Citation Nr: 21021925 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-43 175 DATE: April 14, 2021 ORDER A 10 percent rating prior to April 28, 2005, and a 20 percent rating thereafter, but no higher, for right knee degenerative joint disease (DJD) with ligament deficits, is granted. A 10 percent rating for right knee instability, prior to April 28, 2005, and a 20 percent rating thereafter for instability of the right knee, is granted. FINDINGS OF FACT 1. Prior to April 28, 2005, the Veteran’s right knee disability was manifested by pain, but no flexion of 45 degrees, no extension of at least 10 degrees, no locking, no effusion, no tibia or fibula impairment, no genu recurvatum, and no ankylosis; functional loss was limited to painful motion. 2. From April 28, 2005, the Veteran had functional loss in his right knee due to flare-ups with pain on use that impacted prolonged bending, walking, or standing, but no flexion of 45 degrees, no extension of at least 10 degrees, no locking, no effusion, no tibia or fibula impairment, no genu recurvatum, and no ankylosis. 3. Prior to April 28, 2005, the Veteran had mild right knee instability. 4. From April 28, 2005, the Veteran’s right knee instability required a brace for ambulation. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for right knee DJD with ligament deficits prior to April 28, 2005 and a 20 percent rating thereafter have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260. 2. The criteria for a 10 percent rating for right knee instability prior to April 28, 2005, and a 20 percent thereafter have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to March 1988. In January 2020, the Board remanded the above claims to obtain a VA examination for the Veteran’s right knee disabilities. The Veteran underwent a VA examination in February 2020. Therefore, the Board was satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran’s right knee disability. The Board finds that staged ratings are appropriate for his right knee condition as the evidence demonstrates that the Veteran’s right knee disability has varied throughout the appeal period. Musculoskeletal Disabilities When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27. 1. Increased ratings for right knee arthritis and instability The Veteran contends that he is entitled to higher ratings for his right knee disabilities. The Veteran is in receipt of a noncompensable rating from August 6, 1999 for his right knee DJD with ligament deficits under Diagnostic Codes (DCs) 5010-5260. The Veteran is also in receipt of a 10 percent rating from November 25, 2014 for right knee instability under DC 5257 from November 25, 2014. The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the knee, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Specifically, with respect to the knee, the Board notes that changes have been made to DC 5010 for traumatic arthritis, DC 5257 for knee instability, and DC 5262 for impairment of the tibia and fibula. Hyphenated codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Hyphenated codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated DCs in this case indicates that traumatic arthritis under DC 5010 is the service-connected disability and that limitation of the limitation of leg flexion under DC 5260 is the residual disability. DC 5010 for traumatic arthritis instructs the rater to assign ratings according to DC 5003, the DC for degenerative arthritis. DC 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. DCs 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, DCs 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees, a 20 percent evaluation when flexion is limited to 30 degrees, and a 30 percent evaluation when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees, a 20 percent evaluation when extension is limited to 15 degrees, a 30 percent evaluation when extension is limited to 20 degrees, a 40 percent evaluation when extension is limited to 30 degrees, and a 50 percent evaluation when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). Under DC 5258, a 20 percent rating is warranted for dislocated semilunar Cartilage, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under DC 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Id. Under DC 5257, governing recurrent subluxation and lateral instability, a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a, DC 5257. Additionally, the Board notes that DC 5257 was amended effective February 7, 2021. As of this date, with respect to recurrent subluxation or lateral instability, a 10 percent rating is assigned for recurrent subluxation or instability with sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for recurrent subluxation or instability with one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for recurrent subluxation or instability: 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. For patellar instability, a 10 percent is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 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). Under DC 5262 governing impairment of the tibia and fibula, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Additionally, effective February 7, 2021, the ratings under DC 5262 were amended. DC 5262 now provides new ratings for medial tibial stress syndrome (MTSS), or shin splints. Specifically, a 10 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. In addition, under DC 5262, a 40 percent is warranted for nonunion of the tibula or fibula with loose motion, requiring brace. With respect to malunion of the