Citation Nr: 21012515 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-22 426A DATE: March 4, 2021 ORDER Entitlement to an initial evaluation of 10 percent, but no higher, prior to September 23, 2011, for residuals of a right fibula fracture is granted. Entitlement to an initial evaluation in excess of 10 percent for residuals of a right fibula fracture based on limitation of flexion is denied. The claim for a separate 10 percent evaluation, but no higher, from July 25, 2007 to September 23, 2011, for right knee instability is granted. Entitlement to an increased 20 percent evaluation, but no higher, from September 23, 2011, forward for right knee instability is granted. Entitlement to an initial evaluation in excess of 20 percent for right knee instability from September 23, 2011, forward is denied. FINDINGS OF FACT 1. Prior to September 23, 2011, the Veteran’s residual injuries of a right fibula fracture more nearly approximated slight disability. 2. From September 23, 2011, forward, the Veteran’s residuals of a right fibula fracture manifested painful limited motion and arthritis with flexion limited to 70 degrees and full extension; without instability, subluxation, ankylosis, impairment of the tibia or fibula, removal of the semilunar cartilage, or frequent episodes of locking, dislocation, and joint pain. 3. From July 25, 2007 to September 23, 2011, the Veteran’s right knee manifested instability that is no more than slight. 4. From September 23, 2011, forward, the Veteran’s right knee manifested instability that most nearly approximates moderate than severe. CONCLUSIONS OF LAW 1. For the period prior to September 23, 2011, the criteria for an initial evaluation of 10 percent, but no higher, for residuals of a right fibula fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, Diagnostic Code 5262. 2. The criteria for an initial evaluation in excess of 10 percent for residuals of a right fibula fracture based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256-5261, 5262. 3. The criteria for a separate evaluation of 10 percent, but no higher, for right knee instability from July 25, 2007 to September 23, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 4. The criteria for an initial evaluation of 20 percent, but no higher, from September 23, 2011, forward, for right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 5. The criteria for an initial evaluation in excess of 20 percent from September 23, 2011, forward, for right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to December 1964. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2011 Travel Board hearing. A transcript of that hearing is associated with the claims file. In August 2018, the United States Court of Appeals for Veterans Claims (CAVC/Court) granted a July 2018 Joint Motion for Partial Remand (JMPR). These matters have now returned to the Board for further appellate action consistent with the CAVC Order and the additional development requested in the April 2019 and September 2020 Board remands. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, the VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Revised Criteria for Evaluating Musculoskeletal Disorders 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. In this regard, 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 agency of original jurisdiction. 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. 1. Entitlement to an Initial Evaluation of 10 Percent, but no higher, prior to September 23, 2011, for Residuals of a Right Fibula Fracture 2. Entitlement to an Initial Evaluation in Excess of 10 Percent for Residuals of a Right Fibula Fracture Based on Limitation of Flexion Service connection for residuals of a right fibula fracture was granted in the February 2008 rating decision. An initial noncompensable evaluation was assigned under Diagnostic Code 5262 from March 5, 2007 (later corrected to July 25, 2007 in an August 2010 rating decision). An April 2016 rating decision changed the Diagnostic Code from 5262, pertaining to impairment of the tibia and fibula, to Diagnostic Code 5003-5260; and, per 38 C.F.R. § 4.59, a 10 percent evaluation from September 23, 2011 based on painful motion was assigned. For the period prior to September 23, 2011 For the period prior to September 23, 2011, the Veteran’s residuals of a right fibula fracture disability is rated as noncompensable under the old version of Diagnostic Code 5262. Diagnostic Code 5262 contemplates impairment of the tibia and fibula. Under the old version of Diagnostic Code 5262, malunion of the tibia and fibula with a slight knee or ankle disability is rated as 10 percent disabling; a moderate knee or ankle disability is rated as 20 percent disabling; and a marked knee or ankle disability is rated as 30 percent disabling. A maximum 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. Under the old version of Diagnostic Code 5262, the Board finds that an initial 10 percent evaluation is warranted for the Veteran’s residuals of a right fibula fracture for the period prior to September 23, 2011. In a May 2008 statement, the Veteran reported pain, tenderness, and limited motion. A May 2009 VA treatment record noted the Veteran’s