Citation Nr: 21012430 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-02 396 DATE: March 4, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis is denied. Effective March 5, 2010, entitlement to an initial, separate 20 percent disability rating for right knee osteoarthritis with a diffusely macerated meniscus and cartilage loss is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran’s right knee flexion has been limited to no more than 50 degrees and his right knee extension has been limited to no more than 10 degrees. 3. The Veteran has a diffusely macerated meniscus and cartilage loss of the right knee with frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260, 5261. 3. Effective March 5, 2010, the criteria for entitlement to a separate 20 percent disability rating for right knee osteoarthritis with a diffusely macerated meniscus and cartilage loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. An April 2011 rating decision granted service connection for right knee osteoarthritis and assigned a 10 percent disability rating. A June 2011 rating decision granted service connection for PTSD and assigned a 30 percent disability rating. A November 2013 rating decision assigned a separate 10 percent disability rating for right knee instability and also assigned an increased 50 percent disability rating for PTSD. All disability ratings were given March 5, 2010 effective dates. In November 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Veteran’s claims for increased ratings were remanded the Board in May 2018. Since that time, an August 2020 rating decision assigned the Veteran’s service-connected PTSD a 70 percent disability rating, effective March 5, 2010. Because this rating decision was not a full grant of the benefits sought, the matter remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was remanded by the Board in May 2018. The August 2020 rating decision also granted entitlement to a TDIU rating, effective April 11, 2014, the day following the Veteran’s last day of work. See VA Form 21-8690, dated August 9, 2018; VA Form 21-4192, received in May 2020. As this is a full grant of the benefit sought, this issue is no longer before the Board. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102.   Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.  Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126.   A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).   1. Entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. The Veteran maintains that the severity of his service-connected PTSD requires a higher disability rating. For the reasons discussed below, the Board finds that the evidence demonstrates the Veteran’s PTSD does not warrant a disability rating in excess of 70 percent. The Veteran’s service-connected PTSD has been rated as 70 percent disabling for the entire appellate period under 38 C.F.R. § 4.130, Diagnostic Code 9411. Almost all mental health disorders, including PTSD, are evaluated under the General Rating Formula for Mental Disorders (Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 70 percent disability rating requires: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent disability rating requires: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the revised (post-1996) Rating Formula. See id. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors. See Vazquez-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow “a veteran whose symptoms correspond[ed] exactly to a 30 percent rating” to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make “an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas”). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. To evaluate the severity of the Veteran’s PTSD, he was afforded a May 2011 Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The examination report states that while the Veteran experiences panic attacks when confined, with a combination of medication and supportive therapy and relaxation techniques, he manages his anxiety. He also experiences occasional feelings of depression, but has maintained stable employment for 15 years and has not missed more than two workdays per year because of low mood. In particular, he has worked as a Director of Engineering at the New England Center for Homeless Veterans in Boston. He has two significant relationships with male companions and has a relationship with his son. He reports that he has anxiety and claustrophobia. The May 2011 examination report states that the Veteran appeared clean, neatly groomed, and appropriately dressed for the examination. His psychomotor activity was unremarkable, his speech was clear and coherent, affect normal, mood happy, attention intact, and he was oriented to person, time, and place. His thought process and content was unremarkable, and he did not have delusions. He understood the outcome of his behavior and his intelligence was average. He has sleep impairment and daily panic attacks. He does not have inappropriate behavior, obsessive or ritualistic behavior, or homicidal or suicidal thoughts. He does not have episodes of violence, but has become angry and broke a lamp in his office. He has the ability to maintain minimum personal hygiene and his memory is normal. The May 2011 examination report provides that the Veteran’s PTSD symptoms are recurrent and intrusive distressing recollections of the event including images thoughts or perceptions, recurrent distressing dreams of the event, intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran also has efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma, feelings of detachment or estrangement from others. The Veteran has difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. The May 2011 examination report demonstrates that the Veteran does not have total occupational and social impairment due to his PTSD signs and symptoms. The Veteran’s PTSD signs and symptoms cause intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. The Veteran was also afforded a Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire in March 2020. Concerning occupational and social impairment, the Veteran’s PTSD causes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran is not in a relationship and his symptoms of irritability, avoidance, anxiety, depressed mood, insomnia, hypervigilance, and poor concentration, and memory cause problems in his interpersonal and social functioning according to the examination report. He is too short with others over little issues and he has lost interest in formerly enjoyable activities like socializing. He has lost friendships due to his social avoidance and emotional withdrawal. He retired from his job in 2014 and he reported he performed well and did not have issues in comportment or attendance. The March 2020 examination report provides that the Veteran has low energy and focus due to lack of sleep. He is forgetful of recent events and conversations. He sleeps about 4 to 5 hours of broken sleep per night and he has nightmares several times per month. The Veteran is avoidant of enclosed spaces and he reported that his symptoms of depression and anxiety have increased due to his physical limitations and pain, resulting in an increased sense of vulnerability. He is neglectful of self-care and hygiene, reporting that his pain and poor motivation limit his showering to once a week. The March 2020 examination report indicates that the Veteran has not been hospitalized for psychiatric reasons and he denied a history of suicide attempts since the last evaluation. The Veteran has symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. During the March 2020 examination, he was alert and oriented to person, place and time. His thinking was logical and goal-oriented, and his speech was fluent and of normal rate and volume. The Veteran’s auditory comprehension was within normal limits. He presented as casually dressed, casually groomed, polite, cooperative and engaged. His mood was dysphoric, and his affect was full ranging and congruent with mood. He exhibited no signs of hallucinations or delusions and he denied suicidal and homicidal ideation. The examiner determined that the Veteran is a low immediate risk of harm to self or others based on information from this evaluation. The Veteran’s VA treatment records also demonstrate the severity of his PTSD. He engaged in individual psychotherapy according to his treatment records. A May 2011 VA Telephone Encounter Note states that the Veteran has recurrent and intrusive distressing recollections of the traumatic event, recurrent distressing dreams of the traumatic event, intense psychological distress with triggered recall as riding in enclosed public transportation often triggers panic attacks; avoidance of thoughts, feelings, conversations, activities, places, or people that arouse recollections, feelings of detachment or estrangement from others, difficulty falling or staying asleep, and irritability or outbursts of anger, and difficulty concentrating. The Veteran’s VA treatment records show that the Veteran reported nightmares, difficulty sleeping, excessive sleep, avoidance of enclosed public spaces, low energy and apathy, and anhedonia. The Veteran did not report suicidal or homicidal thoughts or other violent thoughts or actions. He reported maintaining contact with his children. During the November 2016 hearing, the Veteran stated that he experiences difficulty sleeping, isolates, and avoids confined public spaces. The Board notes the Veteran is competent to report his mental health symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also 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); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting his mental health symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Based on the above evidence, the Board finds that a disability rating in excess of 70 percent is not warranted for the Veteran’s PTSD as his symptoms did not cause total occupational and social impairment. In particular, the Veteran maintained stable employment for 15 years and did not miss more than two workdays per year because of low mood. He did not report issues with comportment or attendance prior to his retirement in 2014. Further, the March 2011 examination report states that the Veteran has two significant relationships with male companions and has a relationship with his son and his VA treatment records show that he reported maintaining relationships with his children. Additionally, the Veteran’s PTSD did not manifest in symptoms such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. While the March 2020 examination report states that the Veteran has neglect of personal appearance and hygiene, there is no indication that this caused total occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 116. In sum, the preponderance of the evidence does not support a finding of total occupational and social impairment or symptoms equivalent severity, frequency or duration to the symptoms corresponding to a 100 percent disability rating as a result of his service-connected PTSD, the preponderance of the evidence weighs against entitlement to a disability rating in excess of 70 percent. Thus, a disability rating in excess of 70 percent for the Veteran’s service-connected PTSD is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App.at 55-57.   2. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis is denied. 3. Effective March 5, 2010, entitlement to an initial, separate 20 percent disability rating for right knee osteoarthritis with a diffusely macerated meniscus and cartilage loss is granted. The Veteran states that his right knee disabilities warrant increased disability ratings. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).   The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40).   Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354.   In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for 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.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.   At the outset, the Veteran’s right knee osteoarthritis has been rated under Diagnostic Code 5003 by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 4.27, 4.71a; June 2011 Rating Decision. The Veteran’s current 10 percent disability rating for right knee osteoarthritis was awarded pursuant to 38 C.F.R. § 4.59 and Burton, 25 Vet. App. at 3-5, which together hold that joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint, even if arthritis is not present. Moreover, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Therefore, as flexion and extension measurements of the Veteran’s right knee did not meet the criteria for even a noncompensable rating at the time the initial rating was assigned, the Veteran was assigned the minimum 10 percent disability ratings for his right knee under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, DCs 5260 and 5261. Diagnostic Codes relevant to knee disabilities include 5003, 5010, and 5256 through 5263. Arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joints. As discussed above, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The diagnostic codes pertaining to range of motion of the knee are Diagnostic Codes 5260 for flexion of the knee and 5261 for extension of the knee. 38 C.F.R. § 4.71a. A noncompensable rating under Diagnostic Code 5260 requires flexion limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. A noncompensable rating is warranted under Diagnostic Code 5261 when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and the highest available 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71, Plate II. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a , Plate II. VA’s Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding set forth in 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Moreover, VAOPGCPREC 23-97 held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). For a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998).   The Veteran has been afforded two examinations to evaluate the nature and severity of his right knee disabilities. In particular, the Veteran was provided with a March 2011 Joints Examination. The Veteran reported that he was not experiencing right knee pain at the time of the examination, but his knee pain can increase to an 8 out of 10 when he is ascending stairs and that his pain worsens during cold weather. He advised of weakness and reduced range of motion. The Veteran also reported stiffness after sitting for more than 30 minutes. The Veteran has trouble tying his shoes due to an inability to flex his knee sufficiently to bring his foot within the reach of his hands. He does not use a cane specifically for his knee. On examination in March 2011, the Veteran’s gait was mildly right antalgic. He had extension to 0 degrees and flexion to 100 degrees on active motion and slightly more on passive motion. He had patellofemoral crepitus fine and coarse throughout his entire range of motion passively. The Veteran’s knee was stable to varus and valgus stresses at 0 degrees and at 30 degrees it has a jog of both lateral and medial opening to varus and valgus stresses. The Lachman’s test was equivocal, but there was a real “clunk” when the anterior stress on the tibia was relieved. X-rays showed marked degenerative changes and there was extensive heterotopic ossification in the soft tissues medially. The Veteran was also provided with a March 2020 Knee and Lower Leg Conditions Disability Benefits Questionnaire. The Veteran’s medical history was described as a history of bilateral knee arthritis with no surgical intervention. He had had Synvisc injections in 2005 and 2018. Currently, the Veteran has he has sharp and shooting right knee pain and right peripatellar pain, occasional effusion and swelling, and occasional giving way of his knees. Concerning functional loss, the Veteran has increased pain with repetitive motion, has had numerous falls, and his pain is not significantly more limiting than at baseline. The Veteran reported difficulty walking long distances and walking without pain and frequent giving out of his knee, getting in and out of a motor vehicle, ascending stairs, and an inability to climb ladders, sit for long periods of time without pain, kneel, bend over to lift items without pain. The March 2020 examination report states that the Veteran’s pain is fairly consistent, but approximately one to two times per month, he will