Citation Nr: 21014685 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-38 071A DATE: March 15, 2021 ORDER Prior to September 18, 2015, entitlement to an evaluation in excess of 20 percent for service-connected fracture of the right clavicle, SLAP lesion repair (major), is denied. For the period of September 18, 2015, to January 6, 2019, entitlement to an evaluation in excess of 30 percent for service-connected fracture of the right clavicle, SLAP lesion repair (major), with degenerative joint disease, supraspinatus tear and tendonitis, is denied. The previous evaluations of the service-connected left knee internal derangement (ligament tear) under Diagnostic Code 5010-5257 are reinstated; the separate evaluation under Diagnostic Code 5258 effective February 9, 2011 remains undisturbed. See page 12 below. For the period of January 13, 2016, to February 24, 2016, entitlement to an evaluation of 20 percent for service-connected left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, under Diagnostic Code 5010-5257 is granted. Entitlement to evaluations in excess of 10 percent prior to January 13, 2016, and in excess of 20 percent, effective January 13, 2016 and throughout the remainder of the appeal period, for service-connected left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, under Diagnostic Code 5010-5257 is denied. For the period of time on appeal prior to January 13, 2016, entitlement to a compensable evaluation under Diagnostic Code 5003-5260 for painful/limited motion due to service-connected left knee torn ligament is denied. FINDINGS OF FACT 1. Prior to September 18, 2015, the Veteran’s service-connected fracture of the right clavicle, SLAP lesion repair (major), was manifested by limitation of abduction to 65 degrees and complaints of pain. 2. For the period of September 18, 2015, to January 6, 2019, the Veteran’s service-connected fracture of the right clavicle, SLAP lesion repair (major), was manifested by limitation of motion of the major arm to 45 degrees and complaints of pain. 3. Prior to January 13, 2016, the Veteran’s service-connected left knee condition was manifested by complaints of pain, locking, effusion, mild instability, and limitation of motion. 4. From January 13, 2016, the Veteran’s service-connected left knee condition is manifested by x-rays showing degenerative changes, with complaints of pain, locking, limitation of motion, effusion, and moderate instability and recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent prior to September 18, 2015, and an evaluation in excess of 30 percent for the period of September 18, 2015, to January 6, 2019, for service-connected fracture of the right clavicle, SLAP lesion repair (major), with degenerative joint disease, supraspinatus tear and tendonitis, have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5203 (2019). 2. The previously assigned ratings for left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, under Diagnostic Code 5010-5257 will be reinstated, with a separate rating under Diagnostic Code 5258 as previously awarded. See page 12 below. 3. The service-connected left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, will be rated under Diagnostic Code 5010-5257; for the period of January 13, 2016, to February 24, 2016, the criteria for entitlement to an evaluation of 20 percent were met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5257 (2019). 4. The service-connected left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, will be rated under Diagnostic Code 5010-5257; the criteria for entitlement to evaluations in excess of 10 percent prior to January 13, 2016, and in excess of 20 percent, effective January 13, 2016, have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5257 (2019); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 5. Prior to January 13, 2016, the criteria for entitlement to a compensable evaluation under Diagnostic Codes 5010-5260 for painful/limited motion due to the service-connected left knee torn ligament were not met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to December 1997. In October 2017, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2019, the Board issued a determination related to the issues above, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the Veteran’s representative and the Secretary of Veterans Affairs requested to vacate and remand the Board’s denial of (1) entitlement to a rating in excess of 20 percent prior to September 18, 2015, and in excess of 30 percent from September 18, 2015, to January 6, 2019, for the service-connected fracture of the right clavicle, SLAP lesion repair (major); (2) entitlement to a rating in excess of 20 percent for the service-connected left knee condition, to include reconsideration of the Board’s decision to replace the rating under Diagnostic Code 5257 with a rating under Diagnostic Code 5258,; and (3) a compensable rating for left knee painful and limited motion under Diagnostic Code 5003-5250 prior to January 13, 2016, for the service-connected left knee condition. In September 2020, the Court granted the JMPR and remanded the matters for action consistent with the JMPR’s terms. The Veteran and his attorney were advised in a September 14, 2020 letter that the appeal had returned to the Board and they had 90 days to submit additional evidence or argument; nothing further has been received. The Board notes the Veteran has a separate appeal pending under the Appeals Modernization Act (AMA) with respect to a September 2019 rating decision. That appeal will be handled in a future Board decision. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The Veteran has also not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board acknowledges that the Veteran submitted additional medical evidence after the July 2019 supplemental statement of the case (SSOC) was issued. However, under the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, the additional evidence that the Veteran submitted after this SSOC is subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2019). The Board also notes that some additional medical evidence, not submitted by the Veteran, was associated with the claims file after the Board’s last decision. However, this evidence is either duplicative or not relevant. None of the new VA outpatient records provide any information regarding the severity of the Veteran’s service-connected disabilities; it is merely noted that he has a past history of the shoulder and knee disabilities with continuing pain complaints, but there were no objective findings for either condition. The new private medical records and VA examinations do not pertain to these conditions. Therefore, the Board may proceed to adjudicate the claims as done below. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reviewing the Veteran’s appeals for increased ratings, the Board has not overlooked the holding of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims he is unable to work due to a service-connected disability). However, the evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities on appeal. Moreover, while the Veteran has indicated that his service-connected disabilities affect his employment, he has not asserted that he is unemployable as a result of them. As such, the Board finds that Rice is not applicable to the current appeal, and the issue of entitlement to TDIU should not be construed as being on appeal. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, such staged ratings have been assigned. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to increased evaluations for service-connected fracture of the right clavicle, SLAP lesion repair (major) prior to January 7, 2019 In an August 2011 rating decision, the Regional Office (RO) continued a 20 percent evaluation, for service-connected fracture of the right clavicle, SLAP lesion repair (major), under Diagnostic Codes 5203-5201. In a July 2019 rating decision, the RO increased the evaluation to 30 percent, effective September 18, 2015, and assigned an evaluation of 40 percent, effective January 7, 2019. In a November 2019 decision, the Board denied increased ratings for all periods. In the August 2020 JMPR, the denial of the claim for entitlement to an evaluation in excess of 40 percent, effective January 7, 2019, was not vacated. As such, at this time, the Board is only considering the evaluations assigned to this disability prior to January 7, 2019. For the reasons given below, the Board is denying increased ratings for these time periods. As an initial matter, the Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. In this case, the period of time on appeal for consideration is prior to January 7, 2019. As such, the February 7, 2021, amendments to the rating criteria cannot be applied in the evaluation of this claim. Prior to February 7, 2021, Diagnostic Code 5201 provides for ratings based on limitation of motion of the arm. Specifically, Diagnostic Code 5201 provides a 20 percent rating for limitation of motion of the major arm at shoulder level (90 degrees). A 30 percent evaluation is warranted for limitation of motion of the major arm midway between side and shoulder level (45 degrees). A 40 percent evaluation is warranted for limitation of motion of the major arm to 25 degrees from side. 38 C.F.R. § 4.74a, Diagnostic Code 5201 (2019). Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2019). Under Diagnostic Code 5203, a 10 percent disability rating is assigned for impairment of the clavicle or scapula manifested by malunion. A 10 percent rating is also warranted where there is nonunion without loose movement. Where there is nonunion with loose movement, a 20 percent disability evaluation is warranted. A 20 percent disability evaluation is also warranted for impairment manifested by dislocation of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2019). Diagnostic Code 5203 also provides that impairment of the clavicle can be alternatively rated on impairment of function of the contiguous joint. Id. The Board has reviewed all relevant post-service medical records, which document complaints of chronic shoulder pain, as well as the Veteran’s statements and hearing testimony, and statements from his friends, co-workers, and spouse. Specifically, the Veteran testified at the October 