report of right calf pain while walking and while resting. The record noted a diagnosis of right calf pain with pedal pulses intact, probably osteoarthritis from the old fracture. A September 2009 VA treatment record also noted the Veteran’s report of calf pain while walking and while resting. The past medical history included osteoarthritis, but the record further indicated the treatment plan included obtaining an X-ray of the Veteran’s right tibia and fibula. A subsequent August 2010 VA treatment record noted the Veteran had an X-ray of his left knee after a fall down a flight of stairs. There is no indication, however, that the Veteran had an X-ray of his right tibia or fibula, during this period, as had been previously recommended. The evidence of record includes an October 2020 retrospective VA opinion obtained regarding the Veteran’s residuals of a right fibula fracture and right knee range of motion measurements, and reports of right knee instability and painful motion prior to September 2011. The examiner opined that the Veteran had a mild impairment based on the Veteran’s reported prolonged standing impairment. The Veteran did not have a “nonunion” of the right fibula to the knee for the period prior to September 23, 2011. In this regard, a November 2007 VA examination established the Veteran’s right fibula was previously fractured. The examination was negative for malunion, nonunion, loose motion, false joint, tenderness, drainage, edema, painful motion, weakness, redness, and heat. There was no ankylosis. The examiner noted, however, the Veteran’s complaint of constant, dull pain in his right calf, and that he cannot stand for prolonged periods of time. He denied using any medications to treat his right calf pain or using any medical devices. The Veteran was observed to have a normal, brisk gait without any functional limitations on standing or walking. He was diagnosed with an old, right fibula fracture (healed). The November 2007 VA examiner did not, however, conduct range of motion testing of the Veteran’s right knee and leg. Thus, after a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal prior to September 23, 2011, the Board finds that the Veteran’s residual injuries of a right fibula fracture more nearly approximate slight disability. Accordingly, under the old version of Diagnostic Code 5262, a 10 percent rating, but no higher, is warranted for the period prior to September 23, 2011. The Board has considered whether a higher rating would be warranted under the old version of Diagnostic Code 5262. However, there is no evidence of ankylosis, and there is no range of motion of testing of the Veteran’s right knee and leg. There is no medical evidence of nonunion. While the Veteran reported painful motion in the right calf while walking and while resting, this painful motion is compensated by the 10 percent evaluation for mild impairment under the old version of Diagnostic Code 5262. With regard to Diagnostic Code 5257, as discussed below, the Veteran is currently in receipt of a separate evaluation for right knee instability. In sum, the Veteran’s residuals of a right fibula fracture warrant an initial 10 percent evaluation for the period prior to September 23, 2011 under the old version of Diagnostic Code 5262. To this extent, the claim for an initial evaluation of 10 percent, but no higher, for the period prior to September 23, 2011, is granted. For the period from September 23, 2011, Forward From September 23, 2011, the Veteran’s residuals of right fibula fracture is rated as 10 percent disabling under Diagnostic Codes 5003-5260, as the RO determined that the symptoms associated with the service-connected residuals of a right fibula fracture were more appropriately rated under the Diagnostic Codes 5003-5260, indicating degenerative arthritis manifested by limitation of flexion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 refers to arthritis, while Diagnostic Code 5260 pertains to limitation of flexion of the knee. Under the old version of Diagnostic Code 5003, a 10 percent evaluation is assigned when limitation of motion is noncompensable for a major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under the new version of Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. It is significant to note that the Court has held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, 38 C.F.R. § 4.59 is not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016 For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). It also noted that the revisions that went into effect on February 7, 2021 did not make any substantive changes to Diagnostic Codes 5260 and 5261. The Board finds that an increased rating is not warranted for the Veteran’s residuals for a right fibula fracture for the period from September 23, 2011, forward. The Veteran manifests some limitation of motion of the right knee, but it does not most nearly approximate the criteria associated with a compensable rating under the relevant diagnostic codes. He is, therefore, in receipt of a 10 percent rating under the old version of Diagnostic Code 5003 for noncompensable limitation of motion. December 2012 X-ray evidence documents the Veteran’s right knee showed