Citation Nr: 21015615 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-14 171 DATE: March 17, 2021 ORDER Entitlement to an initial rating higher than 10 percent for right knee strain is denied. Entitlement to an initial rating higher than 10 percent for right ankle strain is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to December 10, 2014, is remanded. FINDINGS OF FACT 1. Since the September 29, 2009 effective date of service connection, the Veteran’s right knee strain has been manifested by limitation of flexion of the knee to at most 110 degrees with repeated use over time and during flare ups, with no limitation of extension; there is no additional significant additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, and incoordination with repeated use over time and during flare ups. 2. Since the September 29, 2009 effective date of service connection, the Veteran’s right ankle strain has been manifested by limitation of ankle motion to at most 10 degrees of dorsiflexion and 35 degrees of plantar flexion with repeated use over time and during flare ups; there is no additional significant additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, and incoordination with repeated use over time and during flare ups. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for right knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes (DCs) 5256-5263. 2. The criteria for an initial rating higher than 10 percent for right ankle strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes (DCs) 5270-5274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to April 2005. His awards include the Combat Action Badge. These matters initially came before the Board of Veterans’ Appeals (Board) from a September 2011 rating decision. The Veteran testified before a Veterans Law Judge (VLJ) at a December 2014 hearing and a transcript of the hearing is associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In October 2015, the Board remanded these matters for further development. In July 2018, the agency of original jurisdiction (AOJ) assigned 10 percent ratings for right knee strain and right ankle strain, both from September 29, 2009. The AOJ also awarded a TDIU, from December 10, 2014. In March 2019, the Board again remanded these matters for further development. In January 2021, the Board sent the Veteran a letter which informed him that the VLJ who conducted the December 2014 hearing was no longer employed at the Board, asked him to indicate whether he wanted to attend a new hearing, and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. The letter was sent to the Veteran’s address of record and was not returned as undeliverable. A copy of the letter was also sent to the Veteran’s representative. The Veteran did not respond to the January 2021 letter. Therefore, it is assumed that he does not want another hearing and the Board shall proceed to consider his appeal. As for characterization of the issues on appeal, the AOJ awarded service connection for right knee strain and right ankle strain and assigned initial noncompensable disability ratings, both from September 29, 2009, in a November 2010 rating decision. The report of a September 2011 VA general medical examination was subsequently associated with the claims file in September 2011. This examination addressed the severity of the Veteran’s service-connected knee and ankle disabilities, among other disabilities. Hence, new and material evidence pertaining to the initial ratings assigned for the service-connected right knee and ankle disabilities was received within a year of the November 2010 rating decision. The issues of entitlement to higher ratings for the service-connected right knee and ankle disabilities were readjudicated in the September 2011 rating decision, from which the current appeal originates. As new and material was received within a year of the November 2010 rating decision, that decision is not final as to the initial ratings assigned for the service-connected right knee and ankle disabilities. 38 C.F.R. § 3.156 (b). Thus, the right knee and ankle matters have been characterized as entitlement to higher initial ratings for right knee strain and right ankle strain. Moreover, the AOJ awarded a TDIU, from December 10, 2014, in the July 2018 rating decision. In October 2018, the Veteran’s representative submitted a notice of disagreement (VA Form 21-0958) with respect to the effective date assigned for the award of a TDIU in the July 2018 decision. Although a statement of the case has not been issued with respect to this matter, the evidence reflects that the Veteran was unemployed during part of the claim period prior to December 10, 2014 and the TDIU issue on appeal was raised as part and parcel of the appeal for higher initial ratings for the service-connected right knee and ankle disabilities. Therefore, the claim period for the Veteran’s TDIU claim dates back to the September 9, 2009 effective date of service connection for right knee strain and right ankle strain, and the issue of entitlement to a TDIU, prior to December 10, 2014, is properly on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). Lastly, in the October 2015 and March 2019 remands, the Board instructed the AOJ to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain the Veteran’s outstanding VA treatment records, and afford the Veteran VA examinations to assess the severity of his service-connected right knee and ankle disabilities. