Citation Nr: 21015004 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-20 150 DATE: March 16, 2021 ORDER Entitlement to an increased disability rating of 30 percent, but no higher, for right knee degenerative arthritis with retropatellar pain syndrome prior to January 30, 2020 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased disability rating higher than 30 percent for right knee degenerative arthritis with retropatellar pain syndrome from January 30, 2020 is denied. Entitlement to an increased disability rating of 30 percent, but no higher, for left knee degenerative arthritis is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating of 20 percent, but no higher, for right knee instability prior to September 7, 2017 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating higher than 20 percent for right knee instability from September 7, 2017 is denied. Entitlement to a disability rating of 20 percent, but no higher, for left knee instability prior to September 7, 2017 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating higher than 20 percent for left knee instability from September 7, 2017 is denied. Entitlement to an effective date of June 15, 2012, but no earlier, for the award of a disability rating of 20 percent for right knee meniscal tear with effusion and locking is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating of 20 percent for left knee meniscal tear with effusion and locking prior to September 5, 2018 is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. Prior to January 30, 2020, the Veteran’s symptoms of right knee degenerative arthritis with retropatellar pain syndrome more nearly approximated range of motion of flexion of 75 degrees and extension of 20 degrees with consideration of functional loss during flare-ups, but did not more nearly approximate extension limited to 30 degrees from throughout the entire appeal period. 2. Throughout the entire appeal period, the Veteran’s symptoms of left knee degenerative arthritis more nearly approximated range of motion of flexion of 75 degrees and extension of 20 degrees with consideration of functional loss during flare-ups, but did not more nearly approximate extension limited to 30 degrees. 3. Prior to September 7, 2017, the Veteran’s bilateral knee disabilities produced moderate lateral instability, but the evidence of record does not show that these symptoms more nearly approximated severe lateral instability or subluxation throughout the entirety of the appeal period. 4. The Veteran’s right knee meniscal tear became ascertainable on June 15, 2012, the date of a partial meniscectomy, after the filing of the bilateral knee increased disability rating claims on January 25, 2011. 5. Prior to September 5, 2018, the Veteran’s left knee meniscal tear with effusion and locking more nearly approximated symptoms of “locking,” pain, and effusion. CONCLUSIONS OF LAW 1. Prior to January 30, 2020, the criteria for an increased disability rating of 30 percent, but no higher, for right knee degenerative arthritis with retropatellar pain syndrome with limitation of motion during extension with consideration to flare-ups are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5003-5261. 2. From January 30, 2020, the criteria for a disability rating higher than 30 percent for right knee degenerative arthritis with retropatellar pain syndrome with limitation of motion during extension with consideration to flare-ups are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, DCs 5003-5261. 3. Throughout the appeal period, the criteria for an increased disability rating of 30 percent, but no higher, for left knee degenerative arthritis with limitation of motion during extension with consideration to flare-ups are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, DC 5261. 4. Prior to September 7, 2017, the criteria for disability ratings of 20 percent, but no higher, for bilateral knee instability are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, DC 5257.  5. From September 7, 2017, the criteria for disability ratings higher than 20 percent for right and left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, DC 5257. 6. The criteria for an effective date of June 15, 2012, but no earlier, for the award of a disability rating for right knee meniscal tear with effusion and locking are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.71a, DC 5258. 7. Prior to September 5, 2018, the criteria for a 20 percent disability rating for left knee meniscal tear with effusion and locking are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to September 2000. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that continued the 10 percent evaluations for bilateral knee retropatellar pain syndrome. The Veteran timely appealed this decision. In July 2017, the Board remanded the matters for further development. In July 2018, the Board denied increased disability ratings higher than 10 percent for bilateral knee limitation of motion and granted separate disability ratings of 20 percent for bilateral knee instability and a separate disability rating of 10 percent for symptomatic removal of semilunar cartilage of the right knee. In June 2019, the Court vacated those portions of the Board’s July 2018 decision that denied the Veteran’s claims for disability ratings higher than 10 percent for bilateral knee limitation of motion and a separate disability rating for dislocation of semilunar cartilage of