mild degenerative changes, and the Veteran was diagnosed with osteoarthritis of the right knee. The December 2012 record also documented antalgic gait, right knee flexion to 120 degrees, full extension, no effusion, moderate tibial hypertrophy, no focal tenderness, mild medial laxity, and crepitation. The Veteran’s right knee motion, however, was most restricted at a February 2014 VA examination with flexion limited to 70 degrees, with pain, and with extension to 0 degrees. The Veteran did not report flareups, and the Veteran did not experience any additional loss of motion following repetitive testing of the right knee. The examiner noted less movement than normal, disturbance of locomotion, and interference with sitting, standing, and weightbearing as additional functional loss, impairment, or limitation of the right knee. Joint stability testing was normal and there was no recurrent patellar subluxation/dislocation or meniscal conditions noted. The Veteran reported regular use of a cane to alleviate right knee pain and to provide stability. The examiner remarked that the Veteran has no muscle weakness secondary to his remote right fibula fracture, however, in cold weather and with prolonged standing or walking, the Veteran experienced a boring pain in the belly of the gastrocnemius. Flexion of the knee limited to 70 degrees is noncompensable under Diagnostic Code 5260, and full extension is noncompensable under Diagnostic Code 5261. These measurements were reported by the February 2014 VA examiner with consideration of functional impairment, particularly due to weakened movement, excess fatigability, incoordination, and pain. DeLuca, supra. They are consistent with the current 10 percent ratings for limitation of flexion under 38 C.F.R. § 4.59. Thus, an increased rating based on limitation of motion is not possible. The remaining evidence of record includes a July 2015 VA treatment record documenting flexion limited to 120 degrees, full extension, no effusion, moderate tibial hypertrophy, no focal tenderness, mild medial laxity, and crepitation. A March 2018 VA treatment record noted the Veteran’s report of daily bothersome right knee pain. X-ray evidence showed interval worsening of the osteoarthritic changes involving the medial tibiofemoral and next patellofemoral spaces. The record indicated that the Veteran was not interested in total knee arthroplasty (TKA), although it was discussed. A May 2018 VA treatment record noted the Veteran’s report of progressive worsening of his right knee pain. He reported reduced activity and that he can only walk one block. On examination, the Veteran had full range of motion with crepitation, cool effusion, and mild medial instability. A September 2018 VA treatment record noted the Veteran limps on his right leg. On examination, the Veteran’s muscle strength was 4/5, he had pain in his right knee, and he had valgus varus pain in the right knee. In a November 2019 statement, the Veteran wrote that his current symptoms included severe pain and soreness in the knee, popping, arthritis, difficulty walking up and down stairs, pain when standing for long periods, and swelling and weakness in the knee. He indicated that his strength loss caused the knee/leg to give way, and that he is unable to walk or stand in a normal manner. He reported the pain is constant. On VA examination in November 2019, the Veteran reported severe pain and weakness in his right knee. Right knee flexion was measured to 94 degrees, with full extension. The examiner noted functional loss described as impaired ability to bend, stoop, and kneel. Pain was noted on examination and caused functional loss exhibited in flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint at the lateral region of knee characterized as severe. There was evidence of pain on weight bearing, but no objective evidence of crepitus. The Veteran was unable to perform repetitive use testing with at least 3 repetitions. On examination, the Veteran reported flareups of the right knee occurring 3-4 times a week, lasting 2-3 hours. The Veteran reported right knee flareups are precipitated by cold weather and standing or walking for prolonged periods and are alleviated by resting as much as possible, icing the site, elevation, and heat. Functional loss was described as affecting daily activities, he could walk or stand for prolonged periods of time, and he had difficulty climbing stairs. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, and with flareups, due to pain, fatigue, and weakness. However, the examiner was not able to describe this in terms of range of motion. The examiner noted that the Veteran reported increased pain, fatigue, and weakness, but indicated this is subjective and it could not be determined if this is enough to alter the functional ability. Therefore, the examiner indicated that an opinion regarding the duration, frequency, and severity of decreased range of motion could not be provided without resorting to mere speculation. The examiner noted instability of station, disturbance of locomotion, and that the Veteran had a noticeable limp and unsteady gait. Muscle strength was measured as 4/5 with flexion and extension. There was no ankylosis, recurrent