tibula or fibula, DC 5262 states that it is to be rated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Evidence Turning to the relevant evidence pertaining to the Veteran’s right knee, the Board notes that the Veteran’s VA and private treatment records note ongoing treatment and complaints of a right knee condition. In a February 2001 private clinic visit, the Veteran was seen for bilateral knee pain. The provider noted that his right knee was status post meniscectomy. On examination, the provider noted that his right knee showed increased travel with his Lachman compared with the left without a pivot shift. There was no major varus or valgus instability. Right knee range of motion (ROM) was from 0 to 130 degrees. There was no pain noted on the McMurray’s test, no joint tenderness, and no effusion. An x-ray revealed beginning arthritis in the right knee. There was also some medial joint space narrowing. In a March 2002 private office visit, the provider noted that the Veteran did not have any knee effusions. There was also evidence showing a bilateral ACL that was actually looser on his right knee than his left. The impression revealed bilateral osteoarthritis with chronic ACL tear status post bilateral meniscectomies. It was recommended that the Veteran switch from walking to nonimpact type exercises. In an April 2002 x-ray, the impression revealed spurring in the right knee. There was no acute fracture or dislocation. In an April 2002 VA primary care follow up note, the Veteran complained of bilateral knee pain. The provider noted that there was no swelling or tenderness in the knee. His ROM was good but had crepitus. There was no edema. In a May 2002 VA x-ray, the impression revealed moderate degenerative joint disease in the right knee. In an April 2003 VA MRI of the right knee, the impression revealed a subtotal absence of the medial meniscus and slight thinning with an intermediate signal of the anterior cruciate ligament. The lateral meniscus showed degenerative intrameniscal signals. There was no well-defined tear evidence. The posterior cruciate ligament, medical and lateral collateral ligaments, and patellar tendon complex also appeared intact. There was a very small amount of effusion seen. There were no abnormal bone marrow signals evident. In an August 2003 private x-ray, the provider noted that the Veteran had bilateral knee ACL tears and a medial meniscal tear in the right knee. The provider noted that he has symptomatic instability in the right knee, and the right knee has mild enough changes that reconstruction may be beneficial to him. In an August 2003 VA rehabilitation visit, the physical therapist noted that the Veteran’s ROM in his knees were within functional limits. There was tenderness to palpation all over the knees. There was a mild amount of edema. In an August 2003 VA primary care follow up, the provider noted that there was no swelling and no tenderness. However, the provider noted that there was pain and crepitus on ROM testing. In a July 2003 VA orthopedic surgery consult note, the provider noted that the Veteran had bilateral knee pain and instability. His knees were in a Bledsoe brace. In a September 2003 private evaluation, initial ROM testing revealed flexion to 130 degrees and extension to 0 degrees. The ROM in the right knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. The Drawer and McMurray’s tests of the right knee were within normal limits. In a December 2003 orthopedic surgery consult, the provider noted that an MRI showed osteoarthritis of both knees with an ACL tear. In the March 2004 VA examination, the impression revealed moderate degenerative joint disease, status post medial arthrotomy. Initial ROM testing revealed extension to within 5 degrees with flexion to 125 degrees. The Veteran complained of pain at extremes of motion. He had significant discomfort to palpation along the medial joint line. He also had mild pain along the patellofemoral margin. There was no instability on anterior or posterior drawer or anterior Lachman’s. There was no effusion and no varus or valgus instability. The examiner noted that there was moderate crepitation. The Veteran complained of pain and swelling in the knee. He denied any locking, catching, or giving way. He described no additional limitations following repetitive use or during flare ups. In an August 2004 VA primary care follow-up note, the provider noted that the Veteran had crepitus in the knee but did not specify which knee exhibited crepitus. In the April 2005 VA examination, initial ROM testing revealed flexion from 0 to 125 degrees with less than 5 degrees of full extension. The examiner noted that there was tenderness in the patellofemoral area along with crepitus. There was no varus or valgus stability, effusion, or posterior drawer test. He uses a cane during flare ups and uses a brace on both knees. In the March 2006 VA examination, initial ROM testing revealed flexion from 0 to 125 degrees with less than 5 degrees of full extension. The examiner noted the Veteran had tenderness in the patellofemoral area with crepitus. The examiner noted there was no effusion, instability, and no anterior or posterior drawer test. The Veteran also reported that he has flare ups of his knee that occur approximately four times a month and lasting for a couple of days. The Veteran also reported that he has difficulty getting dressed in the morning due to stiffness in his knees. He uses a cane during flare ups and uses a brace on both knees. In an August 2008 private evaluation of the right