have flare-up of increased pain that lasts a few days and can be caused by weather changes and sleeping in a poor position. Rest alleviates the Veteran’s flare-ups. During a flare-up, the Veteran is able to walk, but is slower. He reports that flare-ups do not cause additional loss of range of motion. The March 2020 examination report provides that on initial range of motion testing, the Veteran had flexion to 50 degrees and extension to 10 degrees. Range of motion itself contributed to functional loss as he has difficulty with activities that involve range of motion of his knee, including kneeling down and ascending stairs. The Veteran had pain on flexion and extension that causes functional loss. The Veteran also had diffuse knee tenderness and objective evidence of crepitus. He was able to perform repetitive use testing with at least three repetitions and that was not additional functional loss or range of motion. The March 2020 examination report demonstrates that pain, weakness, fatigability, and incoordination do not significantly limit the Veteran with repeated use over a period of time or with flare-ups. The Veteran has less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference standing as additional factors contributing to his disability. Muscle strength testing was normal on flexion and extension. There was no ankylosis or history of recurrent subluxation. According to the examination report, the Veteran has a history of slight lateral instability and joint stability testing revealed that the Veteran had right knee medial instability 1+ (0-5 millimeters) and lateral instability at 1+ (0-5 millimeters). He also has recurrent effusion. The Veteran has a meniscus condition with frequent episodes of joint “locking,” pain, and effusion. He uses a walker constantly as an assistive device because of his knee pain. The March 2020 examiner stated that pain due to repetitive motion or flare-ups were not directly observed during the examination. A review of the Veteran’s treatment records does not show any specific reference to treatment for flare-ups or limitations due to flare-ups or repetitive motion that would aid in the determination of estimates of range of motion limitation due to flareups or repetitive use. After examining the Veteran, interviewing him about his complaints and reviewing available records, there is no basis to determine additional range of motion loss due to flare-ups or repetitive motion. Further, the Veteran reported that he does not believe his range of motion is worse during flare-ups per the examination report. There is no difference in range of motion in either active, passive range of motion, weight bearing or non-weight bearing, due to pain. The Veteran’s VA treatment records reveal that the Veteran consistently reported chronic right knee pain. In particular, the Veteran rated his right knee pain as 10 out of 10 in May 2017 and 9 out of 10 in May 2018, November 2018, and August 2019. He had a right knee Synvisc injection in March 2018. The Veteran also complained that his knee pain worsened to the point of waking him at night. He participated in physical therapy and aquatic therapy and uses a can and brace for ambulation. His VA treatment records demonstrate that he fell on several occasions. His right knee showed swelling, subpatellar crepitus, tenderness, laxity with valgus and varus testing. At worst, the Veteran’s flexion was measured at 90 degrees and his extension was measured at 5 degrees. An MRI in May 2011 showed that the meniscus was diffusely macerated, moderate joint effusion, likely torn cruciate ligaments, and sequelae from severe tricompartmental osteoarthritis including bone-on-bone joint space narrowing of the femorotibial compartment with severe cartilage loss, bony remodeling and osteophyte formation, mild medial translation of the femur on the tibia, grade 2 to 3 cartilage loss of the patellofemoral cartilage with diffuse cartilage heterogeneity, and numerous loose bodies within the medial inferior parameniscal recess. During the November 2016 hearing, the Veteran stated that he has constant knee pain. He advised that he cannot walk without a cane, he cannot sit for long periods of time due to numbness. He has trouble descending stairs and is unable to walk to uneven surfaces. He can walk for 10 minutes or 100 feet. The Board notes the Veteran is competent to report experiencing right knee symptomatology, as the onset, frequency, and duration of his pain and numbness, which are certainly capable of lay observation. See Barr, 21 Vet. App. at 307-08; see also Jandreau, 492 F.3d 1372; Davidson, 581 F.3d 1313; see also Layno, 6 Vet. App. at 470 (1994); Young, 766 F.3d at 1353. Additionally, the Board finds that the Veteran is credible in reporting his right knee symptomatology. See Caluza, 7 Vet. App. at 711, aff’d, 78 F.3d 604. The evidence demonstrates that the Veteran’s right knee osteoarthritis warrants no more than a 10 percent disability rating for limitation of extension under DC 5261. Per the March 2020 examination report, the Veteran’s range of motion for his right knee extension is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. At no point during the appeal was the Veteran’s right knee extension limited to 15 degrees, satisfying the criteria for a 20 percent disability rating. Id. With regard to functional loss, as cited above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. The Board has considered the competent and credible lay evidence from