2017 hearing that he experienced pain, weakness, tingling, and a lot of loss of use, as well as difficulty sleeping due to pain. His friends, co-workers, and spouse have reported witnessing his pain and discomfort. The Veteran underwent pertinent VA examinations in July 2011 and September 2015. For the period of time on appeal prior to September 18, 2015, the Board finds the criteria for a rating higher than 20 percent were not met under Diagnostic Code 5201. Specifically, there is no medical evidence from this time period reflecting limitation of motion of the major arm midway between side and shoulder level (45 degrees). The July 2011 VA examination specifically noted a limitation of abduction to 65 degrees with no additional limitations after 3 repetitions of range of motion. As such, an increased evaluation is not available under this diagnostic code. For the period of time on appeal from September 18, 2015, to January 6, 2019, the Board finds the criteria for a rating higher than 30 percent were not met. Specifically, there is no medical evidence from this time period reflecting limitation of motion of the major arm to 25 degrees from the side. The September 2015 VA examination specifically noted a limitation of abduction to 45 degrees. As such, an increased evaluation is not available under this diagnostic code. The Board has reviewed the remaining diagnostic codes relating to shoulder disabilities but finds that they do not provide for an increased or separate rating under the circumstances. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203 (2019). As there is no evidence of ankylosis of the scapulohumeral articulation, flail shoulder, false flail shoulder, fibrous nonunion of the humerus, or malunion of the humerus with moderate or marked deformity, an increased or separate rating is not warranted under Diagnostic Codes 5200 or 5202. See July 2011 and September 2015, VA examination reports. Diagnostic Code 5203 evaluates impairment of the scapula or clavicle. This diagnostic code notes that the condition could be rated under this diagnostic code OR on impairment of function of contiguous joint. As an evaluation in excess of 20 percent is not available under this diagnostic code, the Board finds this diagnostic code does not provide for an increased rating for this service-connected disability, as the Veteran is already rated at a minimum of 20 percent for the entire period of time on appeal. Moreover, as limitation of motion appears to be the Veteran’s primary symptom, the Board finds it would be pyramiding to evaluate the Veteran’s disability under both Diagnostic Codes 5201 and 5203. As such, the Board finds that the symptoms associated with this service-connected disability are most appropriately rated under Diagnostic Code 5201, and an increased or separate rating cannot be granted under other diagnostic codes. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation. While the September 2015 VA examiner noted that pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-up or when the joint is used repeatedly over a period of time, testing after repetitive use was not conducted because pain was worse with increased activity. The July 2011 VA examiner, however, noted no additional limitations after 3 repetitions of range of motion. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011) stand for the proposition that the concepts of functional loss and painful motion are still used to apply the rating criteria found in the diagnostic codes. The Thompson court noted that: “Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.” Thompson, 815 F.3d at 786. So, in other words, here, the Veteran’s shoulder rating is based on the rating criteria discussed above, and those ratings contemplate his limited motion with the associated pain and functional impairment. The Board acknowledges that range of motion was not tested after a flare up or after repeated use over a period of time at either the July 2011 or the September 2015 VA examinations. At the September 2015 VA examination, the Veteran reported that flare-ups impact the function of his shoulder or arm, in that he experiences “lots of pain” with limited motion. However, range of motion testing was not conducted after repetitive use, during a flare-up, or after repeated use over time. As the period of time on appeal dates prior to January 7, 2019, the Board finds that a remand to attempt to obtain the current range of motion of his shoulder would serve no purpose in evaluating the Veteran’s functional loss prior to January 7, 2019. Thus, the Board must evaluate the claim based on the available evidence of record. Reviewing the available evidence of record prior to January 7, 2019, the Board does not find any evidence demonstrating additional functional loss after repeated use over a period of time or during a flare up that would meet the criteria of an increased rating for any period of time on appeal. The Board acknowledges the Veteran’s complaints of “lots of pain” but notes that pain alone does not constitute functional loss warranting a higher rating under VA regulations governing evaluations of musculoskeletal disabilities. 