Citation Nr: 21014162 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-31 466A DATE: March 11, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee, from February 27, 2006, to January 3, 2012, is denied. Entitlement to an increased rating in excess of 10 percent for postoperative residuals of a torn meniscus, right knee, from February 27, 2006, to January 3, 2012, is denied. REMANDED Entitlement to an initial disability rating in excess of 30 percent for status post total right knee replacement, since March 1, 2013, is remanded. FINDINGS OF FACT 1. From February 27, 2006, to January 3, 2012, the Veteran’s degenerative joint disease, right knee, did not manifest as limited flexion of 60 degrees or less, but did manifest as pain with associated functional loss, to include during flare-ups and after repetitive use, which his 10 percent rating encompasses. 2. From February 27, 2006, to January 3, 2012, the Veteran’s postoperative residuals of a torn meniscus, right knee, did not manifest as moderate or severe subluxation or instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative joint disease, right knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258 through 5263 (prior to February 7, 2021). 2. The criteria for a rating in excess of 10 percent for postoperative residuals of a torn meniscus, right knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257 (prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The procedural history of this case is complicated and deserves explanation before addressing the merits of the Veteran’s claims. The Veteran served on active duty in the United States Army from August 1969 until his honorable discharge in May 1971. In February 1985, the Veteran became service connected for postoperative residuals of a torn meniscus in his right knee, and he was assigned a 10 percent initial disability rating. On February 27, 2006, the Veteran filed a claim for an increased rating for his postoperative residuals of a torn meniscus in his right knee, which was still rated as 10 percent disabling. In a May 2006 rating decision, the Baltimore, Maryland, Regional Office (RO) of the United States Department of Veterans Affairs (VA) granted service connection for right knee degenerative joint disease (right knee DJD), and it assigned a 10 percent disability rating effective February 27, 2006. In a January 2007 rating decision, the St. Louis, Missouri, RO of VA continued the Veteran’s 10 percent disability ratings for his postoperative residuals of a torn meniscus in his right knee and his right knee DJD. In March 2007, the Veteran filed a request for reconsideration of his assigned disability ratings. The RO did not treat this request as a notice of disagreement as to the January 2007 rating decision but should have. See 38 C.F.R. § 20.201 (in effect prior to March 24, 2015) (“A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement.”) Nonetheless, in an October 2018 remand order, the Board discussed why the Veteran’s March 2007 request for reconsideration should have been treated as a notice of disagreement. Consequently, the Veteran’s current claims on appeal relate back to his February 27, 2006, claim for an increased rating. The Veteran continued to file disagreements with the RO’s rating decisions between 2007 and 2011, all of which continued the Veteran’s 10 percent disability ratings for his right knee disabilities. Again, the Board observes that the Veteran’s claim never closed throughout this period because none of the rating decisions since the filing of his February 27, 2006, claim became final. See 38 C.F.R. §§ 3.156; 20.1103 (2021). In July 2011, the RO issued a rating decision continuing the Veteran’s 10 percent disability ratings for his right knee disabilities. The Veteran filed a notice of disagreement. But in January 2012, the Veteran underwent a total right knee replacement. In an October 2012 rating decision, the Baltimore, Maryland, RO assigned the Veteran a 100 percent disability rating from January 3, 2012, the date of his right-knee-replacement surgery, to February 28, 2013, the last day of the month following a one-year, 100 percent rating following implantation of his prosthesis. 38 C.F.R. §§ 4.30; 4.71a, Diagnostic Code 5055. The RO assigned a minimum 30 percent disability rating following the prosthetic replacement of the knee from March 1, 2013. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The RO chose to group the Veteran’s postoperative total knee replacement under the prior classification of the Veteran’s “residuals, torn meniscus, right knee.” The RO listed the historical ratings as, “10% from 02/14/1985; 100% from 01/03/2012; 30% from 03/01/2013.” See August 2013 Rating Decision Codesheet. This is to say, the Veteran did not receive a new service-connection rating “category” for his postoperative total knee replacement. In August 2015, the RO issued a statement of the case (SOC) continuing the respective 10 percent disability ratings for his postoperative residuals of a torn meniscus in his right knee and his right knee DJD, each prior to January 3, 2012, the date of the Veteran’s total right knee replacement. As the Veteran’s right knee had been “replaced,” it followed that he would no longer suffer from right knee DJD as of January 3, 2012. In an October 2017 rating decision, the RO discontinued the Veteran’s 10 percent evaluation for right knee DJD as of January 3, 2012, and it issued an October 2017 supplemental statement of the case (SSOC) continuing the 30 percent disability rating for the Veteran’s status post total right knee