the right knee, and remanded the matters for additional development and readjudication in compliance with directives specified in a June 2019 Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA. In November 2019, the Board remanded the matters for further development and also denied entitlement to a disability rating under DC 5258 for dislocation of semilunar cartilage prior to June 15, 2012 for the right knee. In June 2020, the RO increased the evaluation for right knee degenerative arthritis with retropatellar pain syndrome to 30 percent, effective January 30, 2020, thereby creating staged ratings. In September 2020, the Board remanded the matters for further development. For the reasons indicated in the discussion below, the December 2020 examination was adequate, and the Agency of Original Jurisdiction (AOJ) therefore complied with the Board’s most recent remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the RO awarded a 20 percent evaluation for right knee meniscal tear with effusion, effective September 5, 2018. This disability was previously evaluated at 10 percent as symptomatic removal of semilunar cartilage of the right knee under DC 5259, effective June 15, 2012. The RO also awarded a separate disability rating of 20 percent for left knee meniscal tear with effusion and locking under DC 5258, effective September 5, 2018. As a final preliminary matter, the Veteran has not indicated satisfaction with any of the awards of increased or separate disability ratings, therefore, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Disability ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.   In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.   The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint’s functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).      In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.     Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. Pain that does not result in additional functional loss does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The Board notes that there are additional DCs that pertain to the knee. However, as the evidence of record shows, the service-connected bilateral knee disability symptoms in this case have not either manifested as or been attributed to ankylosis, impairment of the tibia or fibula, or genu recurvatum. Therefore, separate or higher ratings under these additional knee DCs do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a; DCs 5256, 5262, 5263. Right knee degenerative arthritis with retropatellar pain syndrome and left knee degenerative arthritis The Veteran filed a claim for increased disability ratings for right knee degenerative arthritis with retropatellar pain syndrome and left knee degenerative arthritis that was received by VA on January 25, 2011. The Veteran is in receipt of a 10 percent disability rating for right knee degenerative arthritis with retropatellar pain syndrome from September 6, 2000, and a 30 percent disability rating from January 30, 2020, under DCs 5003-5261. He is also in receipt of a 10 percent disability rating for left knee degenerative arthritis, effective September 6, 2000, under DCs 5003-5261. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003 pertains to degenerative arthritis and is rated by analogy under DC 5261 for limitation of leg extension. DC 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 38 C.F.R. § 4.71a; DC 5260. DC 5261, limitation of extension of a leg, provides a noncompensable disability rating when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Id. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71; Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. See VAOPGCPREC 9-2004. The Veteran reported left knee meniscal tear repair in service in 1990. An October 2010 MRI of the right knee revealed a posterior horn medial meniscal tear. During an April 2011 VA joints examination, the Veteran presented with complaints of bilateral anterior knee pain that increased with prolonged standing, walking, driving, and riding in a car. There was pain over the lateral right knee and increased pain with walking upstairs, squatting, kneeling, and squatting. He used a cane and wore bilateral knee braces. The Veteran also reported bilateral knee instability with some unsteadiness on his feet, but denied any falls. Range of motion measurements of the left and right knee revealed normal extension with 140 degrees flexion. There was right knee pain from 100 to 140 degrees and left knee pain from 120 to 140 degrees. Bilateral subpatellar crepitus was noted. Repetition of ranges of motion did not increase pain, fatigue, weakness, lack of endurance, or incoordination. Each knee was stable to varus and valgus strain in neutral and in 30 degrees flexion. Anterior and posterior drawer signs were negative. Lachman’s and McMurray’s tests were also negative. There was no current inflammation, effusion, edema, or gross deformity noted on either knee. The examiner diagnosed right patellofemoral syndrome with medial meniscal tear secondary to degeneration and left patellofemoral syndrome. VA treatment records include a May 2011 report which reflected the Veteran’s complaints of right knee pain and a history of a meniscectomy. The assessment was degenerative tears of the medial and lateral meniscus. In June 2011, he complained of right knee pain that rated 8 out of 10 on the pain scale. Pain was worse when ascending and descending stairs and