the Veteran when considering functional loss. However, an increased evaluation beyond the 10 percent disability rating for limitation of extension of the right knee is not warranted, on the basis of functional loss due to pain, stiffness, swelling, tenderness, and other functional loss as described above. The March 2020 examination report provides that pain, weakness, fatigability, and incoordination do not significantly limit the Veteran with repeated use over a period of time or with flare-ups and he advised that flare-ups do not cause additional loss of range of motion. The Veteran’s symptoms are supported by pathology consistent with the assigned rating. At worst, the Veteran’s right knee flexion has been measured at 50 degrees which does not meet the criteria for a 10 percent disability rating under DC 5260. See March 2020 Knee and Lower Leg Conditions Disability Benefits Questionnaire. At no point during the appeal was the Veteran’s right knee flexion limited to 45 degrees, satisfying the criteria for a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. And to assign a separate 10 percent rating for painful flexion of the knee would amount to pyramiding, as the Veteran’s knee pain is contemplated under DC 5261, as well as DC 5258 (as discussed in more detail below). See 38 C.F.R. § 4.14. The preponderance of the evidence weighs against a disability rating higher than 10 percent for the Veteran’s right knee osteoarthritis. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating higher than 10 percent for the Veteran’s right knee osteoarthritis under Diagnostic Codes 5003, 5260, and/or 5261 is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55-57. However, a separate 20 percent rating is warranted for the Veteran’s right knee disorder under DC 5258. Diagnostic Code 5258 provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. An MRI in May 2011 showed that the meniscus was diffusely macerated, moderate joint effusion, sequelae from severe tricompartmental osteoarthritis including severe cartilage loss and grade 2 to 3 cartilage loss of the patellofemoral cartilage with diffuse cartilage heterogeneity. Further, the March 2020 VA examiner stated that the Veteran had a meniscus condition with frequent episodes of joint “locking,” pain, and effusion. As such, a separate 20 percent rating is warranted for the Veteran’s right knee disorder under DC 5258, effective March 5, 2010. A 20 percent rating is the maximum rating available under DC 5258. The Board has considered the applicability of Diagnostic Codes 5256, 5259, 5262, and 5263. The Board finds that the remaining diagnostic codes are inapplicable to the Veteran’s right knee. Of note, the evidence does not indicate that the Veteran experiences ankylosis, removal of semilunar cartilage, symptomatic, tibia and fibula impairment, or genu recurvatum. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5257, which pertains to other knee impairment based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent disability rating is warranted for moderate disability, and a maximum 30 percent disability rating is warranted for severe disability. 38 C.F.R. § 4.71a; see also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that Diagnostic Code 5257 is not predicated on loss of range of motion). The Board notes that VA amended the criteria for rating the knee under Diagnostic Code 5257 effective from February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The new rating criteria may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the new rating criteria, a 30 percent rating is assigned for recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes 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. For patellar instability, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Here, a March 2011 VA treatment note showed that the Veteran was provided a new brace and cane. Treatment records dated through November 2018 showed that he used cane and a brace for ambulation. An MRI of the Veteran’s right knee in May 2011 showed that the cruciate ligaments were poorly visualized and “likely torn.” As the evidence of record suggests that the Veteran’s right knee cruciate ligaments are likely torn, an additional VA examination is required to obtain sufficient information to rate the Veteran’s knee in accordance with the new rating criteria. Accordingly, the case is REMANDED for the following action: 1. Add to the claims file any outstanding VA treatment records dated since May 2017. 2. Arrange for a VA examination of the Veteran's right knee. In the examination report, the examiner must address the following: Whether the right knee is manifested by recurrent subluxation or lateral instability with: (i) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or (ii) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (Continued on the next page)   Whether the right knee is manifested by patellar instability with (i) 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; or (ii) 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. • In providing this information, the examiner should consider the March 2011 VA treatment note showing that the Veteran was provided a new brace and cane, VA treatment records dated through November 2018 showing that he used cane and a brace for ambulation, and the MRI of the Veteran’s right knee in May 2011 showing that the cruciate ligaments were poorly visualized and “likely torn. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.