replacement. Like the Veteran’s right knee DJD, his residuals of a torn meniscus in his right knee had been subsumed by his total knee replacement, and thus, no longer existed as of January 3, 2012. The Veteran’s claims were certified to the Board in November 2017. The Veteran did not request a Board hearing in association with his appeal. In an October 2018 remand order, the Board found that the August 2015 SOC and October 2017 SSOC had only adjudicated the time period since April 5, 2010, based on the RO’s misunderstanding that finality had attached to the rating decision associated with the Veteran’s February 27, 2006, claim, which, as discussed, it had not. Thus, the Board remanded the case to the RO to readjudicate the Veteran’s claims on appeal, specifically including a review of the evidence beginning in February 2006 to the present. The RO issued a SSOC in July 2020. The case now returns to the Board. The Board finds it important to note that VA amended numerous musculoskeletal Diagnostic Codes (DCs), including, as relevant here, DCs 5003, 5010, and 5257, as of February 7, 2021. 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020). Yet, because the Veteran’s claims for an increased rating for his right knee degenerative joint disease and postoperative residuals of a torn right knee meniscus focus only on the time period from February 27, 2006, to January 3, 2012, the new DCs are not appliable as they are not retroactive. See Ervin v. Shinseki, 24 Vet. App. 318 (2011) (discussing retroactivity and effects of changes in law or regulation during the pendency of an appeal), opinion corrected, 25 Vet. App. 178 (2012). Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is “based upon facts different from the prior claim”). An increased disability rating is generally assigned based on a showing that a service-connected disability has worsened. The Board is to consider each disability in relation to the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. In addition, an adjudicator should look at evidence that preceded the filing of the claim within one year because the Veteran may be entitled to an earlier effective date if such evidence warrants an increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Regardless of whether the claim is based on an initial or increased rating, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Fenderson, 12 Vet. App. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee, from February 27, 2006, to January 3, 2012. From February 27, 2006, to January 3, 2012, the Veteran was service connected for right knee DJD. The RO rated his right knee DJD under 38 C.F.R. § 4.71a, DC 5010-5260, and assigned a 10 percent disability rating throughout that period. A hyphenated DC is used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. The hyphenated DC in this case indicates that arthritis due to trauma, DC 5010, is the service-connected disability, and the residual condition to which the arthritis is rated by analogy is limitation of flexion of the right knee, DC 5260. 38 C.F.R. § 4.71a. From February 27, 2006, to January 3, 2012, DC 5010, “Arthritis, due to trauma, substantiated by X-ray findings,” instructed adjudicators to rate the disability as degenerative arthritis. During that time, degenerative arthritis was found in 38 C.F.R. § 4.71a, DC 5003, which provided: Rating (%) Arthritis, degenerative (hypertrophic or osteoarthritis): 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 (DC 5200 etc.). 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. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. For the purpose of rating disability from arthritis, “major joints” include the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). “Minor joints” include “multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae.” Id. In reference to the limitation of motion of the knee, VA regulations provide two specific DCs, 5260 (limitation of flexion) and 5261 (limitation of extension). This does not limit the Board from considering separate ratings for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The assignment of separate ratings requires separately compensable symptomatology. See VAOPGCPREC 9-04. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. Thus, the Board may consider DCs 5256 through 5263 (all DCs associated with the knee) and any other relevant DC. Diagnostic Code 5260 provides: Rating (%) Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 Diagnostic Code 5261 provides: Rating (%) Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Petitti v. McDonald, 27 Vet. App. 415, 424 (2015). These regulations permit an adjudicator to award, where warranted, a higher disability rating than would otherwise be supported by an appliable DC. See Thompson v. McDonald, 815 F.3d 781, 785‒86 (Fed. Cir. 2016). Under section 4.40, a veteran’s disability rating may be elevated where there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of “the normal working movements of the body . . . in order to constitute functional loss”). Application of section 4.40 is limited to DCs involving limitation of motion or functional loss. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Section 4.45 expands upon the concept of functional loss, noting six factors that are important in evaluating a disability: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of “actually painful, unstable, or malaligned joints.” 38 C.F.R. § 4.59; Petitti, 27 Vet. App. at 427. Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis First, the Board addresses the relevant medical evidence of record. As to limitation of right knee flexion, a March 2006 VA medical professional recorded that the Veteran had right knee flexion between 110 and 120 degrees. The March 2006 examiner documented active forward flexion to 90 degrees without pain and passive forward flexion to 110 degrees with pain. After use, active forward flexion was measured as 80 degrees without pain and passive forward flexion to 100 degree with pain. The September 2006 examiner recorded the Veteran had right knee flexion of 0 to 80 degrees without pain, and 80 to 110 degrees with pain. The October 2009 VA examiner documented pain on active and passive flexion from 0 to 90 degrees. The March 2011 examiner documented the Veteran had right knee flexion of 0 to 120 degrees. There was objective evidence of pain with active motion and repetitive motion but no loss of range of motion after repetitive use. As to limitation of right knee extension, a March 2006 VA medical professional recorded that the Veteran had full extension. The September 2006 examiner recorded the Veteran had full extension without pain. The October 2009 VA examiner documented pain on active and passive extension from 0 to 90 degrees. The March 2011 examiner documented the Veteran’s right knee extension was normal. Absent evidence to the contrary, the Board finds the VA examiners and the other VA medical professionals mentioned above were each competent to exam and diagnose the Veteran during this appeal period. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiners’ respective examinations, medical findings, and medical opinions credible and probative. As to the lay evidence of record, the Veteran made statements to various VA examiners and medical professionals. It is clear that the Veteran experienced constant pain in his right knee during the appeal period. He also experienced stiffness, locking, and giving out at various times. He experienced periods of flare-ups one per month, for two days, on average, which resulted in increased pain and swelling. He was limited in walking, standing, bending, and kneeling. The Board notes the Veteran submitted multiple statements requesting increases as to his right knee disabilities, but his statements did not provide information about how his disabilities worsened. The Board finds the Veteran competent to report his physical sensations of pain and experiences associated with his right knee. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board finds the Veteran’s statements to the various medical professional credible and probative. For the relevant appeal period, DC 5003, as applicable here through DC 5010, permitted a 10 percent disability rating for the knee joint affected by objective limitation of motion when the limitation of motion was noncompensable under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, DCs 5010-5003 (in effect prior to February 7, 2021). As the Veteran was awarded a 10 percent disability rating under DC 5010-5260 (in effect prior to February 7, 2021) based on the factors in 38 C.F.R. §§ 4.40, 4.45, and 4.59, he was “compensated” for his limitation of motion under an appropriate DC. Thus, he is not able to be awarded a 10 percent rating under DC 5010-5003 (in effect prior to February 7, 2021). Accordingly, under DC 5010-5260, the Veteran properly received a 10 percent disability rating. The record does not show at any point that the Veteran’s flexion was limited to 30 degrees or less to warrant a higher rating. Likewise, the Veteran’s extension was always normal so a separate or higher rating is not warranted under DC 5261. In sum, his right knee DJD was compensated based on his pain and associated functional loss; otherwise, he did not meet any of the compensable rating criteria under DCs 5260 or 5261. The Veteran has reported chronic right knee pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and Mitchell, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination that would limit motion to such a degree so as to warrant a rating in excess of the 10 percent assigned during this period. In this regard, the March 2011 VA examination showed no additional limitations following repetitive motion. Further, the Veteran denied flare-ups and reported that his pain was constant. See Sharp v. Shulkin 29 Vet. App. 26 (2017). The remaining medical evidence of record does not document more restrictive motion. Again, these findings do not meet the criteria for a higher rating. Moreover, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion. The Board has also considered whether any other DC is relevant to the Veteran’s right knee DJD. The Board finds a lack of evidence during the relevant appeal period indicating or reasonably suggesting right knee ankylosis or symptoms thereof. 38 C.F.R. § 4.71a, DC 5256 (in effect prior to February 7, 2021). The Board also finds a lack of evidence during the relevant appeal period indicating or reasonably suggesting impairment of the Veteran’s tibia or fibula of the right leg, or genu recurvatum. 38 C.F.R. § 4.71a, DCs 5262 and 5263 (in effect prior to February 7, 2021). Diagnostic Codes 5258 and 5259 pertain to semilunar cartilage. DC 5258 provides a 20 percent disability rating for dislocated semilunar cartilage “with frequent episodes of ‘locking,’ pain, and effusion into the joint.” 