with prolonged driving. The Veteran also reported popping, catching, grating, and giving way. There was no stiffness, but he was unable to engage in his usual recreational activities or sport. Range of motion measurements of the right knee revealed 0 degrees extension to 120 degrees flexion. A June 2012 VA report showed a history of a right knee meniscus tear for which the Veteran underwent an arthroscopy and medial and lateral meniscus debridement. Findings indicated a large lateral meniscus horizontal tear of lateral horn and a small posterior horn tear of the medial meniscus. In February 2015 VA treatment notes, the Veteran reported bilateral knee pain and increased pain with ambulating stairs and squatting. He was unable to perform his usual recreational activities or sports. He also complained of popping, locking, giving way, and stiffness. Range of motion measurements of both knees indicated 0 degrees extension and 120 degrees flexion. In a June 2015 VA treatment record, the Veteran noted continued pain without relief from exercises, bracing and medications. Another report showed that an examination of the right lateral external knee revealed mild edema, fluctuation and tenderness to palpation. Private treatment records include an August 2017 report in which the Veteran stated that he underwent some type of surgery to his left knee, but could not recall whether he had a complete or partial meniscectomy. His left knee gave out without warning causing him to fall. He also reported severe bilateral knee pain with left knee locking. On a September 2017 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) examination, the examiner indicated diagnoses of bilateral patellofemoral pain syndrome and degenerative arthritis. The Veteran gradually developed increased bilateral knee pain, weakness, and stiffness since his discharge from active service. At the time of the examination, he wore knee braces daily and took prescribed pain medication. He also described bilateral knee laxity/instability. Range of motion measurements of the left and right knee indicated normal extension with 130 degrees flexion. There was pain with flexion and weight bearing. There was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and crepitus. On repetitive use testing, there was no additional functional loss. The examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups without mere speculation due to the absence of flare-ups on examination. Muscle strength testing indicated active movement against some resistance with both knees. Joint stability testing failed to indicate instability of the left or right knee. However, it was noted that he regular wore braces and used a cane. He suffered residuals of meniscal repair in 2012 including pain, weakness, and stiffness. The examiner opined that current bilateral knee disabilities would limit the Veteran’s ability to perform repetitive squatting or climbing. Bilateral knee diffuse tenderness as well as weakness and stiffness was revealed, but no demonstrable laxity or instability. However, the examiner opined that his bilateral knee disability was clinically worse than before. Flare-ups of the bilateral knee disability included increased pain and stiffness. Functional impairment was manifested by stiffness and weakness. VA treatment records include a September 2017 examination where pain was mostly on the lateral aspect of the left knee and worse with weight-bearing and prolonged walking. There was stiffness, popping, catching, locking, and giving way, and he was unable to perform his usual recreational activities or sports. Range of motion measurements of the left knee indicated 100 degrees flexion and 75 degrees flexion of the right knee. There was mild edema of the left knee. A February 2018 report indicates bilateral osteoarthritis of the knees. The Veteran ambulated with a steady gait and no assistive device or bracing. He stated that he had right knee arthroscopic surgery years ago, but reported no left knee surgeries. He recently had a left knee corticosteroid injection. Although pain on the medial aspect decreased, he developed pain on the medial aspect went away, but developed pain on the lateral aspect of the left knee. There was mild left knee edema and crepitus. Additional reports indicate left knee medial joint line tenderness, mild effusion, and mild patella femoral crepitus. Range of motion measurements indicated normal extension and 120 degrees flexion on the right knee and normal extension with 100 degrees flexion on the left knee. In May 2018, range of motion measurements indicated 75 degrees flexion on the left knee with 80 degrees flexion on the right knee. During a September 2018 VA knee examination, the Veteran reported bilateral knee pain that is a constant eight out of 10 which increases to a 10 out of 10 with increased walking and going up and down the stairs. The Veteran also noted that his knees pop and lock and feel as if they will give out secondary to the pain. Range of motion measurements of the right knee indicated 0 to 90 degrees flexion and extension, while the left knee indicated 0 to 80 degrees flexion and extension. Range of motion contributed to functional loss with pain noted on examination that caused functional loss. There was pain with flexion, extension, and weight bearing. On repetitive use testing, there was no additional functional loss. The examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups or with