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.” See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Notably, despite the Veteran’s complaints that flare-ups impact the function of his shoulder, the Veteran reported no lost time from work during the prior 12-month period at the July 2011 VA examination. Additionally, he reported only mild effects on performing chores, bathing, grooming, driving, and dressing, with no effects on feeding or toileting. The September 2015 VA examiner noted that the Veteran should not lift, climb, or carry due to his shoulder disability, but gave no indication of functional loss so as to meet the criteria for a higher evaluation. There is also no evidence in the Veteran’s treatment records of functional loss sufficient to meet the criteria for a higher evaluation. Therefore, as additional limitation of function was not recorded so as to warrant an increased rating, the Board finds that an increased rating is not warranted under the Deluca criteria for any period of time on appeal. In summary, the Board concludes that the preponderance of the evidence is against the claim for increased ratings for the Veteran’s service-connected right shoulder disability for any period of time on appeal prior to January 7, 2019. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 74 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and applied appropriately. See Hart, supra. 2. Entitlement to increased evaluations for service-connected left knee Before proceeding to analyze the claim, for clarity, as a result of the prior November 2019 Board decision, the RO’s implementing rating decision of November 2019, the terms of the JMPR, and the analysis below, the Veteran will have the following ratings for his left knee: Diagnostic Code 5010-5257 10 percent 12/2/97 100 percent 5/1/03 10 percent 6/1/03 100 percent 6/29/05 10 percent 9/1/05 20 percent 1/13/16 Diagnostic Code 5258 20 percent 2/9/11 Diagnostic Code 5010-5260 10 percent 1/13/16 In an August 2011 rating decision, the RO continued a 10 percent evaluation for service-connected left knee torn ligament under Diagnostic Code 5257. In a July 2019 rating decision, the RO increased the evaluation assigned to this disability to 20 percent, effective February 24, 2016, under Diagnostic Codes 5010-5257, recognizing that the medical evidence now also showed degenerative joint disease and degenerative meniscus tear. In a November 2019 decision, the Board granted entitlement to a 20 percent evaluation for this service-connected disability under Diagnostic Code 5258 for the entire period of time on appeal in lieu of the previously assigned evaluations assigned under Diagnostic Codes 5010-5257. The Board also granted entitlement to a separate 10 percent evaluation under Diagnostic Codes 5003-5260 for painful/limited motion, effective January 13, 2016. In the August 2020 JMPR, it was specifically noted the favorable findings as they relate to Diagnostic Codes 5010 and 5258 should not be disturbed. The RO implemented the Board’s decision assigning a 20 percent rating under Diagnostic Code 5258 for the entire period on appeal with a February 9, 2011 effective date. That rating with that effective date remains undisturbed per the JMPR, but should be separated from the rating under Diagnostic Code 5010-5257. As noted above, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As the period of time on appeal extends to the present, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and under both the old and the new rating criteria from February 7, 2021, to the present, where applicable. The criteria that is more favorable to the Veteran will be applied. The Board has reviewed all relevant post-service medical records, as well as the Veteran’s statements and hearing testimony, which primarily document complaints of pain, instability, and giving out. The Board has also reviewed statements from the Veteran’s spouse, co-workers, and friends, which primarily document witnessing pain and limitation of activities, such as walking around a mall without sitting to calm down his pain or standing for periods of time at work without his knee giving out. The Veteran underwent VA knee examinations in July 2011, February 2016, and January 2019, which are of record. Prior to the February 7, 2021, regulatory change, Diagnostic Code 5257 addresses impairment of the knee in the form of recurrent subluxation or lateral instability. A 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability, a 20 percent is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent is warranted for severe recurrent subluxation or lateral instability. As of February 7, 2021, under the amended criteria, Diagnostic Code 5257 addresses knee, other impairment. With regard to recurrent subluxation or lateral instability, a 10 percent evaluation is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent evaluation is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. With regard to patellar instability, a 10 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. According to note (1), for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. According to note (2), 