38 C.F.R. § 4.71a, DC 5258 (in effect prior to February 7, 2021). The Board finds that the medical evidence of record does support a finding that the Veteran had a tear of semilunar cartilage to the anterior horn of the lateral meniscus with joint effusion during the appeal period. See January 2007 and July 2010 VA MRI Reports (noting meniscal tearing). Nevertheless, the evidence of record does not indicate or reasonably suggest that his semilunar cartilage was dislocated and that he experienced “frequent episodes of ‘locking,’ pain.” While the Veteran has endorsed “locking” on occasion, he has also denied experiencing locking during the appeal period various times. Reviewing the evidence as a whole, the Board finds his locking was not “frequent.” Due to the absence of dislocation and frequent locking, together, DC 5258 is not applicable. Diagnostic Code 5259 provides a 10 percent rating for symptoms associated with removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259 (in effect prior to February 7, 2021). The evidence of record indicates the Veteran underwent a medial meniscectomy in 1970 with resulting residuals for which the RO granted service connection and rated his residuals under DC 5257. “Semilunar cartilage of the knee joint” is defined as “meniscus lateralis articulationis genus” if it is external and “meniscus medialis articulationis genus” if it is internal. Dorland’s Illustrated Medical Dictionary 304 (31st ed. 2007). Thus, his medial meniscectomy and residuals fall within DC 5259. Nonetheless, the Board finds the Veteran’s symptomatic residuals associated with his medical meniscectomy have properly been accounted for within his ratings under DC 5010-5260 and 5257. His rating under DC 5010-5260 accounts for symptoms of pain, diminished excursion, strength, speed, coordination, and endurance, fatigability, swelling, effects of standing and weight-bearing, to include during flare-ups and after repetitive use. As will be discussed below, DC 5257 accounts for the Veteran’s symptoms of subluxation, instability, laxity, and use of assistive devices, such as a cane and a brace. To this extent, the Board finds the Veteran’s medical meniscectomy symptomatic residuals are all accounted for, and to provide him a rating under DC 5259 would constitute pyramiding. 38 C.F.R. § 4.14. Moreover, there would be no benefit to the Veteran to change his current rating from DC 5257 to DC 5259 because the highest rating under DC 5259 is 10 percent, whereas the highest rating under DC 5257 is 30 percent. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative joint disease of the right knee. In denying a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating in excess of 10 percent for postoperative residuals of a torn meniscus, right knee, from February 27, 2006, to January 3, 2012. From February 27, 2006, to January 3, 2012, the Veteran was service connected for postoperative residuals of a torn meniscus in his right knee (right knee residuals). The RO rated his right knee residuals under 38 C.F.R. § 4.71a, DC 5257, and assigned a 10 percent disability rating throughout that period. From February 27, 2006, to January 3, 2012, DC 5257 provided as follows: Rating (%) Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 VA regulations did not define the terms “slight,” “moderate,” or “severe.” Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805–06 (Fed. Cir. 2010). “Slight,” as an adjective, is defined as “small of its kind or in amount.” Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Feb. 7, 2021). “Moderate,” as an adjective, is defined as “not violent, severe, or intense”; “limited in scope or effect.” Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Feb. 7, 2021). “Severe,” as an adjective, is defined as “causing discomfort or hardship”; “very painful or harmful”; “of a great degree.” Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Feb. 7, 2021). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. It should also be noted that use of terminology such as “slight,” “moderate,” and “severe” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under DC 5257. See English v. Wilkie, 30 Vet. App. 347, 353 (2018) (“[N]othing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence . . .. ‘[I]t certainly does not, by its terms, restrict evidence to “objective” evidence.’” (quoting Petitti, 27 Vet. App. at 427). In addition, the Board must consider the factors discussed within 38 C.F.R. §§ 4.40, 4.45, and 4.59, as previously discussed above, to determine if they are properly accounted for within the applicable DC criteria. Analysis The Board first addresses the medical evidence of record relevant to this appeal period. A March 2006 VA physician recorded the Veteran’s knee was “stable” with mild tenderness. No effusion was present. Based on X-ray imaging, the physician found the Veteran had significant narrowing of the “medial compartment of the right knee with standing.” The Veteran was afforded two VA examinations in 2006, one in March and another in September. During the March 2006 VA examination, the Veteran reported constant pain in his right knee, which worsened when walking. He had severe stiffness after sitting and in the morning. His right knee felt weak, which resulted in a lack of endurance. He had episodes of “giving way” but no locking. He experienced periods of flare-ups once per month, for two days, on average. He used a knee brace during his work as a brick layer and a cane during flare-ups. The examiner found manipulation of the right knee joint caused pain. There was severe crepitation, which suggested fluid accumulation. There was no evidence of muscle loss. During the September 2006 VA examination, the Veteran reported pain in his knee daily. He used a knee brace when necessary. He experienced flare-ups one to two times a month, lasting one to two days, which resulted