subluxation, or meniscal conditions noted. The examiner noted moderate lateral instability. The Veteran reported constant use of a cane for balance and support due to his right knee condition. A July 2020 X-ray showed interval worsening of osteoarthritic changes involving the medial tibiofemoral and next patellofemoral spaces. Joint effusion was decreased. The record indicated the Veteran was a candidate for TKA. A September 2020 VA treatment record indicated the Veteran declined orthopedic referral for TKA. The Veteran was afforded an October 2020 VA examination for muscle injuries. On examination, the Veteran reported pain in the right knee and use of an assistive device for arthritis. However, the examiner indicated the Veteran does not currently have a diagnosed muscle injury. On examination in October 2020 for knee and leg conditions, the examiner noted diagnoses of degenerative arthritis of the right knee, and right fibula fracture that was resolved with no current residuals. The examiner noted the Veteran’s report of worsening knee pain, weakness/giving out, and that his right knee pops often. He reported that he has to hold the hand railing while going up stairs and feels weak after exerting his knee while climbing or going down stairs. On examination, flexion was measured to 90 degrees with full extension to 0 degrees. Functional loss was described as difficulty squatting and pain on flexion. There was no evidence of pain with weightbearing. The Veteran was able to perform repetitive use testing with at least 3 repetitions. There was no additional loss of function or range of motion after 3 repetitions. The examiner noted that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time and with flareups. However, there was no additional loss of function or range of motion noted. There was objective evidence of crepitus. There was no ankylosis or history of recurrent subluxation or lateral instability noted. There was no recurrent effusion, no joint instability, and no meniscal condition noted. The examiner noted constant use of a brace and cane for arthritis. The examiner noted there was no objective evidence of pain on non-weightbearing, passive range of motion was the same as active range of motion, and pain on passive range of motion was the same as active range of motion. The examiner opined that there are no current residuals of the 1964 fracture. She indicated that this was confirmed by X-rays. She indicated that degenerative joint disease of right knee, diagnosed in 2012, is not related to old healed fibula fracture of 1964 as the right tibial fracture occurred well below the knee joint and did not involve the knee joint in any way. She stated that there was no resulting deformity of the tibia that would have caused any undue stress on the knee joint or affected the development of degenerative joint disease in the right knee. She, therefore, concluded the two conditions are completely separate and that all current symptoms are due to the knee arthritis. To the extent the examiner found that the arthritis is unrelated to the right fibula fracture does not impact this analysis as the Veteran is service-connected for this disability. In an October 2020 addendum opinion, the examiner clarified her opinion and stated the mild functional loss during flare-ups did not involve any limitation due to limitation, motion, or painful motion of the knee and/or ankle. She explained that due to the tibial stress fracture location in the mid-tibia, not near the knee joint, it is not possible for it to affect any movements of the leg. No muscle weakness was found on examination at any time, and nor would it be expected based on a tibial stress fracture. She noted the Veteran’s report of subjective pain with prolonged standing, but stated that pain itself would not affect motion of the knee or ankle, nor cause any limitation of any kind. She indicated the stress fracture itself had no impact on the muscle function itself and healed well within the normal time frame. The examiner noted her opinion was based on accepted knowledge in the medical community, that a mid tibial stress fracture that did not involve any joint, could not affect the function of that joint to cause any impact on range of motion. Thus, throughout the claims period, the Veteran’s residuals of a right fibula fracture have manifested painful and limited motion that is not compensable under the rating criteria. Right knee motion was most restricted at the February 2014 VA examination where flexion was measured, with painful motion, at 70 degrees, with full extension to 0 degrees. Flexion limited to 70 degrees is noncompensable, as is full extension. The Veteran’s limited motion of the right knee is consistent with a 10 percent evaluation for painful limited motion under the old version Diagnostic Code 5003 for arthritis. Even with consideration of functional factors, the Veteran’s residuals of right fibula fracture has not manifested limitation of motion that is compensable under the Diagnostic Codes for rating flexion and extension. As indicated in the October 2020 addendum opinion, the Veteran’s report of subjective pain with prolonged standing would not affect motion of the