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of letters dated in February 2016, October 2019, and December 2019. Copies of the authorization forms (VA Forms 21-4142 and 21-4142a) were included with the letters. Also, all outstanding VA treatment records were obtained and associated with the claims file and the Veteran was most recently afforded VA examinations in January 2020 to assess the severity of his service-connected right knee and ankle disabilities. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Higher Initial Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to an initial rating higher than 10 percent for right knee strain The Veteran’s service-connected right knee strain is rated under 38 C.F.R. § 4.71A, DC 5260. Under DC 5260, limitation of knee flexion is rated as follows: a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. VA’s General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, limitation of knee extension is rated as follows: a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, as explained above, these diagnostic codes were not changed. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran’s right knee strain has not met or approximated the criteria for a single rating in excess of 10 percent at any time since the effective date of service connection. A September 2009 statement from the Veteran and the report of a June 2010 VA examination indicate that the Veteran experienced right knee pain while standing and walking and also occasionally when performing no physical activity. He was sometimes unable to sleep due to aching discomfort in his knee. There was no swelling, heat, or redness. Examination revealed that the Veteran was able to “swing to flexion and extension arc of 140 degrees.” He was able to perform three repetitions of motion and there was no decreased motion due to pain or weakness. There was no clinical joint effusion or tenderness to palpation. The Veteran reported some tightness and soreness when the knee was stressed medially and laterally, but there was no laxity of the medial or lateral compartment and there was a negative drawer’s sign. The Veteran was diagnosed as having right knee arthralgia without any evidence of instability or localizing pain. The examiner who conducted the June 2010 examination noted that the Veteran did not use any assistive devices, that there was no limitation in the range of motion of the knee, that no pain or restriction of knee movement was detected, that the Veteran was able to swing through a full range of motion without any evidence of increasing limitation with repetitions due to either pain or weakness, that there were no significant flare ups, and that there was no knee instability. A September 2010 VA Gulf War examination report indicates that the Veteran experienced daily right knee pain/aches on both sides of the patella. His discomfort was mild, but it increased to moderate severity with increased use or walking. His gait was normal, he did not require any walking assistive devices or brace, he had not been totally incapacitated during the previous 12 months, and he had not undergone any surgeries or injections. There was no swelling, crepitus, subluxation, dislocation, instability, bony cancers, locking, or ankylosing areas. The Veteran was able to walk half of a mile, sit for one hour, and go up two flights of steps. During flare ups and following repetitive use, he would decrease his walking and standing until the flare ups resolved. Examination revealed that the Veteran’s right knee was normal in appearance without any effusion, redness, swelling, or scarring. There was minimal tenderness bilateral of the patellar area, but there were negative patellar compression, Lachman’s, and collateral ligament tests and McMurray’s testing was normal. The ranges of right knee motion were recorded as being flexion to 140 degrees and extension to 0 degrees. Patellar movement was normal and there was no laxity or crepitus. The active and passive ranges of knee motion were performed three times and were equal, and there was no additional weakness, fatigability, dyscoordination, additional restricted range of motion, or loss of joint function with use or against resistance. The Veteran was diagnosed as having right knee arthralgia. The Veteran reported during a September 2011 VA general medical examination, a September 2011 examination conducted for the purposes of a Social Security Administration (SSA) claim, in his April 2012 notice of disagreement, in a December 2014 statement, and during the December 2014 Board hearing that he experienced daily sharp right knee pain that was 4/10 in severity, was treated with medication, and was worsened by repetitive use, standing, walking, running, bending, lifting, jumping, and sitting. It sometimes felt like someone was stabbing his knee or it was on fire, and he was occasionally unable to bear weight on his knee or get out of bed. While standing up, he put most of his weight on the left leg because his right leg would give out. His knee would also occasionally pop and lock (preventing him from walking) and his knee would “give out” while walking upstairs or a hill. He was unable to walk long distances or perform much running or prolonged standing, but his daily activities and occupation were not affected. He did not use any knee