Citation Nr: 21011805 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-30 512 DATE: March 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a rating in excess of 10 percent for the period of August 14, 2014, to December 23, 2015, for chondromalacia patellae, meniscus tear, right knee, with noncompensable limitation of motion and pain, is denied. Entitlement to a separate rating of 20 percent, but not higher, for the period from August 14, 2014, to December 23, 2015, for chondromalacia patellae, meniscus tear, right knee, with locking, pain, and effusion, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for the period of April 1, 2016, to June 22, 2016, for chondromalacia patellae, meniscus tear, right knee, with noncompensable limitation of motion and pain, is denied. Entitlement to a separate rating of 10 percent, but not higher, from April 1, 2016, to June 22, 2016, for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy, with symptomatic, partially removed, meniscus, is granted, subject to the law and regulations governing the payment of monetary benefits. From October 1, 2016, to July 23, 2017, entitlement to a temporary 100 percent rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and partial knee replacement, is granted, subject to the law and regulations governing the payment of monetary benefits. From July 24, 2017, to July 17, 2018, a 60 percent, but not higher, rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and partial knee replacement is granted, subject to the law and regulations governing the payment of monetary benefits. From September 2, 2019, a 60 percent, but not higher, evaluation for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and total knee replacement, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s tinnitus is related to noise exposure during service. 2. For the period from August 14, 2014, to December 23, 2015, the Veteran’s chondromalacia patellae, meniscus tear, right knee, was manifested by locking, pain, and effusion with noncompensable limitation of motion and pain. 3. From April 1, 2016, to June 22, 2016, the Veteran’s chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy, was manifested by symptomatic, partially removed, meniscus, with noncompensable limitation of motion and pain. 4. On June 23, 2016, the Veteran underwent partial right knee replacement surgery the nature and extent of which is reasonably shown to be equivalent to a prosthetic replacement of a knee joint as contemplated by Diagnostic Code 5055. Convalescence was initially awarded through September 30, 2016, but additionally appropriate under Diagnostic Code 5255 through July 23, 2017. 5. From July 24, 2017, to July 17, 2018, the Veteran’s chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and partial knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness. 6. On July 18, 2018, the Veteran underwent total right knee replacement surgery. 7. From September 2, 2019, the Veteran’s service-connected right knee disability has been manifested by chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. From August 14, 2014 to December 23, 2015, the criteria for entitlement to a rating in excess of 10 percent for chondromalacia patellae, meniscus tear, right knee with noncompensable limitation of motion and pain, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5261. 3. From August 14, 2014 to December 23, 2015, the criteria for entitlement to a separate rating of 20 percent, but not higher, for chondromalacia patellae, meniscus tear, right knee, with locking, pain, and effusion, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5258. 4. From April 1, 2016, to June 22, 2016, the criteria for entitlement to a rating in excess of 10 percent for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy, with noncompensable limitation of motion and pain, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5261. 5. From April 1, 2016 to June 22, 2016, the criteria for entitlement to a 10 percent rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy, with symptomatic, partially removed, meniscus, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5259. 6. From October 1, 2016 to July 23, 2017, the criteria for entitlement to a temporary 100 percent rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and partial knee replacement, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.30(a); 4.71a, DC 5055. 7. From July 24, 2017 to July 17, 2018, the criteria for entitlement to a 60 percent rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and partial knee replacement, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5055. 8. From September 2, 2019, the criteria for entitlement to a 60 percent rating for chondromalacia patellae, meniscus tear, right knee, status post partial meniscectomy and total knee replacement are met. 38 U.S.C. § 1155; C.F.R. § 4.71a; DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1982 to May 1986 and from December 1988 to November 1996. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). In August 2020, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. 1. Entitlement to service connection for tinnitus Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309 (a). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is available for tinnitus as an organic disease of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran has asserted that his tinnitus is related to noise exposure during service. Review of the Veteran's service treatment records indicate no complaints or treatment of tinnitus. The Veteran’s primary military occupational specialty during service was radio operator, which has a moderate probability of hazardous noise exposure. Therefore, exposure to hazardous noise in service has been established. The Veteran was afforded a VA examination in February 2017. The examiner noted that the Veteran reported recurrent tinnitus as of 2007. It was intermittent and fluctuated between the ears. Within the prior six months, it has become increasingly steady and bilateral. He stated it is mostly annoying to him but does not interfere with daily routines or sleeping. He stated that in quiet situations it is quite loud and annoying. The examiner opined that it is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The rationale was that the Veteran’s job activities during service had a low probability of noise exposure. In a March 2017 statement, the Veteran indicated that during service his job as a radioman required him to have headphones to listen to numerous receivers and transmitters on a regular basis. Often, he would be listening for clear channel and would hear “rushing” noise coming from other channels. While the headphones blocked out ambient outside noise, they concentrated other sounds coming across the frequencies. The Veteran was also a Morse code operator and teacher. During his August 2020 hearing, the Veteran testified that his MOS during service was primarily radioman. He served as a tech controller, working in the telecommunications department of the ship working with receivers, transceivers. He also copied Morse code, and taught Morse code, so he was constantly listening to the loud white noise and “dits and dots.” That involved high frequency noise. He spent three years teaching Morse code so he listened to it every day, eight hours a day. He stated he can still hear it and used to have dreams about Morse code. There was white noise from receivers and he wore headsets to listen to communications. He stated that because HF frequencies fade throughout the day, he was constantly trying to find clean frequencies and to do that you put a headset on and manually go through each frequency from really quiet to ones that have so much noise that is “blasting in your ears.” By the end of the day “all you hear is the crackling.” He testified that he first heard the ringing in his ears in the late 80s, when he was still on active duty. It would come for a while and then fade out and come back until it got to the point where it was an everyday thing and it just kept getting worse. He stated that his grandchildren speak at a frequency level that he has trouble hearing them even with hearing aids. He stated that he did not have any post service employment with similar noise exposure. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses. The Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the VA examiner’s opinion is entitled to little if any probative value as the Veteran’s MOS of radioman has a moderate probability of noise exposure, not a low level as asserted by the examiner. Therefore, hazardous noise exposure is established. Further, the Veteran's hearing testimony and statements regarding in-service noise exposure are consistent with the circumstances of the Veteran's service and tinnitus is a chronic disorder, which may be linked to service by way of credible reports of a continuity of symptoms since service. The Veteran’s statements that this disability was present during active service and his MOS with a moderate probability of noise exposure are sufficient to link such disability to service. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is therefore warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. 2. Entitlement to an increased rating for a right knee disability to include right knee status post total knee replacement Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 5055, for a total knee replacement with prosthesis, a 100 percent evaluation is assigned for 1 year following implantation of the prosthesis. After that year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the rater is directed to evaluate as analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not considered to be contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (including swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. For the purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 Disabilities of the knee are rated under DC 5256 through DC 5263 of 38 C.F.R. § 4.71a (2016). Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings between 30 and 60 percent. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. A slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. A severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016). Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016). Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a non-compensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2016). Under Diagnostic Code 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees. A 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees. A 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2016). In addition, degenerative or traumatic 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 non-compensable 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 DC 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 10 percent rating is warranted for X-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003, 5010. Initially, the Board will outline the relevant history of the Veteran’s claim before discussing the evidence. A January 2004 rating decision granted service connection for chondromalacia patellae, right knee, with an evaluation of 10 percent effective July 3, 2003. The Veteran filed a claim for an increased evaluation of his right knee disability and a supplemental claim for right knee joint degeneration and right knee chondromalacia patella on August 14, 2014. The 10 percent evaluation was continued in a December 2014 rating decision based on painful motion of the knee and X-ray evidence of degenerative arthritis along with limitation of motion of the joint. 