knee, ROM showed full range of movement in both flexion and extension. The provider noted tenderness in the right knee. However, there were no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation. The provider also noted that the right knee is additionally limited by the following after repetitive use: pain, weakness, lack of endurance, and pain. The provider noted that there was no additional limitation in degree. The Veteran also complained of right knee pain that gets worse with movement. In the January 2012 VA examination, the examiner noted diagnoses of DJD and right knee medial meniscus tear status post surgery. On initial ROM testing, flexion was to 135 degrees and extension was to 0. There was no objective evidence of painful motion. There was no additional loss of ROM on repetitive use testing. There was evidence of pain on palpation in the right knee. Muscle strength testing was normal. Joint stability tests for the right knee were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran was noted to have a meniscus condition with frequent episodes of pain in the right knee. Specifically, the Veteran was noted to have a right knee meniscectomy in 1975. Due to the meniscectomy, the Veteran has symptoms of mild pseudo laxity with valgus stress testing. The Veteran regularly uses a brace for locomotion due to his bilateral knee condition. The January 2012 x-ray showed no acute osseous abnormalities. With respect to flare ups, the Veteran did not report flare ups of his right knee. With respect to functional loss, the Veteran was not noted to have any functional loss and/or functional impairment of the right knee. In the November 2014 VA examination, the examiner noted a diagnosis of right knee joint osteoarthritis. The Veteran reported that he was in chronic pain, including with ambulation. He also reported weakness, and his knee buckles and swells periodically. Initial ROM testing of the right knee was normal; flexion was from 0 to 140 degrees, and extension was from 140 to 0 degrees. No pain was noted on the examination. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the right knee. There was no additional loss of function or ROM on repetitive use testing. Muscle strength testing was normal. The Veteran does not have muscle atrophy. The Veteran does not have ankylosis or a history of lateral instability or recurrent subluxation. The examiner noted periodic, recurrent effusion with prolonged walking. The Veteran has not had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. Joint stability testing revealed right knee anterior instability of 0-5 millimeters. The Veteran did not have a meniscal condition. The Veteran was also noted to have a scar in the medial right knee measuring 5 cm in length and 1 cm in width. The Veteran did not report flare ups or functional loss due to his right knee condition. The examiner also therefore noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. However, the examiner reported that swelling and instability of station contributed to the Veteran’s right knee condition. The Veteran regularly uses a brace for locomotion due to his right knee condition. In an August 2016 private x-ray, the findings revealed mild cartilage narrowing in the right tibiofemoral articulation. In an August 2016 VA x-ray, the x-ray impression revealed no acute fracture or dislocation. There was moderate right and severe left medial compartment DJD. Degenerative changes were also present within the other compartments of the knee joints bilaterally. The soft tissues were unremarkable. The provider noted that the Veteran needs a brace until he gets a knee replacement. The Veteran was to continue using an unloader brace. In the September 2016 VA examination, the examiner noted a diagnosis of DJD with ligament deficits. On initial ROM testing of the right knee, flexion was from 0 to 125 degrees, and extension was from 125 to 0 degrees. Pain was noted on the exam on rest/non-movement. There was evidence of pain with weight bearing. There was also objective evidence of localized tenderness or pain or palpation of the right knee; specifically, the examiner noted moderate tenderness in the anterior, medial of the right knee due to the Veteran’s right knee condition. There was objective evidence of crepitus. There was no additional loss of function or ROM on repetitive use testing. The examiner also noted that lack of endurance significantly limited functional ability with repeated use over a period of time, but the examiner was unable to describe the loss of functional ability in terms of ROM. The examiner also noted that the following additional factors contribute to the Veteran’s right knee condition: less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength testing was normal. There was no evidence of muscle atrophy, ankylosis, subluxation, instability, or recurrent effusion. However, joint stability testing revealed right knee anterior instability of 0-5 millimeters. The Veteran has not had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. With respect to a meniscal condition, the examiner reported that the Veteran had a meniscal tear and frequent episodes of joint pain. Specifically, the examiner noted that the Veteran underwent a cartilage repair in his right knee in 1975. The Veteran regularly uses a brace for locomotion due to his right knee condition. With respect to flare ups, the Veteran reported flare ups of the right knee that he described as sharp shooting pain in the knee joint. He also reported that his knee locks in the morning. With respect