brace. Examinations revealed that the Veteran’s carriage, posture, and gait were all normal. There was no right knee redness, tenderness, swelling, or instability. The ranges of knee motion were flexion to 125 degrees and extension to 0 degrees and there was no loss in the ranges of motion following 3 repetitions due to pain, fatigue, weakness, or incoordination. A diagnosis of a right knee sprain was provided. The report of a May 2016 VA knee examination reveals that the Veteran experienced right knee pain with prolonged standing and squatting. Flare ups of knee symptoms occurred with weather changes and with activities such as prolonged standing and squatting. There was no functional loss/impairment. Examination revealed that the ranges of right knee motion were flexion to 140 degrees and extension to 0 degrees. There was mild discomfort with palpation of the medial side of the knee (not really on the joint line), but there was no evidence of pain with weight-bearing or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion loss after three repetitions. He was being examined immediately after repetitive use over time and pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The Veteran was not being examined during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare ups. The examiner who conducted the May 2016 examination was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups without resorting to speculation because the Veteran was not being examined during a flare up. There were no additional contributing factors of disability. Moreover, muscle strength associated with right knee flexion and extension was normal (5/5) and there was no muscle atrophy. There was no history of recurrent subluxation, lateral instability, or recurrent effusion and right knee stability testing was all normal. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have any meniscus (semilunar cartilage) condition. There was no scarring associated with the Veteran’s right knee disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. A diagnosis of right knee strain was provided. This disability did not impact the Veteran’s ability to work. The Veteran reported during a January 2018 VA knee examination and an April 2018 VA nursing evaluation that he experienced right knee pain and aching with walking and burning pain. The pain was throbbing/dull, was worsened with prolonged standing, and was alleviated with rest, elevation, and rubbing. He also used medications to treat his knee symptoms. Flare ups of increased pain occurred with increased activity and weather changes. There was functional loss/impairment of the knee joint and if the Veteran was not experiencing a flare up, he was able to walk 1 block and stand for up to 15 minutes. Examination revealed that the ranges of right knee motion were flexion to 130 degrees and extension to 0 degrees. The ranges of motion themselves contributed to functional loss in that the Veteran experienced difficulty getting up from a squatting position. There was pain associated with knee flexion and the pain caused functional loss. There was evidence of pain with weight bearing, mild medial and lateral pain to palpation of the knee, and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion loss after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. The examiner who conducted the January 2018 examination was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time without resort to mere speculation because the history given by the Veteran was not specific enough to determine actual range of motion following repetitive use over time and during flare ups. There was no evidence of any excess fatigability or incoordination. Moreover, muscle strength associated with right knee flexion and extension was normal (5/5), there was no muscle atrophy, and there was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion and right knee stability testing was all normal. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have any meniscus (semilunar cartilage) condition. There was no scarring associated with the Veteran’s right knee disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. A diagnosis of right knee strain was provided. This disability impacted the Veteran’s ability to work in that he was limited in his ability to run and walk. The examiner who conducted the January 2018 examination noted that the Veteran would have difficulty performing weight bearing activities (e.g., standing and walking), but could perform seated tasks with breaks. There was pain with weight bearing, non weight bearing, and passive range of motion and the pain caused functional loss. The report of a VA knee examination dated in January 2020 indicates that the Veteran experienced chronic right knee pain which was 7/10 in severity and was treated with medications. Flare ups of increased knee pain (8/10 in severity) occurred 2 times per week, occurred with or without activities, and lasted for several hours at a time. During flare ups, the Veteran would stop activities and elevate his leg. There was morning knee stiffness which improved with ambulation, frequent crepitus, giving of the knee following prolonged walking (one block), and occasional locking of the knee if performing bending activities. There was no swelling and the Veteran had not undergone any surgeries or injections. There was right knee pain and weakness following flare ups and