repeated use over time without mere speculation. There was no history of recurrent subluxation or lateral instability of either knee. There was no history of recurrent effusion. Joint stability testing was normal for both knees. Meniscal tears were noted for both knees with frequent episodes of joint “locking,” joint pain, and joint effusion (swelling). The Veteran reported constant use of a cane and brace. A July 2018 VA treatment record indicated the Veteran had full range of motion in his bilateral knees with pain. A January 2019 VA treatment record noted right and left knee flexion and extension of 110 to 0 degrees. In an October 2019 VA treatment record, the Veteran reported falling in the shower on more than one occasion due to knee weakness. During a January 2020 VA knee examination, the Veteran reported constant pain in both knees with intermittent swelling in both knees with the left knee currently swelling. The Veteran also had intermittent locking, popping, and stiffness bilaterally. He reported daily flare-ups of shooting pain that sometimes locks up his knee for approximately 15 to 20 minutes. He also noted functional loss or impairment of difficulty walking, getting in and out of vehicles, maneuvering stairs, and his knee occasionally gives out in the shower. Range of motion measurements of the knees indicated 0 to 100 degrees flexion and extension. Range of motion contributed to functional loss of decreased kneeling capacity with pain noted on examination that caused functional loss. There was pain with flexion, passive range of motion, non-weight bearing, and weight bearing. On repetitive use testing, there was no additional functional loss. Pain and fatigue significantly limited functional ability with repeated use over a period of time that was described in terms of range of motion of 0 to 90 degrees extension and flexion in both knees. Pain and fatigue significantly limited functional ability with flare-ups that was described in terms of range of motion of 20 to 90 degrees extension and flexion in the right knee and 10 to 90 degrees extension and flexion in the left knee. There was no history of recurrent subluxation or lateral instability of either knee. There was a history of recurrent effusion bilaterally. Joint stability testing was normal for both knees. Meniscal tears were noted for the right knee with frequent episodes of joint “locking,” joint pain, and joint effusion (swelling). The Veteran reported regular use of a cane. A private MRI from February 2020 indicated that the Veteran suffered from a left knee medial meniscus tear and lateral meniscus intrasubstance degeneration without tear. During a December 2020 VA knee examination, the Veteran reported pain, range of motion loss, locking up, popping, grinding, and stiffness. He reported flare-ups and functional loss or impairment of walking, sitting for prolonged periods of time, standing, and going up and down stairs. Range of motion measurements of both knees indicated 0 to 110 degrees flexion and extension. Range of motion itself did not contribute to functional loss. There was pain with flexion, passive range of motion, and non-weight bearing, and weight bearing. On repetitive use testing, there was no additional functional loss. Pain, weakness, and fatigue significantly limited functional ability with repeated use over a period of time and during flare-ups that was described in terms of range of motion of 0 to 105 degrees extension and flexion in both knees. There was no history of recurrent subluxation or lateral instability of either knee. There was no history of recurrent effusion. Joint stability testing was 1+ (0-5 millimeters) lateral instability in the right knee and 1+ (0-5 millimeters) posterior, medial, and lateral instability in the left knee. Meniscal tears were noted for both knees with frequent episodes of joint “locking,” joint pain, and joint effusion (swelling). For the following reasons, an increased disability rating of 30 percent, but no higher, for right knee degenerative arthritis with retropatellar pain syndrome prior to January 30, 2020, and an increased disability rating of 30 percent, but no higher, for left knee degenerative arthritis for the entire appeal period is warranted. The evidence of record reflects that, throughout the appeal period, the symptoms of the Veteran’s bilateral knee disabilities more nearly approximated 20 degrees limitation of extension when considering flare-ups. Although right and left knee extension was normal in both knees throughout the appeal period, with the exception of the January 2020 VA examination, the examiner who conducted the January 2020 examination specified that knee extension would be to 10 degrees in the left knee and 20 degrees in the right knee during flare ups. As noted above, the Veteran has indicated that the severity of his bilateral knee disability symptoms, including during flare-ups, has been consistent during the appeal period. Therefore, in light of the Veteran’s reported limitations during flare-ups, and the range of motion findings during flare-ups that were provided by the January 2020 examiner, 30 percent ratings, but no higher, for right knee degenerative arthritis with retropatellar pain syndrome prior to January 30, 2020, and left knee degenerative arthritis throughout the entire appeal period, are warranted under DC 5261.  Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (“effective date should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined”). Furthermore, the above discussed evidence does not reflect compensable limitation of flexion or symptoms more nearly approximating extension limited to 30 degrees. The Veteran is competent to report the symptoms associated with his service-connected bilateral knee disabilities and the extent of his impairment during flare-ups of symptoms, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare-ups, pain, and other functional impairments, and despite the fact that painful motion has been documented, the preponderance of the evidence nonetheless supports the conclusion that the Veteran’s bilateral knee symptoms have most closely approximated the criteria for 30 percent disability ratings, but no higher, for limitation of bilateral knee extension with consideration to flare-ups under DC 5261. For the foregoing reasons, increased disability ratings of 30 percent, but no higher, are warranted for service-connected right knee degenerative arthritis with retropatellar syndrome prior to January 30, 2020, and left knee degenerative arthritis for the entire appeal period. As the preponderance of the evidence is against higher disability ratings for any portion of the appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Right and left knee instability The Veteran is in receipt of 20 percent evaluations for right and left knee instability under DC 5257, both effective September 7, 2017, the date of a VA knee examination. The schedular criteria for rating knee instability was amended effective February 7, 2021. See 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, DC 5257). The amendments apply to claims, such as the Veteran’s, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Prior to February 7, 2021, DC 5257 provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. The terms slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the amended criteria, DC 5257 provides for recurrent subluxation or instability with a 30 percent rating that is unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, a 20 percent rating that is (a) 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) an 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, and a 10 percent rating for a 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. DC 5257 also provide for patellar instability with a 30 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker, a 20 percent rating 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, and a 10 percent rating 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. Note (1) of the rating provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note 2 states that 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 discussed further below, the evidence of record reflects that the schedular criteria of DC 5257 in effect prior to February 7, 2021 are more favorable to the Veteran and are for application here. For the following reasons, 20 percent disability ratings, but no higher, for the Veteran’s bilateral knee instability disabilities are warranted prior to September 7, 2017, but higher ratings are not warranted from that date. Throughout the appeal period, the VA examination reports, VA treatment records, and private treatment records noted bilateral knee instability, unsteadiness, giving way, popping, locking, stiffness, pain, swelling, weakness, and grinding. The Veteran also reported use of a cane and brace, although these were not prescribed by any medical providers. There was no history of recurrent subluxation or lateral instability of either knee throughout the appeal period. Joint stability testing was also normal in both knees throughout the appeal period, with the exception of the December 2020 examination that indicated joint stability testing was 1+ (0-5 millimeters) lateral instability in the right knee and 1+ (0-5 millimeters) posterior, medial, and lateral instability in the left knee. There was also no history of patellar instability in either knee throughout the appeal period. In light of the consistently specific and normal stability findings on repeated VA examinations and a lack of indication in the Veteran’s lay statements that the instability or recurrent subluxation was more than moderate, the preponderance of the evidence is against a finding that the knee instability symptoms more nearly approximated severe instability.  As the preponderance of the evidence is against higher disability ratings throughout the entire appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Moreover, there is no evidence that the Veteran’s bilateral knee instability just suddenly appeared on the date of the September 2017 VA examination. To the contrary, the Veteran has claimed that he has experienced instability since approximately April 2011 and reiterated his reports of his instability symptoms throughout the appeal period. See Swain, 27 Vet. App. at 224. The bilateral knee instability ratings are considered to have been part of the original increased disability rating claim for bilateral knee disabilities rather than a secondary disability. Thus, the date of claim for the left knee is thus considered to be January 25, 2011, the date on which the Veteran’s increased rating disability claim for bilateral knee disabilities was received by VA. Furthermore, the Veteran’s August 2011 notice of disagreement with the July 2011 rating decision discussing the bilateral knee disabilities and their evaluations was a challenge to all ratings granted during the appeal period for those disabilities and the dates within the appeal period that they were made effective. AB, 6 Vet. App. at 39. Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically, the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. Harper v. Brown, 10 Vet. App. 125 (1997). Here, the evidence of record reflects that the Veteran experienced bilateral knee symptoms more nearly approximating moderate lateral instability since approximately the date of receipt of the claim for increased disability ratings for bilateral knee disabilities on January 25, 2011. For the foregoing reasons, 20 percent disability ratings under DC 5257 for bilateral knee instability are warranted prior to September 7, 2017, but not from that date. Right and left knee effusion and locking In December 2020, the RO awarded a 20 percent evaluation for right knee meniscal tear with effusion and locking, effective September 5, 2018. This disability was previously evaluated at 10 percent as symptomatic removal of semilunar cartilage of the right knee under DC 5259, effective June 15, 2012. As noted in the introduction, the Board denied a disability rating under DC 5258 for the right knee prior to June 15, 2012. The RO also awarded a separate disability rating of 20 percent for left knee meniscal tear with effusion and locking under DC 5258, effective September 5, 2018. The 20 percent disability ratings constitute the maximum schedular rating under DC 5258. The bilateral knee meniscal tear ratings are considered to have been part of the original increased disability rating claim for bilateral knee disabilities rather than a secondary disability. Thus, the date of claim for the left knee is thus considered to be January 25, 2011, the date on which the Veteran’s increased rating disability claim for bilateral knee disabilities was received by VA. Furthermore, the Veteran’s August 2011 notice of disagreement with the July 2011 rating decision discussing the bilateral knee disabilities and their evaluations was a challenge to all ratings granted during the appeal period for those disabilities and the dates within the appeal period that they were made effective. AB, 6 Vet. App. at 39. Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically, the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. Harper, 10 Vet. App. at 125. Here, the Veteran underwent right knee meniscal tear repair in June 2012. Thus, that is the earliest date of which the disability was ascertainable after the filing of the claim. For the following reasons, a 20 percent disability rating is warranted prior to September 5, 2018 for the Veteran’s left knee meniscal tear with locking and effusion, and an effective date of June 15, 2012 for the award of a disability rating under DC 5258 for right knee meniscal tear with locking and effusion is warranted. The evidence of record reflects that the symptoms of the Veteran’s right and left knee meniscal tear repairs more nearly approximated dislocated, semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. VA examination reports, VA treatment records, and private treatment records indicated that the Veteran consistently experienced “locking,” pain, and effusion in his left knee since approximately January 25, 2011, the date of receipt of the increased disability rating claim, and since approximately June 15, 2012 for his right knee, the date of his right knee partial meniscectomy and of which the disability was ascertainable. Swain, 27 Vet. App. at 224. Moreover, based on the evidence above, the Veteran’s right and left knee disabilities are appropriately rated by analogy under DC 5258 instead of DC 5259 for removal of symptomatic semilunar cartilage. As mentioned previously, the Veteran underwent a partial right knee meniscectomy in June 2012 and left knee meniscal tear repair in 1990. However, as the Court reasoned in Hudgens v. Gibson, 26 Vet. App. 558, 563 (2014), a partial knee replacement could be rated by analogy under DC 5055 for knee resurfacing or replacement (prosthesis), provided that the functions affected, the anatomical localizations, and the symptoms of the disorder were analogous. Utilizing the reasoning from Hudgens here, the Veteran’s right meniscal tear with locking and effusion is appropriately rated by analogy under DC 5258 as the functions affected, anatomical localizations, and the symptoms considered under DC 5258 and 5259 are analogous. Specifically, only part of the right knee meniscus was removed in June 2012 and both DC 5258 and DC 5259 consider the knee and semilunar cartilage symptoms of “locking,” pain, effusion, and related functional limitations. Moreover, the selection of a particular diagnostic code “is a determination that is completely dependent upon the facts of a particular case,” and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential “arbitrary, capricious” standard, rather than de novo review, to the Board’s determination of the appropriate diagnostic code). For the foregoing reasons, a 20 percent disability rating for left knee meniscal tear with locking and effusion is warranted prior to September 5, 2018, and an effective date of June 15, 2012 for the award of a disability rating under DC 5258 for right knee meniscal tear with locking and effusion is warranted. (Continued on the next page)   The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record) Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.