to functional loss, the Veteran reported he was unable to run or walk for prolonged periods of time. The examiner also noted that the Veteran was unable to stand or ambulate for extended periods of time. In the February 2020 VA examination, the examiner noted diagnoses of right knee degenerative joint disease with ligament deficits and right knee instability. On initial ROM testing of the right knee, flexion was from 0 to 135 degrees, and extension was from 135 to 0 degrees. Mild to moderate pain was noted on both flexion and extension and caused functional loss. There was objective evidence of pain on passive ROM. There was no evidence of pain with weight bearing and no objective evidence of crepitus. However, there was objective evidence of pain in the right knee in non-weight bearing. There was no additional loss of function or ROM after repetitive use testing. With respect to repeated use over time and flare ups, the examiner noted that pain significantly limits functional ability with repeated use over a period of time and flare ups. Specifically, in terms of ROM, flexion and extension are further limited from 0 to 125 degrees and 125 to 0 degrees respectively during repeated use over time and flare ups. Muscle strength testing was normal. The Veteran does not have muscle atrophy. The Veteran does not have ankylosis or a history of recurrent subluxation or recurrent effusion. The Veteran has not had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran did not have a meniscal condition. The examiner noted that the Veteran had slight right instability in the right knee, but the examiner noted there his slight instability caused no significant impairment of ROM. However, there was no evidence of joint instability on joint stability testing. The Veteran regularly uses a brace for locomotion due to his right knee condition. With respect to flare ups, the Veteran reported daily flare ups that are moderate in severity and last for hours. His flare ups occur when walking, bending, and standing for prolonged periods of time. With respect to functional loss, the Veteran reported that he experiences pain and stiffness in his right knee. The Veteran also reported he was unable to bend, walk, or stand for prolonged periods of time. Analysis Turning to the relevant evidence, as noted above, the Veteran is in receipt of a noncompensable rating from August 6, 1999 for his right knee DJD with ligament deficits under Diagnostic Codes (DCs) 5010-5260. The Veteran is also in receipt of a 10 percent rating from November 25, 2014 for right knee instability under DC 5257 from November 25, 2014. Based on the evidence above, the Board finds that for the entire appeal period from August 6, 1999 to April 28, 2005, a 10 percent rating is warranted for the Veteran’s right knee DJD with ligament deficits based on right knee pain under 38 C.F.R. § 4.59 for painful motion that is noncompensable under the limitation of motion provisions governing the knee joint. See 38 C.F.R. § 4.71a, DCs 5010-5260. Additionally, the Board finds that from April 28, 2005, a 20 percent rating based on functional loss is warranted for the Veteran’s right knee disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. In addition, with respect to right knee instability, the Board finds that a 10 percent rating for mild instability is warranted for the entire appeal period from August 2, 1999, to April 28, 2005, and that a 20 percent rating for moderate instability is warranted from April 28, 2005, for right knee instability under DC 5257. 38 C.F.R. § 4.71a, DC 5257. Prior to April 28, 2005 Prior to April 28, 2005, the Board finds that a 10 percent rating is warranted based on painful motion of the right knee. 38 C.F.R. §§ 4.59, 4.71a, DCs 5010-5260. Specifically, the evidence shows that, throughout the appeal period, he has complained of right knee pain. A higher rating is not warranted under DC 5010. While there is x-ray evidence of arthritis in the left knee and left foot prior to April 28, 2005, there is no evidence that the Veteran experienced occasional incapacitating exacerbations. A higher rating is also not warranted under DCs 5260 or 5261, as right knee flexion was not limited to 45 degrees or less and right knee extension was not limited to 10 degrees or more. During this period, right leg flexion was limited to 125 degrees at most, and the Veteran exhibited full extension. See, e.g., March 2004 VA examination. As the evidence does not show impairment of the tibia or fibula, genu recurvatum, or ankylosis of the right knee, DCs 5256, 5262, and 5263 are not applicable. 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. A higher or separate rating under DC 5258 is not warranted for the period prior to April 28, 2005, as no locking and no recurrent effusion was demonstrated in the record during this period. 