38 C.F.R. § 4.59. Following the denial of the August 14, 2014, claim for a rating in excess of 10 percent, the Veteran submitted an intent to file another increased rating claim on July 30, 2015. The Veteran was diagnosed with internal derangement of the right knee and underwent arthroscopy of the right knee with partial lateral meniscectomy, and a chondroplasty of the lateral compartment, and injection of steroids on December 24, 2015. Post-operative diagnoses were lateral meniscus tear, posterior horn, degenerative lateral meniscus tear, right knee and grade 3 primary osteoarthritis lateral compartment of the right knee and synovitis right knee. The Veteran filed a claim for an increased evaluation on February 5, 2016. A May 2016 rating decision continued the evaluation at 10 percent. Medical records show an operative report dated June 23, 2016, with a preoperative diagnosis of primary osteoarthritis of the right knee. The Veteran underwent arthroscopy and chondroplasty of the lateral compartment and unicompartmental knee replacement with a surgeon referred under Choice insurance. He was discharged with an order for a walker. The Veteran filed a claim for entitlement to a temporary 100 percent evaluation due to knee surgery and for an increased evaluation on July 11, 2016. An August 2016 rating decision assigned a temporary evaluation of 100 percent effective December 24, 2015, for service-connected chondromalacia patellae, meniscectomy, right knee status post arthroscopy with partial lateral meniscectomy and chondroplasty of the lateral compartment based on surgical or other treatment necessitating convalescence. An evaluation of 10 percent was assigned from April 1, 2016. An evaluation of 100 percent was assigned effective June 23, 2016, for service-connected chondromalacia patellae, meniscectomy, right knee status post arthroscopy with partial lateral meniscectomy, chondroplasty of the lateral compartment and unicompartmental knee replacement, based on surgical or other treatment necessitating convalescence. An evaluation of 10 percent was assigned from October 1, 2016. On October 21, 2016, the Veteran filed a claim for an increased rating. A March 2017 rating decision increased the evaluation for chondromalacia patellae, meniscus tear, right knee (5014), status post arthroscopy with partial lateral meniscectomy, chondroplasty of the lateral compartment and unicompartmental knee replacement, from 10 percent disabling to 30 percent disabling, effective October 1, 2016. This was based on limitation of extension of 20 to 29 degrees and symptomatic residuals of semilunar cartilage removal. The Veteran filed a Notice of Disagreement on March 29, 2017. He included a statement that he disagreed with the assigned rating due to the circumstances related to his surgery. He stated that following his June 2016 partial knee replacement surgery, VA did not authorize any assisted device when he was discharged although his doctor had ordered a walker. He stated that the VA also did not initially authorize physical therapy until almost a month had passed and that the delay required him to have a manipulation performed to “break up scar tissue.” The Veteran stated that this delay prevented physical therapy from being as effective. He stated he was unable to straighten his leg which impacted his gait. A February 2018 Supplemental Statement of the Case continued the 30 percent evaluation. The Veteran appealed, and requested a hearing. The Veteran underwent a total right knee replacement surgery at a VAMC on July 18, 2018. On August 3, 2018, the Veteran filed a claim for entitlement to a temporary 100 percent evaluation due to the knee surgery. A September 2018 rating decision established a 100 percent disability evaluation for right knee status post total knee replacement, effective July 18, 2018, the date of surgery. An evaluation of 30 percent was assigned from September 1, 2019, the first day of the month following 13 months of convalescence. The Veteran filed a claim for an increased evaluation of his right knee disability and a supplemental claim for right knee joint degeneration and right knee chondromalacia patella on August 14, 2014. The Veteran seeks a higher initial rating for his service-connected right knee disability throughout the pendency of the appeal. Analysis (a) Entitlement to a rating in excess of 10 percent from August 14, 2014, to December 23, 2015. The Veteran’s right knee disability was rated as 10 percent disabling based on painful motion of the knee and X-ray evidence of degenerative arthritis along with limitation of motion. The Veteran was afforded a VA examination in October 2014. The examiner noted a diagnosis of degenerative joint disease. X-rays indicated degenerative or traumatic arthritis. When compared to 2003 X-rays, these showed a progression of degenerative joint disease. The Veteran complained that his knee hurt all the time. He stated he can only walk about 1/8 of a mile before stopping to rest his knee. He did not report flare-ups. Range of motion testing (ROM) noted flexion was 125 degrees with objective evidence of painful motion. No limitation of extension or objective evidence of painful motion on extension. Post-repetitive use ROM testing noted 130 degrees flexion and