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). As noted above, the Veteran’s service-connected left knee disability was previously assigned a 10 percent evaluation prior to February 24, 2016, and a 20 percent evaluation, effective February 24, 2016, under the criteria in effect for Diagnostic Code 5257 prior to February 7, 2021. The Board is mindful that the Veteran has been assigned at least a compensable evaluation under Diagnostic Code 5257 for more than 20 years, and thus the compensable evaluation is protected and a change to a different diagnostic code is, in essence, a reduction of that disability rating. See Murray v. Shinseki, 24 Vet. App. 420, 426 (2011); 38 C.F.R. § 3.951, 3.952. The Board has reconsidered its prior decision, with note of the Court’s holding in Murray, which noted that 38 C.F.R. § 3.951(b) indicates that a “disability rating which has been continuously rated at or above any evaluation of disability for 20 or more years... will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.” In Murray, the Court clarified that a change in Diagnostic Code can constitute an impermissible rating reduction under § 3.951(b), as it, “in essence, reduce[s]... the disability compensation related to [the original DC] to zero.” 24 Vet. App. at 426. Therefore, the Board will continue to evaluate the Veteran’s condition under Diagnostic Code 5257, as it has been evaluated since service connection was initially granted, effective December 2, 1997, and will reinstate the prior evaluations, to include the ratings during the appeal period, which were a 10 percent evaluation in effect prior to February 24, 2016, and the 20 percent evaluation, effective February 24, 2016, under Diagnostic Code 5257. With regard to whether an evaluation in excess of 10 percent is warranted under Diagnostic Code 5257 prior to February 24, 2016, the Board notes that the claims file contains a January 13, 2016, VA treatment record which noted a Lachman test score of 2+ and complaints of instability. As such, resolving all reasonable doubt in favor of the Veteran, the Board will extend the 20 percent evaluation assigned to this service-connected disability under Diagnostic Code 5257 back to January 13, 2016. With regard to whether an evaluation in excess of 10 percent is warranted for the period of time on appeal prior to January 13, 2016, under Diagnostic Code 5257, the Board finds no evidence during this period reflecting that the Veteran’s service-connected left knee disability manifested with recurrent subluxation or lateral instability that was more than slight in severity. The Veteran denied recurrent subluxation at the July 2011 VA examination. He reported giving way and instability at the July 2011 VA examination. However, upon examination, the examiner noted no instability. Further, the Veteran’s treatment records give no indication of recurrent subluxation or lateral instability that is more than slight in nature prior to January 13, 2016. As such, an evaluation in excess of 10 percent is not warranted for the period of time on appeal prior to January 13, 2016, under Diagnostic Code 5257. With regard to whether an evaluation in excess of 20 percent is warranted under Diagnostic Code 5257 for the period of January 13, 2016, to the present, the Board notes that the criteria in effect for Diagnostic Code 5257 prior to and as of February 7, 2021, will be considered. With respect to the criteria in effect prior to February 7, 2021, the Board finds the evidence of record does not reflect that the Veteran’s left knee disability manifested during this period with severe recurrent subluxation or lateral instability, as needed for an increased rating. The February 24, 2016, VA examiner noted that the Veteran’s left knee disability manifested with moderate recurrent subluxation. The January 2019 VA examiner specifically noted the Veteran did not experience recurrent subluxation of the left knee. The Veteran did not report recurrent subluxation at the October 2017 hearing, and the remainder of the medical evidence of record, to include the Veteran’s VA treatment records, do not document recurrent subluxation of the left knee. With regard to instability, while the anterior instability test at the February 2016 VA examination noted instability of 0 to 5 millimeters, the posterior instability test, medial instability test, and lateral instability test were noted as normal. Moreover, the February 2016 VA examiner specifically noted there was no history of lateral instability of the left knee. A January 13, 2016, VA treatment record noted a Lachman test score of 2+, and a February 24, 2016, VA treatment record noted a Lachman test score of 1+. Neither of these findings would suggest instability of a severe nature. Moreover, the January 2019 VA examiner specifically noted that there was no evidence of a history of lateral instability. Therefore, upon review of all available evidence of record, the Board finds there is no evidence of record suggesting that the Veteran’s service-connected left knee disability manifested with recurrent subluxation or lateral instability that was more than moderate in nature. As