38 C.F.R. § 4.71a, DC 5258. Nor is a higher or separate rating available under DC 5259. Under DC 5259, the highest available rating is a 10 percent disability rating. As to whether a separate rating is warranted, the evidence shows that had a right knee meniscectomy in 1975, and, throughout the appeal period, the Veteran has complained of right knee pain. Therefore, his right knee meniscectomy is “symptomatic.” However, his right knee pain is already contemplated in the 10 percent rating warranted based on pain. 38 C.F.R. § 4.71a, DC 5259. A rating in excess of 10 percent is also warranted for functional loss prior to April 28, 2005. While the Veteran reported right knee pain, the Veteran did not report additional functional loss due to his right knee disability for this period, and the examinations and treatment records do not reflect functional loss other than pain on motion or use, which is contemplated in the assigned 10 percent rating for this period. Given the above, the Board finds that a 10 percent rating based on right knee pain is warranted under 38 C.F.R. § 4.59, for functional loss due to painful motion prior to April 28, 2005. From April 28, 2005 However, from April 28, 2005, the evidence shows that the Veteran began to experience flare-ups in his right knee and, therefore, additional functional loss. Therefore, the Board finds that a 20 percent rating, but no higher, based on functional loss is warranted for the Veteran’s right knee condition from April 28, 2005. 38 C.F.R. §§ 4.40, 4.45, 4.59. A higher rating is not available under DC 5259, as a 10 percent rating is the highest available rating under DC 5259, and as discussed above, all his symptoms are addressed in the currently assigned rating. A higher rating is not warranted under DC 5010. While there is x-ray evidence of arthritis in the left knee and left foot, there is no evidence that the Veteran experienced occasional incapacitating exacerbations due to his arthritic bilateral knees or left foot. 38 C.F.R. § 4.71a, DC 5010. A higher rating is also not warranted under DCs 5260 or 5261, as right leg flexion was not limited to 45 degrees or less and right leg extension was not limited to 10 degrees or more. During this period, right leg flexion was limited to 125 degrees at most. 38 C.F.R. § 4.71a, DCs 5260, 5261. As the evidence does not show impairment of the tibia or fibula, genu recurvatum, or ankylosis of the right knee, DCs 5256, 5262, and 5263 are not applicable. 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. A higher or separate rating under DC 5258 is not warranted. In the September 2016 VA examination, the Veteran reported that his knee locks in the morning. However, this is the only evidence of the Veteran’s knee locking. Therefore, a separate 20 percent rating is not warranted under DC 5258, as locking is not “frequent” according to the evidence. 38 C.F.R. § 4.71a, DC 5258. Additionally, the Veteran’s current 20 percent rating being assigned compensates him for his pain and functional loss due to locking etc., thus, a separate rating under this provision is not warranted. With respect to functional loss, beginning with the April 2005 VA examination, the Veteran started to report additional functional loss beyond pain. In the April 2005 VA examination, he reported having to use a cane during flare ups of his knees. In the September 2016 VA examination, the Veteran reported he was unable to run or walk for prolonged periods of time. The examiner also noted that the Veteran was unable to stand or ambulate for extended periods of time. In the February 2020 VA examination, the Veteran reported that he was unable to bend, walk, or stand for prolonged periods of time. Therefore, based on these limitations due to functional loss, the Board finds that a 20 percent rating based on functional loss is warranted from April 28, 2005 for the Veteran’s right knee condition. Right Knee Instability As noted above, the Veteran is also in receipt of a 10 percent rating from November 25, 2014 for right knee instability under DC 5257. Based on the evidence above, the Board finds that a 10 percent rating is warranted from August 6, 1999, to April 28, 2005, and a 20 percent rating thereafter is warranted for right knee instability under DC 5257. 38 C.F.R. § 4.71a, DC 5257. For the period from August 6,1999, to April 28, 2005, the Board notes that the record shows that his ACL was loose on the right, he had pivot shift, and documented instability of the right knee. However, this evidence did not reveal that the instability was more than mild. Objective testing did not show instability in all facets, and the Veteran did not complain of instability or wear a brace during this period. Thus, a 10 percent rating, but no higher, is warranted for the period prior to April 28, 2005. 38 C.F.R. § 5257. From April 28, 2005, the record shows that the Veteran consistently wore a brace on his knee for stability. Accordingly, the Board finds that his instability of the knee was moderate given the need to wear a brace to stabilize the knee. 38 C.F.R. § 5257. However, at no point during the appeal period is a 30 percent rating warranted for right knee instability, as there is no evidence of recurrent subluxation or instability, or severe instability of the knee. The February 2020 VA examiner specifically noted that there was no evidence of recurrent subluxation or recurrent effusion in the right knee. In addition, the February 2020 VA examiner noted that the Veteran has not had recurrent patellar dislocation. While the Veteran did wear a brace, on objective stability testing throughout the appeal period, no instability or only mild instability were noted. Thus, a higher rating is not warranted under either the new or amended regulation. 38 C.F.R. § 4.71a, DC 5257 (2020); 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Conclusion In sum, the Board finds that a 10 percent rating prior to April 28, 2005 and a 20 percent rating thereafter for right knee DJD with ligament deficits is granted. With respect to right knee instability, the Board finds that a 10 percent rating for right knee instability prior to April 28, 2005, and a 20 percent rating thereafter for right knee instability is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.