no limitation of extension. ROM testing was stable since a prior 2003 VA examination. Functional loss was noted as pain on movement and disturbance of locomotion. Tenderness or pain on palpation was noted. A prior meniscal tear was noted with multiple surgeries. In terms of functional impact, the Veteran is unable to repeatedly climb stairs, prolonged walking or ladder climbing. He no longer runs. His right knee disorder causes pain and limitation. Medical treatment records from this period document the Veteran's complaints and treatment for his knee disorder. A May 2015 medical record indicates no instability and “audible popping” in the right knee. X-rays showed moderate loss of medical and lateral joint spaces. A right knee MRI in June 2015 indicated a probable horizontally oriented tear through the body of the lateral meniscus and moderate chondrosis in the moderate lateral compartment. An October 2015 medical note indicated the Veteran’s report of more catching, popping and giving out. The Veteran reported that his knee can “grab” and did not fully lock but he had to move it to release it. He reported right knee pain daily, aggravated by using stairs and getting in and out of a chair. The Veteran’s son submitted a statement in August 2014. He stated that the Veteran struggled with his knees and it has worsened over the years, that the Veteran is unable to “get up off of the couch without assistance,” and that his knees are swollen on a constant basis and sometimes “swell up to the size of grapefruits.” He stated the Veteran is always in pain and his knees “pop” causing so much pain that he almost falls over. He walks slower and takes breaks. His knees give out when he is just walking around the house. In considering the appropriate disability rating, the Board has taken into account the Veteran's statements and his son’s statements regarding his disability. While the Veteran is considered competent to report symptoms such as pain because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his left knee disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). When considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca and Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Veteran's functional losses do not equate to the criteria required for an increased rating in excess of 10 percent under Diagnostic Code 5260 or Diagnostic Code 5261 because the VA examinations have demonstrated that flexion is not limited to at least 30 degrees and extension is not limited to at least 15 degrees. In addition, there is no additional uncompensated limitation of motion that can serve as a basis to increase the current rating of 10 percent for limitation of motion. However, the evidence reflects that the Veteran's right knee disability worsened during this time period, until the Veteran was diagnosed with internal derangement of the right knee and underwent surgery on December 24, 2015. On that date, the Veteran underwent arthroscopy of the right knee with partial lateral meniscectomy, and a chondroplasty of the lateral compartment, and injection of steroids. Post-operative diagnoses were lateral meniscus tear, posterior horn, degenerative lateral meniscus tear, right knee and grade 3 primary osteoarthritis lateral compartment of the right knee and synovitis right knee. An earlier June 2015 MRI had indicated a probable meniscus tear, which was later confirmed during the December 24, 2015 surgery. As the Veteran had a confirmed lateral meniscus tear during the time period under appeal with reported episodes of “locking,” pain and effusion, the Board finds that he is entitled to a separate 20 percent, but not higher, evaluation for this period under Diagnostic Code 5258. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.71a; Diagnostic Codes 5258. (2) Entitlement to a rating in excess of 10 percent for the period of April 1, 2016 to June 22, 2016. Entitlement to a temporary 100 percent rating from December 24, 2015, to March 31, 2016 was granted by the RO based on surgical or other treatment necessitating convalescence. Thereafter, the Veteran’s disability was again rated as 10 percent disabling under Diagnostic Code 5261, effective from April 1, 2016. The Veteran was afforded a VA examination in March 2016. Diagnoses of right knee meniscal tear, chondromalacia patellae were noted. Flare-ups were noted and described as occurring throughout the day. The Veteran reported a worsening of symptoms. Functional loss included being unable to walk or climb stairs due to pain. ROM testing indicated flexion of 110 degrees and extension of 110 degrees. Pain causing functional loss was noted. Tenderness or pain was noted on palpation of the joint. Evidence of pain with flexion, extension, and on weight bearing was noted. Pain, weakness, fatigability, and lack of endurance noted to cause functional impairment. Interference with standing was noted. A reduction in muscle strength was noted. Walking and standing were noted as severely limited. Private treatment records in May 2016 reported continued problems with the right knee with limitation and difficulty with long distance ambulation. A May 2016 MRI noted a lateral meniscus tear. A unicompartmental knee replacement was recommended due to degenerative changes in the medial compartment. Once again, although there is no uncompensated limitation of motion that can provide a basis for a higher rating under DeLuca, the Board finds that the existence of removed meniscus material coupled with some symptoms not necessarily associated with the Veteran’s arthritis pain, supports a separate 10 percent rating for this period under Diagnostic