such, an evaluation in excess of 20 percent is not warranted for the period of January 13, 2016, to the present under the Diagnostic Code 5257 criteria in effect prior to February 7, 2021. With regard to the Diagnostic Code 5257 criteria in effect as of February 7, 2021, the Board notes that the Veteran is not service connected for a diagnosed condition involving the patellofemoral complex. While he was noted in a July 2011 VA examination report as having left knee patellofemoral syndrome, he is service connected for left knee internal derangement (ligament tear) [anterior cruciate ligament (ACL)] with degenerative joint disease and degenerative meniscus tear. As such, an increased evaluation is not warranted for his service-connected left knee disability based on patellar instability. With regard to recurrent subluxation or lateral instability, the evidence of record does not reflect that the Veteran’s service-connected disability manifests with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Board acknowledges that a July 2012 VA prosthetics consultation noted that the Veteran was being measured for a hinged left knee brace. It was noted that braces are medically necessary for prevention of edema, pain, and instability. However, there is no evidence of record reflecting that the Veteran has been provided a cane, crutch, or walker from a medical provider. Moreover, the February 2016 and the January 2019 VA examiners specifically noted that the Veteran used only a knee brace. As such, the Board does not find that the Veteran’s service-connected left knee disability meets the criteria for an evaluation in excess of 20 percent in accordance with the Diagnostic Code 5257 criteria in effect as of February 7, 2021. The Board has reviewed alternative diagnostic codes under which the Veteran could receive increased ratings for the left knee. Specifically, there is no evidence of record showing that the Veteran has ankylosis, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum with regard to the left knee. As such, Diagnostic Codes 5256, 5262, and 5263 are not applicable for any period of time on appeal under either the old or the new diagnostic criteria. Prior to the February 7, 2021, regulatory change, Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Effective February 7, 2021, Diagnostic Code 5010 evaluates post-traumatic arthritis as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Prior to the February 7, 2021, regulatory change, Diagnostic Code 5003 states that degenerative arthritis, or osteoarthritis, when 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2019). Effective February 7, 2021, Diagnostic Code 5003 was altered to evaluate degenerative arthritis, other than posttraumatic. With regard to range of motion, normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. According to Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both currently codified under 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (2004). With regard to the possibility of assigning an increased evaluation for the Veteran’s left knee disability under Diagnostic Code 5261, there is no evidence of record reflecting a limitation of extension to at least 5 degrees. Extension was noted at 0 degrees at the July 2011, February 2016, and January 2019 VA examinations. As such, an increased rating or separate compensable evaluation is not warranted under Diagnostic Code 5261 for any period of time on appeal. With regard to Diagnostic Code 5260, as noted above, the Board granted entitlement to a 10 percent evaluation under Diagnostic Codes 5003-5260, effective January 13, 2016, in the November 2019 determination. The Board notes that this date was assigned, in light of a January 13, 2016, VA treatment record reflecting an x-ray report showing degenerative changes of the left knee. The RO implemented the Board’s decision assigning a 10 percent rating under Diagnostic Code 5010-5260 with a January 13, 2016, effective date. That rating with that effective date remains undisturbed per the JMPR. Regarding whether any earlier effective date could be assigned in this case, the Board has considered the JMPR’s discussion of the fact that an x-ray report of the Veteran’s left knee from January 28, 2004, noted that AP and lateral radiographs demonstrated minimal narrowing of the medial joint space compartment of the left knee. It was further noted that no significant degenerative joint disease was identified. The Board acknowledges that a finding of no significant degenerative joint disease does not mean that the Veteran has no degenerative joint disease at all. However, the VA examiner who conducted the February 2004 VA examination in connection with the January 2004 x-ray report did not diagnose the Veteran with degenerative joint disease or arthritis but instead only noted that the Veteran suffered symptoms as a result of an ACL tear and a repaired meniscal injury. Moreover, the Veteran underwent a VA joint examination in November 2005, at which he was diagnosed with left knee ACL injury status post reconstruction. The examiner specifically noted that no degenerative changes were seen at this time. An x-ray