knee or ankle, nor cause any limitation of any kind. The Board has also considered the functional impairment associated with the Veteran’s residuals of a right fibula fracture. The Veteran has continuously reported that his condition limits his ability to stand, walk, run, or dance and manifests episodes of severe pain. See September 2011 hearing transcript. He utilizes knee braces and a cane due to arthritis. However, this type of functional impairment is contemplated by a 10 percent evaluation assigned under the old version of Diagnostic Code 5003 for painful motion resulting in functional limitations. It is also consistent with the current 10 percent ratings for limitation of flexion under 38 C.F.R. § 4.59. Thus, even with consideration of all relevant functional factors, the Board finds that the Veteran’s residuals of a right fibula fracture manifestations do not most nearly approximate limitation of motion that is contemplated by any increased rating. Separate ratings are also possible based on recurrent subluxation or lateral instability of the knee, under Diagnostic Code 5257. The Veteran is currently receiving a separate rating under Diagnostic Code 5257, as discussed more fully, below. The Board finds that there is no other schedular basis for granting a higher rating. Diagnostic Codes 5256, 5258, and 5259 provide for ratings with a showing of ankylosis, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, and removal of the semilunar cartilage. The medical evidence is entirely negative for any instances of ankylosis, or effusion into the joint. The Board, therefore, finds that higher or separate ratings under these other diagnostic codes are not appropriate. A separate rating is also possible under Diagnostic Code 5262, which provides for a rating with a showing of impairment of tibia or fibula. Under the old version of Diagnostic Code 5262, as discussed above, malunion of the tibia and fibula with a slight knee or ankle disability is rated as 10 percent disabling; a moderate knee or ankle disability is rated as 20 percent disabling; and a marked knee or ankle disability is rated as 30 percent disabling. A maximum 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. In this regard, the February 2014 VA examiner indicated the Veteran experiences pain with prolonged standing and in cold weather. The November 2019 VA examiner indicated the Veteran experiences pain with standing or sitting for prolonged periods, thus reducing his ability to run or walk for extended periods due to increased pain and stiffness. The October 2020 VA examiner indicated there are no current residuals of the right fibula fracture and that the initial fracture was a minor stress fracture that did not result in any displacement or malunion. Here, the assignment of an initial 10 percent evaluation under Diagnostic Codes 5003-5260, for the period from September 23, 2011, forward, is based on findings of painful limited motion of the right knee and leg, and is consistent with tibia and fibula impairment with slight disability. Thus, a separate rating under the old version of Diagnostic Code 5262 is not warranted. Under the new version of Diagnostic Code 5262, which applies to rating periods commencing February 7, 2021, malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, whichever results in the highest evaluation. A maximum 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. However, as discussed above, the medical evidence is entirely negative for any instances of ankylosis, or effusion into the joint. The Veteran is currently receiving a separate rating under Diagnostic Code 5257, as discussed more fully, below. Additionally, under the new version of Diagnostic Code 5262, which applies to rating periods commencing February 7, 2021, Medial tibial stress syndrome (MTSS), or shin splints, is rated as follows: A noncompensable evaluation requires treatment less than 12 consecutive months, one or both lower extremities; a 10 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities.   The medical evidence is entirely negative for any instances of MTSS, or shin splints. See February 2014 and November 2019 VA examinations. While the October 2020 VA examination indicated MTSS, or shin splints, the examiner further described the condition as stress fracture of the Veteran’s right leg. The examiner explained there were no current symptoms associated with the stress fracture of the Veteran’s right leg, as the fracture had resolved per X-rays. In sum, the Veteran’s residuals of a right fibula fracture is appropriately rated for the period from September 23, 2011, forward, as 10 percent disabling for limitation of flexion under Diagnostic Code 5260 and 38 C.F.R. § 4.59. To this extent, the claim for an initial evaluation in excess of 10 percent from September 23, 2011, forward, is denied. 