in increased pain and swelling. He was taking prescribed medications for his pain. The examiner documented pain but not instability. A January 2007 MRI document recorded that the Veteran reported his right knee began to “lock” on him. The MRI revealed the quadriceps and patellar tendon were normal. The medial and lateral collateral ligaments were intact. There was small joint effusion. A cyst was found adjacent to the fibular head. There was a loss of cartilage. A tear was located on the anterior horn lateral meniscus extending to inferior articular surface. In January 2008, the Veteran was afforded a VA examination as to his joints. During the examination, the Veteran reported he had a lack of endurance, fatiguability, pain, stiffness, and a loss of range of motion in connection with his knees. He had intermittent daily pain and swelling. He did not walk or stand for over 15 minutes due to knee pain. He used a right knee brace for “heavy jobs.” He experienced locking of his right knee when he worked, but he had not had an episode in two to three months because he was not working. The Veteran’s knees were found to be stable by the examiner. The Veteran was afforded a VA examination in October 2009. The Veteran reported his knees gave out on occasion. His pain was aggravated by walking longer than 15 minutes or from a quarter to a half of a mile and standing. He used a right knee brace on occasion but was otherwise ambulatory. He experienced flare-ups on overexertion or with repetitive bending and kneeling. There was no laxity, instability, or sensory loss found the examiner. In a June 2010 VA chiropractic consult note, the Veteran reported that his right knee was hurting worse and the pain was “different.” He explained that he was not able to straighten it and he had sharp pain under his patella and to the medial side. He received an MRI in July 2010. The physician found his right knee was without contrast. The anterior and posterior cruciate ligaments were intact. The medical meniscus was very small in size and was torn throughout. The Veteran’s patella was “bipartite” (in two parts rather than one). The Veteran had moderate joint effusion. The Veteran was afforded a VA examination in March 2011. As to his right knee, the examiner documented that the Veteran did not experience deformity, instability, incoordination, episodes of dislocation or subluxation, locking or effusion. He did experience giving way, pain, stiffness, weakness, swelling, tenderness, and decreased speed of joint motion. The Veteran’s pain was chronic and constant. The Veteran reported he was only able to stand for 15 to 30 minutes and unable to walk more than a mile. He used an orthotic insert and a brace constantly. Crepitation and grinding were present on examination. X-ray results showed no contrast. His anterior and posterior cruciate ligaments were intact. The medial meniscus was small in size and torn throughout. The lateral meniscus was intact. The patella was bipartite and there was moderate joint effusion. Thereafter, the Veteran underwent total right knee replacement on January 3, 2012. Absent evidence to the contrary, the Board finds the VA examiners as well as the VA medical professionals mentioned above were each competent to exam and diagnose the Veteran during this appeal period. Cox, 20 Vet. App. at 569. The Board finds the examiners’ respective examinations, medical findings, and medical opinions credible and probative. As to the lay evidence of record, other than that documented in the medical records above, the Board did not locate any additional relevant evidence. The Board notes the Veteran submitted multiple statements requesting increases as to his right knee disabilities, but his statements did not provide information about how his disabilities worsened. The Board finds the Veteran competent to report his physical sensations of pain and experiences associated with his knee. Jandreau, 493 F.3d at 1377. The Board finds the Veteran’s statements to the various medical professional credible and probative. To begin, the Board observes the Veteran’s rating under 38 C.F.R. § 4.71a, DC 5257 is “protected.” Section 3.951(b) of Title 38 provides, “A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.” The Veteran’s right knee disability for residuals of torn meniscus have been continuously rated under DC 5257 since 1985. As of February 27, 2006, the Veteran’s rating was protected. Based on the evidence as a whole, the Board finds the Veteran’s right knee residuals did not manifest as “moderate” recurrent subluxation or lateral instability. The medical evidence does not indicate that the Veteran suffered from subluxation or lateral instability of the right knee that was more than “slight” throughout the appeal period. A March 2006 VA medical professional found the Veteran’s right knee was “stable.” The September 2006 VA examiner documented no instability. The January 2008 VA examiner noted the Veteran’s right knee was “stable.” The October 2009 VA examiner documented the absence of laxity and instability in the Veteran’s right knee. The March 2011 VA examiner found that the Veteran did not experience deformity, instability, or episodes of dislocation or subluxation. Notably, the Veteran never described his right knee symptoms to include dislocation, instability, laxity, subluxation, or similar descriptive terms. Nevertheless, the Veteran described one of his symptoms as a feeling as if his knee was “giving out.” While this phrase is vague, the Board provides the Veteran the benefit of the doubt and interprets his description