Code 5259 for symptomatic, partially removed, meniscus. (b) Entitlement to a temporary 100 percent rating for partial right knee replacement from October 1, 2016 to July 23, 2017. The RO then granted entitlement to a temporary 100 percent rating for convalescence from June 23, 2016, to September 30, 2016 based on surgical or other treatment necessitating convalescence. However, in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016), the Federal Circuit held that the provisions of Code 5055 were applicable to partial knee replacements. Therefore, the Board finds that the Veteran is entitled to a 100 percent rating from October 1, 2016, through July 23, 2017, representing the balance of the one-year period of convalescence plus one month, for right knee status post partial knee replacement as permitted under Diagnostic Code 5055 and Hudgens. (c) Entitlement to a rating in excess of 30 percent for the period of July 24, 2017 to July 17, 2018. The Veteran was afforded a VA examination in February 2017, subsequent to his partial knee replacement surgery. He reported flareups with sharp bilateral knee pain, severe, 2 to 3 times per week, with a duration of 3 hours. Navigating stairs was difficult. He was unable to bear weight and reported “waking up in the middle of the night.” Range of motion testing indicated flexion of 25 to 90 degrees and extension of 90 to 25 degrees. A shortened stride affected his gait. Pain was noted on rest/non-movement and with flexion and extension, also with weight-bearing. Muscle atrophy due to the claimed condition was noted. Pain on examination additionally precluded joint stability testing. A “loose body at patellofemoral joint” was noted. Orthopedic medical records dated April 2018 indicate that the Veteran underwent partial knee replacement surgery on June 2016 with a provider referred by VA through the Choice program. The Veteran presented to the orthopedic clinic with continued painful right knee. A “complex history” was noted involving the right knee. The Veteran’s June 2016 partial knee replacement was performed by a physician through the Choice program. The Veteran reported that his physical therapy did not start for 28 days after his surgery as he was waiting for Choice insurance approval from VA. Subsequently, he developed arthrofibrosis and underwent a manipulation of his right knee under anesthesia in July 2016. Examination revealed a 30-degree flexion contracture and inability to flex to 90 degrees. The physician noted medial tenderness and generalized pain and the impression was painful unicompartmental right knee replacement with flexion contracture. The physician indicated that he did not believe non-operative care would improve this outcome, nor did he believe that manipulation under anesthesia would be successful two years post surgery. The physician recommended a revision to a total knee replacement with medial augments. June 2018 orthopedic medical records indicate that subsequent to the Veteran’s partial knee replacement in June 2016, he developed a flexion contracture of his right knee which the surgeon attributed to the fact that physical therapy did not start for over a month following his surgery due to delays in the Choice approval process. This resulted in the scheduling of a total right knee replacement in July 2018. X-rays revealed loosening and early subsidence of the tibial component of the Veteran’s partial knee replacement. Examination revealed a 30-degree flexion contracture. The Board finds that chronic residuals consisting of severe painful motion or weakness in the affected extremity caused by delayed physical therapy and failed hardware subsequent to the unsuccessful 2016 surgery entitle the Veteran to a 60 percent evaluation under Diagnostic Code 5055 for the time period of July 24, 2017, to July 17, 2018. 38 C.F.R. § 4.71a; DC 5055. (d) Entitlement to a rating in excess of 30 percent from September 2, 2019. A temporary 100 percent rating for the period of July 18, 2018, to September 1, 2019, was then granted by the RO for right knee status post total knee replacement. The Veteran was most recently afforded a VA examination in October 2019. The examiner noted continued decreased ROM and chronic pain following total knee arthroplasty. The Veteran reported increased pain on some days and buckling of his right knee. ROM was noted as 10 to 115 degrees flexion and 115 to 10 degrees extension. Pain was noted with flexion. No additional loss of function or ROM was noted on repetitive use testing. Pain and fatigue significantly limited functional ability with repeated use, including during flare-ups. The examiner noted no further ROM loss with repeated use or flareups, only increased symptoms of pain and fatigue and therefore no ROM estimate was warranted. The examiner further noted weakened movement due to muscle injury or peripheral nerves injury, disturbance of locomotion. The examiner noted that the Veteran’s quad muscles were still not as strong as needed for tolerance of ambulation and stability. The examiner noted muscle atrophy above the right knee. Objective evidence of pain on nonweight-bearing was noted. Frequent episodes of joint pain were also noted. The examiner noted residuals of total knee joint replacement in June 2016 included severe painful motion or weakness and chronic knee pain with weakened quad muscles creating a sense of weakness. Due to chronic knee pain, the Veteran reported a difficult time with prolonged standing, kneeling, and bending. Work modifications were required due to pain and decreased tolerances. The Veteran more recently testified during a hearing before