlement to TDIU has been raised by the record and remanded as inextricably intertwined with the increased rating claim for the back disability. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for right knee DJD at 10 percent disabling effective July 15, 2008, under 38 C.F.R. § 4.71a, DC 5260, pertaining to limitation of flexion. As noted in the introduction, this appeal stems from the Veteran’s claim filed in June 2011 indicating his condition had worsened. Thus, the Board will consider the severity of his knee disability from June 2011, as well as whether there was a factually ascertainable increase in severity within the year preceding his increased rating claim. See 38 C.F.R. § 3.400(o)(2). The Veteran’s current 10 percent rating is based on painful limitation of motion with x-ray evidence of degenerative arthritis. See 38 C.F.R. § 4.59, 4.71a, DC 5260. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Under the pre-amended criteria, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing 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 prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted 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. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states 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. Also effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to 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. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, an August 2011 VA treatment record noted that the Veteran had a normal gait. There was no swelling in his right knee. He stated to clinicians that his back pain flared-up and affected his gait, causing increased pain in his bilateral knees. The Veteran underwent a VA examination in September 2014. He was diagnosed with bilateral knee DJD and it was noted that his nonservice-connected left knee was much more symptomatic than his service-connected right knee. While he had left knee pain most days, he only had right knee pain occasionally. He stated he could walk up to a mile and go up three to four flights of stairs but with pain. He denied flare-ups in the right knee. Flexion was to 135 degrees with no evidence of painful motion. Extension was to 0 degrees without evidence of painful motion. The Veteran was able to perform repetitive use testing without any additional loss of range of motion. Pain was noted on palpation. Muscle strength testing and joint stability testing yielded normal results. There was no evidence of patellar subluxation or dislocation, no meniscal conditions, and no other pertinent findings. The Veteran reported that he seldomly used a right knee brace for pain. The examiner determined that there was no functional impact from the disability. In a December 2016 treatment record, it was noted that the Veteran’s bilateral knee range of motion was “ok.” In February 2017, he reported that his right knee pain was worsening. His right knee had flared-up and was very painful and swollen for the past week. He stated that he was having problems walking and losing mobility. Pain was 8 out of 10. The Veteran demonstrated an even and steady gait with full range of motion and full weight-bearing. Clinicians noted that he was wearing a knee brace. Later in February 2017, clinicians stated that he was ambulating without assistance. He had bilateral knee pain but no effusion. Range of motion was noted to be “ok.” A physical therapy assessment was conducted in March 2017. The Veteran noted that his right knee was not as bad as his left knee. Range of motion in the right knee was 13 degrees to 114 degrees with end range pain. The knee was tender to palpation in the patellofemoral tendon and ligaments. In an April 2017 physical therapy note, the Veteran reported right knee pain that was a 2 to 3 out of 10. In June 2017, hinged knee sleeves were prescribed. Another VA examination was conducted in July 2017. The Veteran stated that at times his knee went out and he had to walk with a cane. He experienced swelling which had to be drained. He reported that he recently had to quit his job due to pain in his knees. He denied flare-ups but stated that he had increased pain with standing, walking, sitting, bending, squatting, kneeling, and climbing up or down stairs. He also reported instability due to weakness and an inability to run. Range of motion was 0 to 115 degrees in flexion and 115 to 0 degrees in extension. The resulting functional loss was that it was painful to kneel, walk, climb, and bend. Pain was noted upon both active ranges of motion, with weight-bearing, with passive range of motion, and with nonweight-bearing. There was moderate pain on palpation in the inferior aspect of the joint line and evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner concluded that the examination was neither medically consistent or inconsistent with the Veteran’s statements regarding functional loss with repetitive use over time. However, pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. Factors contributing to disability were determined to be weakened movement, swelling, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was slightly reduced to a 4 out of 5 in flexion and extension but there