as related to subluxation or instability. In addition, he occasionally used a knee brace throughout this period, which indicates to the Board some degree of related symptoms of knee instability, but, perhaps, not ones that meet a medical definition of instability or subluxation. Viewing the evidence as a whole, the Board provides the Veteran of the benefit of the doubt and finds his right knee residuals “slightly” manifested as recurrent subluxation or instability. But the weight of the evidence is against finding that his right knee residuals manifested a “moderate” recurrent subluxation or instability, the criteria for a 20 percent disability rating. The Board has considered the application of the factors within 38 C.F.R. §§ 4.40, 4.45, and 4.59 in connection with DC 5257. The Board finds these factors, to include pain and associated functional loss, are adequately accounted for when rating the Veteran’s right knee DJD. To afford him the benefit applying these regulations a second time in the context of DC 5257 would constitute pyramiding. 38 C.F.R. § 4.14. Accordingly, the Board finds the Veteran’s right knee residuals manifested as no more than slight subluxation or instability due to related symptomatology. They did not manifest as moderate or severe subluxation or instability throughout the relevant appeal period. Therefore, the Veteran is not entitled to an increased rating in excess of 10 percent for his for postoperative right knee residuals of a torn meniscus from February 27, 2006, to January 3, 2012. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 30 percent for status post total right knee replacement, since March 1, 2013, is remanded. Following the Veteran’s total right knee replacement on January 3, 2012, the RO assigned the Veteran a 30 percent disability rating, the minimum rating. 38 C.F.R. § 4.71a, DC 5055 (2012). The Board observes the criteria of DC 5055 was amended, effective February 7, 2021. 85 Fed. Reg. 76,460 (Nov. 30, 2020). As such, in order to afford him all due process and avoid prejudice to the Veteran, the RO must consider whether a higher rating is available under the new criteria as of the effective date. Moreover, the Veteran was last afforded a VA examination as to his right knee symptoms status post total right knee replacement in September 2017. In the October 2020 appellate brief, the Veteran’s representative asserted that the Veteran’s right knee symptoms status post total knee replacement have worsened since the initial rating in 2012 and since the September 2017 VA examination. He further asserts the September 2017 is an outdated examination on which to evaluate the Veteran’s current right knee status post total knee replacement. The Board agrees. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) (“Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition.”). Accordingly, the Veteran should be afforded a new VA examination to address the current severity of his right knee disability. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. Provide the Veteran with the proper notice that he may submit relevant evidence associated with the status of his current right knee disability status post total knee replacement. 3. After any additional relevant records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician to provide an opinion as to the status of the Veteran’s current right knee disability status post total knee replacement. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner must report all signs and symptoms necessary to evaluate the Veteran’s current right knee disability status post total knee replacement under the appropriate rating criteria. In particular, the examiner must provide range-of-motion test results (in degrees) as to the joint affected and of the opposite, undamaged joint, if possible, on (i) active motion, (ii) passive motion, (ii) weight-bearing, and (iv) non-weight-bearing. If the examiner cannot assess the motion of the opposite, undamaged joint, the examiner must explain why the assessment is not possible. In addition, the examiner is asked to opine whether the Veteran experiences functional impairment of the affected joint due to pain. If the Veteran does experience pain during regular diagnostic testing, the examiner must (i) clearly indicate the exact degree of movement at which pain limits motion in the affected joint and (ii) include the findings of at least three repetitions of range-of-motion testing. If there is no pain and/or no limitation of function, such facts must be noted in the report. In addition, the examiner is asked to give an opinion on whether pain could significantly limit functional ability during (i) flare-ups and (ii) with repeated use over a period of time. If there is functional impairment found during flare-ups or with repeated use over a period of time due to pain, the examiner must provide, if feasible, the degree of additional limitation of motion. If the Veteran reports experiencing flare-ups and the examination does not take place during a flare-up, the examiner must obtain information from the Veteran, medical records, and any other reasonably available source regarding the severity, frequency, duration, and functional loss manifestations associated with such flare-ups. Efforts to obtain such information should be documented. The examiner is reminded to consider the Veteran’s lay statements as he is competent to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for any opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner must identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.