the undersigned Veterans Law Judge in August 2020. He stated that he has swelling and stiffness in his knee and periods of severe pain every day. He is rarely pain free. He has difficulty bending and standing. He stated that he is a wireless cell technician but after the June 2016 surgery, his right leg would not bend or go straight and he was moved to a less physical job as a data technician. He is only able to walk short distances due to his knee buckling and when descending stairs, his entire leg starts shaking and he feels unstable. At times, he is unable to bear weight on his leg at all and on a few occasions, he had to be carried out of work and driven home. He has lost his balance and his knee buckles daily. He stated that VA discontinued physical therapy and he paid out of pocket to try to continue improvement in his knee until he could not afford to do so. He stated that VA denied his request for an extension of physical therapy. He uses a cane when he feels unstable. He stated that from the time of his first surgery in June 2016 until his total knee replacement in July 2018, he had severe pain every day. Following his partial knee replacement surgery in June 2106 his knee was at a 15-degree angle and he could not straighten it or bend it 90 degrees. He stated the pain became unbearable. He used crutches, a cane, or a walker and couldn’t bear weight on his leg, which he described as “unusable.” He testified that following the June 2016 surgery, he had to have a manipulation done because of the delay in receiving physical therapy. He described the manipulation procedure as “torture” and stated that he was “screaming in pain.” He stated that part of the hardware had “popped free” as was revealed in a subsequent X-ray. That led to a recommendation of a total knee replacement. He continues to have pain every day that varies during the course of the day from mild to moderate to severe with stiffness, swelling, and buckling. As his leg fatigues, it will shake when he’s walking or standing. While he stated the pain is different than it was between June 2016 and July 2018, it is still severe and occurs every day and he has additional pain where a rod runs down into his leg, which he describes as an aching in the bone. When the pain is bad, he just wants to sit down and be left alone. He has put on weight because he is unable to be active. A November 2020 primary care note indicates that the Veteran reported chronic ongoing bilateral knee pain that is often triggered by prolonged standing and physical activity. His knee pain is increasing symptoms of depression and anxiety. The veteran feels he is a burden to his family due to knee pain and limited physical mobility. A November 2020 psychology note reflects that the Veteran reported that he has been living with chronic pain for 20 years and over time he has become less and less able to maintain his mood and functioning. He has been withdrawing from family and recreational activities. He noted multiple surgeries on his knees. The Veteran is currently participating in a VA Coping with Chronic Pain Group. From September 2, 2019, the Veteran’s right knee disability entitles him to a 60 percent evaluation due to chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a; DC 5055. This determination is based on applicable VA law, medical evidence, the September 2019 VA examination, and the Veteran’s hearing testimony. The examiner specifically noted weakened movement due to muscle injury or peripheral nerves injury, and disturbance of locomotion. The examiner noted that the Veteran’s quad muscles not as strong as needed for tolerance of ambulation and stability. The examiner noted muscle atrophy above the right knee. Frequent episodes of joint pain were also noted. The examiner noted residuals of total knee joint replacement in June 2016 included severe painful motion or weakness and chronic knee pain with weakened quad muscles creating a sense of weakness. Objective evidence of pain on nonweight-bearing was noted. Due to chronic knee pain, the Veteran has a difficult time with prolonged standing, kneeling, bending as required for his job installing communications systems. Work modifications were required due to pain and decreased tolerances. The Veteran testified during the hearing that he has swelling and stiffness in his knee and periods of severe pain every day. He is rarely pain free. He has difficulty bending and standing. He stated that he has additional pain from a stabilizing rod/hardware that he described as aching in the bone. He is only able to walk short distances and his knee buckles on a daily basis. At times, he is unable to bear weight on his leg at all. When descending stairs, his leg shakes and he feels unstable. He uses a cane because his leg feels unstable. While the Board has considered recent changes in the criteria applicable to instability of the knee, the changes may only be applied from February 7, 2021, the effective date of the changes, and in any event, since the Veteran is now receiving the maximum rating after the convalescent period attached to his total knee replacement, the changes do not provide a basis for a higher rating. The Board has also considered whether a total disability rating based on individual unemployability (TDIU) is warranted. The Veteran is employed and there is no indication in the record that this employment is less than substantially gainful. As such, the matter of entitlement to a TDIU has not been raised by the record as part and parcel of his appeal seeking an increased initial evaluation for his service-connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.