was no muscle atrophy. There was no ankylosis of the right knee. The examiner indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing yielded normal results. The Veteran had no patellar dislocation, shin splints, stress fractures, exertional compartment syndrome, or any other tibial or fibular impairment and had no meniscal conditions. He denied use of any assistive devices. The examiner determined that there was no functional impact from the right knee disability. In October 2017, it was noted that the Veteran had an antalgic gait because of knee pain. It was noted that he had had an injection in the right knee. In February 2018, July 2018, and October 2018 VA treatment records, it was stated that the Veteran had an antalgic gait because of bilateral knee pain. In May 2018, the Veteran was agin prescribed knee braces and sleeves. A January 2019 treatment record reflected that he had a steady gait and was wearing bilateral knee braces. The Veteran was prescribed wraparound hinged knee sleeves and Coreflex knee sleeves in July 2019. In August 2019 and November 2019 treatment records, it was noted that the Veteran’s knees were stable and that he required a knee brace. The Veteran underwent another VA examination in December 2019. He reported daily right knee pain and that the knee would give out at times when he was walking. He had intermittent swelling in the knee, but he also had nonservice-connected gout in his knee. He described using a scooter when out along with a walker as needed. He was “good” for about 20 minutes at a time. He noted his current symptoms to be chronic right knee pain, instability, stiffness, and limited mobility. The current treatment included cortisone injections every six months, rest, daily use of a knee brace, pain medication, and ice/heat as needed. He stated that his treating doctor recommended a bilateral knee replacement. He described random severe right knee flare-ups occurring 1 to 3 times a month lasting 3 days to 2 weeks. Regarding a functional impact, he stated that he had difficulty putting on his shoes, walking or standing more than 20 minutes, sleeping, getting in and out of vehicles, climbing up or down stairs, bending, kneeling, twisting, and increased activity. Range of motion was from 0 to 120 degrees in flexion and 120 to 0 degrees in extension. Due to the loss of range of motion, it was hard for the Veteran to kneel, walk, or climb. Pain was noted upon active flexion and extension, with weight-bearing, and with passive range of motion testing. There was no objective evidence of pain with nonweight-bearing. There was moderate sharp pain on palpation around the knee joint line. There was evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner concluded that the examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time. Pain and fatigue resulted with repeated use over time and range of motion was limited to 0 to 100 degrees in flexion and 100 to 0 degrees in extension. The examiner also concluded that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Pain and fatigue resulted during flare-ups and range of motion was limited to 0 to 110 degrees in flexion and 110 to 0 degrees in extension. There were no additional factors contributing to disability. Muscle strength testing was slightly reduced to a 4 out of 5 in flexion and extension but there was no muscle atrophy. There was no ankylosis of the right knee. The examiner indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing yielded normal results. The Veteran had no patellar dislocation, shin splints, stress fractures, exertional compartment syndrome, or any other tibial or fibular impairment and had no meniscal conditions. He reported regular use of a brace and occasional use of a walker. Regarding functional impact, the examiner noted that the Veteran reported he was forced to retire from his employment as an electrician since he was unable to climb ladders, walk, kneel, or lift due to his knees. A May 2020 treatment record noted that the Veteran’s knees were stable and that he used braces. The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the extent and severity of the Veteran’s right knee disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the September 2014 examination, the Veteran indicated that he was limited to walking up to a mile and going up three to four flights of stairs but with pain, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability. When the Veteran reported flare-ups, VA examiners determined the additional loss of function in terms of range of motion. Given the totality of the information, including the Veteran’s own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. A rating in excess of 10 percent for DJD of the right knee is denied. The Board notes that the criteria under which the Veteran’s right knee is currently rated, 38 C.F.R. § 4.71a, DC 5260, was not affected by the February 7, 2021, amendments. Further, because his disability was rated based on evidence of degenerative arthritis, the criteria under DC 5003 also was not affected as pertains to the Veteran. Under the criteria of DC 5260, the Veteran’s right knee disability did not warrant a rating in excess of 10 percent at any time during the appeal period. Flexion was not limited to 30 degrees, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, thereby warranting a 20 percent rating under the criteria of DC 5260. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 32. Although flexion was not limited to a compensable degree during the appeal period, the Veteran had x-ray evidence of degenerative arthritis in the knee and painful motion, warranting a 10 percent rating under the criteria of DC 5003. However, he had no incapacitating exacerbations meriting a 20 percent rating under the criteria of DC 5003. Accordingly, a rating in excess of 10 percent for right knee DJD under DC 5260 is not established. The Board has considered whether rating the knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran. However, rating either disability under DC 5256 is not indicated as there is no evidence of ankylosis. Further, the Veteran does not have any meniscal conditions warranting rating under DC 5258 or DC 5259. Extension has not been limited to 5 degrees such that additional rating might be available under DC 5261. Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263. The Board has considered whether an additional rating is warranted under the pre-amended or amended criteria of DC 5257 but finds that an additional rating is not merited under either diagnostic criteria. The Veteran has reported subjective complaints of feelings of instability and giving way in his right knee. He also has been prescribed knee braces and occasionally uses a walker or scooter for longer distances. However, objective evidence of instability in the right knee is not reflected during the appeal period, as joint, ligament, and meniscus stability tests have consistently been normal during clinical evaluation. Further, knee braces were noted by the Veteran to be used for right knee pain. Treatment records reflected that he experienced increased symptomology in his nonservice-connected left knee which required his use of assistive devices; they were not needed solely for his right knee. Based on the Veteran’s lay statements alone, there appears to be a lack of steadiness during ambulation from muscle weakness. However, there does not appear to be functional instability based on the medical evidence of record. Functional instability is the “inability of a joint to maintain support during use.” See Dorland’s Illustrated Medical Dictionary 958 (31st ed. 2007). As noted above, clinical testing did not indicate that the right knee joint could not maintain support such that instability was found. As such, lateral instability for purposes of rating under pre-amended DC 5257 has not been demonstrated during the appeal period. Nor was there any evidence of recurrent subluxation throughout the appeal period. As such, under the pre-amended criteria of DC 5257, an additional rating is not warranted. Applying the amended criteria of DC 5257, the Veteran did not have a ligament tear warranting a rating for recurrent subluxation or lateral instability. Further, there is no evidence of patellar instability involving the patellofemoral complex, as no instability has been demonstrated involving the quadriceps tendon, the patella, and the patellar tendon. Clinical testing specifically demonstrated no instability within the right knee itself. As such, under the amended criteria of DC 5257, an additional rating is not warranted. Accordingly, the right knee disability is most appropriately rated under DC 5260 and no additional ratings are indicated. The Board recognizes the Veteran’s belief that his right knee DJD merits a higher rating. However, an application of the relevant diagnostic codes and consideration of the DeLuca factors indicates that a higher evaluation is not warranted based on the evidence of record. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to December 30, 2019, and in excess of 20 percent thereafter for low back disability is remanded. As noted above, the rating for the Veteran’s low back disability was increased to 20 percent, effective December 30, 2019, in an August 2020 rating decision. The AOJ indicated in the decision that the rating increase to 20 percent represented a full grant of the benefits sought on appeal as pertaining to that issue. However, the Veteran did not withdraw his NOD or otherwise indicate that this grant satisfied his appeal. Thus, further action is needed by the AOJ to issue an SSOC on the issue of entitlement to a rating in excess of 10 percent for a low back disability prior to December 30, 2019, and in excess of 20 percent thereafter. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. at 241. 2. Entitlement to TDIU is remanded. As noted above, entitlement to TDIU has been raised by the record. However, as the increased rating claim for a low back disability remains in appellate status and resolution of that claim may affect the Veteran’s entitlement to TDIU, the TDIU claim is inextricably intertwined with the increased rating claim and is remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Issue an SSOC regarding the Veteran’s low back disability increased rating claim and claim to TDIU. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.