report from November 1, 2005, conducted in connection with this examination specifically noted status post ACL repair without acute injury of bone destruction. AP and lateral views of the left knee in standing position and sunrise view of left patella revealed status post ACL repair with screws seen in distal end of femur and proximal end of tibia since January 28, 2004. There was no evidence of fracture, dislocation, or bone destruction. Degenerative joint disease was not confirmed. In a July 2011 VA examination, the examiner noted that the Veteran did not have inflammatory arthritis. The Veteran was diagnosed with left knee patellofemoral syndrome and status post ACL repair of the left knee. In an April 2013 VA medical record, an x-ray report revealed that the Veteran’s left knee showed no acute bony abnormalities; the patient was status post ACL reconstruction; there was no evidence of hardware failure; and there was no early degenerative change. In a September 2014 VA x-ray report, no acute fracture or dislocation was noted. Degenerative, postsurgical change was re-demonstrated. Therefore, while the January 28, 2004, x-ray report revealed minimal narrowing of the medial joint space compartment of the left knee, the Board finds the remaining evidence of record does not support a finding of degenerative joint disease or arthritis of the left knee prior to January 13, 2016. As noted above, Diagnostic Code 5003 requires that degenerative arthritis be established by x-ray findings. X-ray findings from November 2005, April 2013, and September 2014 all specifically do not confirm degenerative joint disease or arthritis of the left knee. Moreover, the November 2005 examiner specifically noted that no degenerative changes were seen at that time. The Board does not find that a single x-ray report noting minimal narrowing of the medial joint space is more probative than 3 subsequent x-ray reports revealing no degenerative joint disease. As such, the Board finds that a compensable evaluation cannot be assigned prior to January 13, 2016, under the Diagnostic Codes 5003 and 5010 criteria in effect prior to the February 7, 2021, revisions. The Board notes that the February 7, 2021, revisions alter Diagnostic Codes 5003 and 5010. However, the new changes would only affect the period of time on appeal February 7, 2021, to the present, at which point the Veteran is already receiving a compensable evaluation for limitation of motion under Diagnostic Code 5260. The Veteran’s service-connected left knee disability may not be evaluated simultaneously for limitation of motion under Diagnostic Code 5260 and Diagnostic Codes 5003/5010 for the same period of time. With regard to assigning an increased evaluation under Diagnostic Code 5260 prior to January 13, 2016, the Board notes that the Veteran’s flexion was recorded at 100 degrees at the July 2011 VA examination. There is no other credible evidence of record prior to January 13, 2016, demonstrating limitation of flexion so as to warrant a compensable evaluation under Diagnostic Code 5260. With regard to Diagnostic Code 5258, as noted above, the Board granted entitlement to a 20 percent evaluation for this service-connected disability under Diagnostic Code 5258 in the November 2019 decision, and the August 2020 JMPR noted this favorable finding should not be disturbed. As this evaluation was granted for the entire period of time on appeal, and an evaluation in excess of 20 percent is not available under Diagnostic Code 5258, an increased rating cannot be assigned under Diagnostic Code 5258. Diagnostic Code 5259 addresses symptomatic removal of semilunar cartilage. While the Veteran was noted as having a meniscal abnormality at the July 2011 VA examination and a meniscal tear at the January 2019 VA examination, the Veteran is already receiving a separate compensable evaluation for symptoms associated with his service-connected left knee ligament symptoms, as discussed above. To assign an additional 10 percent evaluation under Diagnostic Code 5259 for the same symptoms would constitute pyramiding. As such, a compensable rating is not available under Diagnostic Code 5259 for the left knee for any period of time on appeal. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40 and 4.45, there is no indication in the medical evidence of record, to include the July 2011, February 2016, and January 2019 VA knee examination reports, that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation or for any further separate evaluations. The July 2011 VA examiner noted no additional limitation of motion after 3 repetitions. The January 2019 VA examiner noted no additional functional loss or range of motion after 3 repetitions or with repeated use over time. As such, an increased rating is not warranted for the Veteran’s service-connected left knee disability under the Deluca criteria for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) has been applied by the Board in assigning these ratings, and the staged ratings have been applied consistent with the medical evidence for the different time periods on appeal. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.