3. The Claim for a Separate 10 Percent Evaluation, but no higher, from July 25, 2007 to September 23, 2011, for Right Knee Instability 4. Entitlement to an Increased 20 Percent Evaluation, but no higher, from September 23, 2011, Forward for Right Knee Instability 5. Entitlement to an Initial Evaluation in Excess of 20 Percent for Right Knee Instability from September 23, 2011, Forward Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes 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 with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). Id., Note (2). Here, the Veteran’s claim relates back to July 25, 2007. In a November 2017 Board decision, an initial separate evaluation of 10 percent was granted from September 23, 2011, forward, for the Veteran’s instability of the right knee. Later, in an April 2020 rating decision, the RO granted an increased rating of 20 percent for right knee instability effective November 8, 2019. The Board will now turn to whether an earlier effective date prior to September 23, 2011, and higher evaluations for right knee instability are warranted. The Veteran’s right knee instability ratings are assigned under Diagnostic Code 5257, pertaining to impairment of the knee based on recurrent subluxation or lateral instability. From July 25, 2007 to September 23, 2011 The Board finds that a separate 10 percent rating for right knee instability is appropriate for the period prior to September 23, 2011. On VA examination in November 2007, the Veteran denied symptoms of pain, weakness, stiffness, swelling, heat, redness, drainage, instability, giving away, locking, or abnormal motion. He denied use of medical devices. The examiner noted the Veteran had a normal, brisk gait without any functional limitations on walking or standing. However, in the October 2020 retrospective VA opinion, the examiner found there was mild impairment based on the Veteran’s reported prolonged standing impairment.   Affording the Veteran reasonable doubt, the Board finds that a separate 10 percent evaluation, but no higher, is warranted for the Veteran’s right knee instability for the period from July 25, 2007 to September 23, 2011. As there is no actual objective evidence of instability during this period to include upon physical examination by the November 2007 VA examiner, a rating higher than 10 percent is not warranted as the disability most nearly approximates slight instability. Accordingly, a separate 10 percent rating for slight instability is granted under the old version of Diagnostic Code 5257 for the period from July 25, 2007 to September 23, 2011. To this extent, the claim for an initial evaluation of 10 percent, but no higher, for the period from July 25, 2007 to September 23, 2011, is granted. From September 23, 2011, forward The Veteran is in receipt of a 10 percent evaluation for right knee instability for the period from September 23, 2011 to November 8, 2019, and a 20 percent evaluation for right knee instability from November 8, 2019, forward. The Board finds that an initial 20 percent evaluation, but no higher, for instability of the Veteran’s right knee is warranted from September 23, 2011. From September 23, 2011, forward, the Veteran has consistently reported experiencing giving way of his right knee affecting his ability to navigate stairs and requiring the use of a brace and a cane. At his September 2011 hearing, the Veteran testified that he needs to use a handrail when going up stairs to give him more stability. He testified that when walking, he experiences a weak period causing him to drop down before regaining his composure. He indicated that he was offered prescribed medication and a cane, but did not care to take pain killing capsules or use a cane.   The medical evidence of instability is less consistent, a December 2012 VA treatment record indicated the Veteran’s gait was noted to be mildly antalgic, he had mild medial laxity, and crepitation. The Veteran’s treatment plan included issuing a cane. A January 2013 VA treatment record noted a diagnosis of gait abnormality, and prescription for a cane. There was objective evidence of instability during VA physical evaluations. In February 2014, the VA examiner noted disturbance of locomotion and interference with sitting, standing, and weightbearing. The examiner noted the regular use of a cane to alleviate right knee pain and provide stability. A May 2018 VA treatment record documented crepitation and mild medial instability. An August 2018 VA treatment record documented right knee with varus deformity, medial joint line tenderness, and crepitation. September 2018 and October 2018 VA treatment records noted limping on the right leg, pain in right leg, and daily use of a cane to ambulate. A June 2019 VA treatment record noted moderate crepitation and “not significant” instability. A November 2019 VA treatment record noted right knee varus deformity, tender medial joint line, and crepitation. In a November 2019 statement, the Veteran reported popping and strength loss causing the knee/leg to give way. On VA examination in November 2019, the examiner noted objective evidence of localized tenderness or pain on palpation of the right knee, but found no objective evidence of crepitus. The examiner noted instability of station, disturbance of locomotion, and that the Veteran had a noticeable limp and unsteady gait. The examiner opined the Veteran had moderate lateral instability. The examiner indicated the Veteran had constant use of a cane for balance support due to his right knee condition. On VA examination in October 2020, the examiner noted