repeated use over time (pain was the most limiting factor), but there was no discoordination or additional loss of knee motion with flare ups or following repeated use over time. There was functional loss/impairment of the right knee in that the Veteran was limited to sitting for 20 minutes with his knee flexed (there were no restrictions if the knee was extended while sitting), standing for 20 minutes, and walking one block, and he avoided climbing and squatting activities. Examination revealed that the ranges of right knee motion were flexion to 110 degrees and extension to 0 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with knee flexion and extension and the pain caused functional loss. There was evidence of pain with weight bearing, evidence of mild tenderness to palpation to the anterior knee, and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion loss after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. Pain, weakness, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and during flare ups and the examiner who conducted the January 2020 examination specified that the ranges of knee motion following repetitive use over time and during flare ups would be flexion to 110 degrees and extension to 0 degrees. There were no additional contributing factors of disability. Moreover, muscle strength associated with right knee flexion and extension was normal (5/5), there was no muscle atrophy, and there was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion and right knee stability testing was all normal. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have any meniscus (semilunar cartilage) condition. There was no scarring associated with the Veteran’s right knee disability. There was pain throughout the entire range of right knee motion, during both active and passive motion and with weight bearing and non weight bearing. The pain limited the Veteran’s ability to stand and walk for prolonged periods. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. A diagnosis of right knee strain was provided. This disability impacted the Veteran’s ability to work in that he avoided ambulatory activities for a few hours during flare ups. The above evidence reflects that during the claim period, knee flexion has been limited to at most 110 degrees and knee extension has been to 0 degrees. These findings, by themselves and without consideration of potential functional impairment, are contemplated by no more than a single 10 percent rating for painful limitation of knee flexion under DC 5260. As for functional impairment, there is pain, weakness, fatigue, and lack of endurance associated with the Veteran’s right knee and he has reported flare ups of knee symptoms throughout the claim period. The ranges of knee motion remained the same following repetitive use testing during all examinations conducted during the claim period and the examiner who conducted the January 2020 examination specified that the ranges of knee motion would be limited to at most 110 degrees of flexion and 0 degrees of extension following repeated use over time and during flare ups. The Veteran is competent to report the symptoms associated with his service-connected right knee disability and the extent of his impairment during flare ups of symptoms and following repetitive use, 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 knee symptoms have most closely approximated the criteria for at most a single 10 percent rating for painful limitation of knee flexion under DC 5260 during the entire period since the effective date of service connection. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent ratings at any time during the claim period. A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s knee symptoms have not been shown to have been so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees or limitation of knee extension more nearly approximating 10 degrees, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating limitation of knee extension under DC 5261, respectively. The Board acknowledges that the Veteran reported occasional giving out/giving way of the right knee/leg at some points during the claim period. The rating criteria for knee instability were amended, effective February 7, 2021. Prior to the regulatory change, a compensable (10 percent) rating was warranted for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71A, DC 5257 (in effect prior to February 7, 2021). As of February 7, 2021, under the amended criteria, a compensable (10 percent) rating is warranted for recurrent subluxation or instability if there is 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. A compensable (10 percent) rating is also warranted for patellar instability if there is 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. 38 C.F.R. § 4.71A, DC 5257 (in effect from February 7, 2021). The Veteran is certainly competent to report a giving way/unstable feeling of his knee/leg and the Board has no reason to challenge the credibility of his reports. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337; English v. Wilkie, 30 Vet. App. 347 (2018). Nevertheless, the Board points out that the Veteran denied a history of any recurrent subluxation, lateral instability, or recurrent patellar dislocation of the right knee during the May 2016, January 2018, and January 2020 examinations, and he reported only occasional giving way/giving out at points during the claim period. Moreover, stability testing of the knee has consistently been normal throughout the entire claim period, the Veteran has not used any brace or assistive devices, and his gait has remained normal. In light of these facts, the Board finds that any knee instability has not been so severe or frequent as to warrant a separate compensable rating for knee subluxation or instability or patellar instability under either the old or revised version of DC 5257 at any time since the effective date of service connection. Lastly, there is no evidence of any knee ankylosis, cartilage dislocation, cartilage removal, impairment of the tibia or fibula, or genu recurvatum at any time during the claim period. Therefore, separate/higher ratings are not warranted under DCs 5256, 5258-5259, 5262, or 5263 at any time during the claim period. Overall, the Veteran’s right knee disability has resulted in limitation of knee flexion that is no more than 10 percent disabling during the entire claim period. Accordingly, an initial rating higher than 10 percent for right knee strain is not warranted at any time since the effective date of service connection. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5256-5263. 2. Entitlement to an initial rating higher than 10 percent for right ankle strain The Veteran’s right ankle strain is rated under 38 C.F.R. § 4.71A, DC 5271 as limitation of ankle motion. Prior to the regulatory change, under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71A, DC 5271 (in effect prior to February 7, 2021). The terms “moderate” and “marked” are not defined in VA regulations prior to the regulatory change, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limitation of ankle motion (defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion) and a 20 percent rating is warranted for marked limitation of ankle motion (defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion). 38 C.F.R. § 4.71A, DC 5271. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran’s right ankle strain has not met or approximated the criteria for a rating in excess of 10 percent at any time since the effective date of service connection. The Veteran reported in his September 2009 statement and during the June 2010 VA examination that he experienced right ankle pain while standing and walking and also occasionally when performing no physical activity. He was sometimes unable to sleep due to aching discomfort in his ankle. There was no swelling, heat, or redness. Examination revealed that the ranges of right ankle motion were dorsiflexion to 10 degrees and plantar flexion to 45 degrees. There was no restriction of inversion or eversion. Three repetitions of ankle motion were performed and there was no “decreasing limitation due to pain or weakness.” There were no areas of pain on palpation of the ankle. The Veteran was diagnosed as having right ankle arthralgia without evidence of restriction of movement or joint laxity or disruption. The examiner who conducted the June 2010 examination noted that the Veteran did not use any assistive devices, that there was no limitation in the range of motion of the ankle, that no pain or restriction of ankle movement was detected, that the Veteran was able to swing through a full range of motion without any evidence of increasing limitation with repetitions due to either pain or weakness, that there were no significant flare ups, and that there was no ankle instability. The September 2011 VA general medical examination report indicates that the Veteran experienced intermittent right ankle pain. The only functional limitation was running. Repetitive use did not affect the Veteran’s ankle symptoms and there was no effect on his daily activities or occupation. Examination revealed that the Veteran’s carriage, posture, and gait were normal. There was no ankle tenderness, redness, or swelling. The ranges of right ankle motion were dorsiflexion to 20 degrees and plantar flexion to 40 degrees with 3 repetitions of motion. There was no increase in loss of range of motion due to pain, fatigue, weakness, or incoordination. A diagnosis of right ankle sprain was provided. The Veteran reported during the September 2011 examination conducted as part of his SSA claim, in his April 2012 notice of disagreement, in a December 2014 statement, during the December 2014 Board hearing, and during a May 2016 VA ankle examination that he experienced constant sharp right ankle pain and limited ankle motion. It sometimes felt like someone was stabbing his ankle or it was on fire, and he was occasionally unable to bear weight on his ankle or get out of bed. He was unable to walk or stand on his ankle for prolonged periods without the pain increasing and he put most of his weight on the left leg while standing because his right leg would give out. Flare ups of ankle symptoms occurred with weather changes and prolonged standing. There was no functional loss/impairment. Examinations revealed that the ranges of right ankle motion were dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was being examined immediately after repetitive use over time and pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. He was not being examined during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare ups. The examiner who conducted the May 2016 examination was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups without resort to mere speculation because the Veteran was not being examined during a flare up. There were no additional factors contributing to disability. Moreover, muscle strength associated with right ankle dorsiflexion and plantar flexion was normal (5/5), there was no muscle atrophy, and ankle instability or dislocation was not suspected. The Veteran did not have any shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis), or talus (astragalus), and he did not have a talectomy (astragalectomy). There were no scars related to the Veteran’s ankle disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. The Veteran was diagnosed as having a right ankle sprain. This disability did not impact his ability to work. A January 2018 VA ankle examination report indicates that the Veteran experienced a burning right ankle pain which was aggravated by stair use and was treated with medication. Flare ups of ankle symptoms occurred approximately 14 days per month and lasted all day, and the Veteran was able to walk ½ block and stand for 5 minutes during flare ups. There was functional loss/impairment of the ankle in that the Veteran was limited to walking one block and standing for 15 minutes. Examination revealed that the ranges of right ankle motion were dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was pain associated with ankle dorsiflexion and it caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare ups. The examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during flare ups without resort to mere speculation because the history given by the Veteran was not specific enough to determine actual range of motion following repetitive use over time or during flare ups. There was no evidence of excess fatigability or incoordination as a result of the service-connected right ankle disability. Moreover, muscle strength associated with right ankle dorsiflexion and plantar flexion was normal (5/5), there was no muscle atrophy, there was no ankylosis, and ankle instability or dislocation was not suspected. The Veteran did not have any shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis), or talus (astragalus), and he did not have a talectomy (astragalectomy). There were no scars related to the Veteran’s ankle disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. The Veteran was diagnosed as having a right ankle sprain. This disability impacted his ability to work in that he was limited in his ability to exercise and was unable to run. The examiner who conducted the January 2018 examination noted that there was no evidence of pain with non weight bearing, but there was evidence of pain with passive range of motion and weight bearing. The Veteran reported during an April 2018 VA nursing evaluation and a January 2020 VA ankle examination that he experienced a dull/achy right ankle pain which was 7/10 in severity, aggravated by standing, and alleviated by elevating his leg. Flare ups of ankle symptoms occurred approximately 3 days per week and lasted for a few hours at a time, during which pain was 8/10 in severity and the Veteran stopped all activities. There was morning stiffness, crepitus, and intermittent activity related swelling for a few hours at a time. There was no locking or giving way. The Veteran used medications to treat his ankle symptoms. He had not undergone any ankle surgery or injections. Also, he reported ankle pain without weakness, discoordination, or additional loss of motion following flare ups or repeated use over time. There was functional loss/impairment in that the Veteran was only able to stand for 20 minutes and walk one block and had to avoid climbing and squatting. Examination revealed that the ranges of right ankle motion were dorsiflexion to 20 degrees and plantar flexion to 35 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with dorsiflexion and plantar flexion, but the pain did not result in/cause functional loss. There was evidence of pain with weight bearing, there was mild tenderness at the joint line, and there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions and there was no additional loss of function or range of motion after 3 repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time and during flare ups, and the examiner who conducted the January 2020 examination specified that the ranges of motion of the right ankle during flare ups and with repeated use over time would be dorsiflexion to 20 degrees and plantar flexion to 35 degrees. There were no additional contributing factors of disability. Moreover, muscle strength associated with right ankle dorsiflexion and plantar flexion was normal (5/5), there was no muscle atrophy, there was no ankylosis, and ankle instability or dislocation was not suspected. The Veteran did not have any shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis), or talus (astragalus), and he did not have a talectomy (astragalectomy). There were no scars related to the Veteran’s ankle disability. The examiner noted that there was pain throughout the entire ranges of right ankle motion with both active motion and passive motion and with weight bearing and non weight bearing. There was no weakness, discoordination, additional loss of motion, lateral instability, or subluxation. The right ankle pain caused functional loss in that the Veteran was limited in his ability to stand and walk for prolonged periods. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. The Veteran was diagnosed as having a right lateral collateral ligament sprain and degenerative arthritis. This disability impacted his ability to work in that he had to stop activities for a few hours during flare ups. The above evidence reflects that during the claim period, right ankle dorsiflexion has been limited to at most 10 degrees and plantar flexion has been limited to at most 35 degrees. These findings, by themselves and without consideration of potential functional impairment, are contemplated by no more than a 10 percent rating for limitation of ankle motion under the old version of 5271 (i.e., moderate limitation of ankle motion), as dorsiflexion has been limited to at most half of the normal range and plantar flexion has been in excess of half the normal range. These range of motion findings are also contemplated by no more than a 10 percent rating under the revised version of DC 5271, as dorsiflexion and plantar flexion have exceeded 5 degrees and 10 degrees, respectively. As for functional impairment, there is pain associated with the Veteran’s right ankle and he has reported flare ups of ankle symptoms throughout the claim period. The ranges of ankle motion remained the same following repetitive use testing during all examinations conducted during the claim period and the examiner who conducted the January 2020 examination specified that the ranges of ankle motion would be limited to at most 20 degrees of dorsiflexion and 35 degrees of plantar flexion following repeated use over time and during flare ups. The Veteran is competent to report the symptoms associated with his service-connected right ankle disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. 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 ankle symptoms have most closely approximated the criteria for at most a 10 percent rating for painful limitation of ankle motion under DC 5271 during the entire period since the effective date of service connection. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during the claim period. A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s ankle symptoms have not been shown to have been so disabling to actually or effectively result in limitation of ankle motion more closely approximating marked limitation of motion under the old criteria or, more specifically, more closely approximating limitation of dorsiflexion to 5 degrees or less or limitation of plantar flexion to 10 degrees or less (the criteria for a 20 percent rating under the revised version of DC 5271). Moreover, there is no evidence of ankle ankylosis, and the absence of ankylosis was specifically noted during the January 2018 and January 2020 examinations. Also, there is no evidence of any malunion of the os calcis or astragalus or any astragalectomy. Thus, no separate and/or higher ratings are warranted on the basis of any such impairments at any time during the claim period. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274. Lastly, although the Veteran has also been diagnosed as having right ankle arthritis, both the old and revised regulations provide that degenerative and traumatic arthritis are rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. See 38 C.F.R. § 4.71A, DCs 5003, 5010. As the Veteran is already in receipt of a 10 percent rating under DC 5271 and this rating contemplates limitation of motion/function of the right ankle due to pain and other functional factors, a separate rating on the basis of ankle arthritis would constitute prohibited pyramiding and is not warranted. 38 C.F.R. § 4.14. Overall, the Veteran’s right ankle disability has resulted in limitation of ankle motion that is no more than 10 percent disabling under DC 5271 during the entire claim period. Accordingly, an initial rating higher than 10 percent for right ankle strain is not warranted at any time since the effective date of service connection. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71A, DCs 5270-5274. 3. Additional Considerations As a final point, the Board notes that in conjunction with the appeal for higher initial ratings for right knee strain and right ankle strain, other than the issue of entitlement to a TDIU prior to December 10, 2014 which is discussed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See 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). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities, prior to December 10, 2014, is remanded. As the record currently stands, the percentage ratings for the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) during the claim period prior to December 10, 2014. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA’s Director of Compensation (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Given the low standard for referral set forth in Ray, the Board finds that the evidence reflects that the Veteran has met this standard. Therefore, a remand is necessary to refer the TDIU issue on appeal to the Director for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: Refer the case to VA’s Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b) during the period from September 29, 2009 through December 9, 2014. The Director (or his designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16 (b) at any pertinent point from September 29, 2009 through December 9, 2014. The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.