the Veteran’s report of worsening knee pain, weakness/giving out, and that his right knee pops often. He reported that he has to hold the hand railing while going up stairs and feels weak after exerting his knee while climbing or going down stairs. The examiner found evidence of crepitus, but found no sign of instability or atrophy on examination. The examiner noted the Veteran had constant use of a brace and cane for arthritis. A subsequent October 2020 VA treatment record noted crepitation and medial joint tenderness. To the extent the examiner found no sign of instability on examination does not impact this analysis as the Veteran is service-connected for this disability. The Board finds that the lay evidence, indicating the Veteran’s functional impairment related to giving way of his right knee, and the medical evidence establishes that the Veteran’s right knee instability most nearly approximates moderate and an initial 20 percent evaluation from September 23, 2011, forward. The Veteran’s current 20 percent evaluation contemplates moderate instability and review of the evidence does not establish subluxation or instability of the right knee that most nearly approximates severe. The Veteran was provided VA examinations in February 2014, November 2019, and October 2020, and none of the examiners identified subluxation or instability that was more than moderate. The Board has considered the Veteran’s lay statements that his right knee manifests severe instability, but finds that the findings of the VA examiners (based on objective tests and medical expertise) are more probative regarding the severity of the Veteran’s service-connected right knee instability. Therefore, the record establishes that the Veteran’s right knee instability more nearly approximates the current 20 percent evaluation for moderate knee impairment, and finds an earlier effective date of September 23, 2011, for a 20 percent evaluation, for the Veteran’s right knee instability, is warranted. The Board has also considered whether a maximum 30 percent evaluation is warranted for the Veteran’s right knee instability. As noted above, VA does not define the terms “slight,” “moderate,” and “severe” in the old version of Diagnostic Code 5257. However, the Board notes that the medical providers who have characterized the severity of the Veteran’s instability, including the December 2012 and May 2018 VA physicians determined it was mild. The June 2019 VA physician indicated “not significant instability.” The November 2019 VA examiner determined it was no more than moderate. The Board has determined that the right knee instability most nearly approximates moderate based on the consistency of the Veteran’s complaints, his use of a cane, as well as the functional impairment associated with the disability. The next higher rating of 30 percent represents the maximum possible for knee instability. However, based on the medical evidence of mild to moderate instability of the Veteran’s right knee, the Board finds that his right knee instability most nearly approximate moderate and an initial 30 percent evaluation is not appropriate. Under the new version of 5257, which applies to rating periods commencing February 7, 2021, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Here, there is no evidence of surgical repair. As discussed above, the March 2018 VA record indicated that the Veteran declined TKA procedure. A June 2019 VA treatment record indicated TKA was not required at that time. A July 2020 record indicated the Veteran was a candidate for TKA. However, in a September 2020 VA treatment record, it was noted that the Veteran declined orthopedic referral for TKA. A higher 30 percent evaluation is warranted for patellar instability, 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. Here, there is no evidence of a diagnosed patellofemoral condition. See February 2014 and November 2019 VA examinations. While the October 2020 VA examination indicated recurrent patellar dislocation, the examiner further described the condition as stress fracture of the Veteran’s right leg. The examiner explained there were no current symptoms associated with the stress fracture of the Veteran’s right leg, as the fracture had resolved per X-rays. However, a 30 percent evaluation under the new version of Diagnostic Code 5257, for patellar instability, requires surgical repair. Here, there is no evidence of surgical repair. Moreover, arthroscopy does not qualify as surgical repair for patellar instability. The Board finds that a higher 30 percent evaluation is not warranted under the old version of Diagnostic Code 5257, for rating periods prior to February 7, 2021, and that a higher 30 percent evaluation is not warranted under the new version of Diagnostic Code 5257, beginning February 7, 2021, when it became effective. In conclusion, under the old version of Diagnostic Code 5257, the Veteran’s claim for an initial evaluation of 20 percent, but no higher, for right knee instability for the period from September 23, 2011, forward, is granted. To this extent, the claim for an initial evaluation in excess of 20 percent from September 23, 2011, forward, is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.