Citation Nr: 21022782 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-42 179 DATE: April 19, 2021 ORDER Entitlement to an increased evaluation for limited motion of the right knee, currently rated as zero percent disabling before January 30, 2009, 10 percent disabling from January 30, 2009 to July 29, 2009, 100 percent disabling from July 29, 2009 to September 1, 2009, and as 10 percent since then, is denied. Entitlement to an increased evaluation for right knee instability, currently rated as 20 percent disabling since November 7, 2016, is denied. Entitlement to an increased evaluation for residuals of a right knee meniscal tear, currently rated as 10 percent disabling between January 20, 2009 and November 7, 2016 and as 20 percent disabling since then, is denied. Entitlement to an increased evaluation for a right knee scar, currently rated as zero percent disabling, is denied. FINDINGS OF FACT 1. Throughout the relevant appeal period, range of motion in the Veteran’s right knee has consistently been capable of full extension and more than 60 degrees of flexion, with painful motion. 2. Before November 17, 2016, it was not factually ascertainable that the symptoms of the Veteran’s service-connected knee disability included recurrent subluxation or lateral instability; since then, the symptoms of the right knee disability have most closely approximated moderate instability. 3. Throughout the appeal period, the Veteran has had a symptomatic semilunar cartilage condition, but, before November 7, 2016, the evidence weighed against a finding that the symptoms included frequent episodes of “locking”, pain, and effusion into the joint. 4. Throughout the appeal period, there has been a scar associated with the Veteran’s right knee disability, but the scar has not been painful or unstable. CONCLUSIONS OF LAW 1. Entitlement to an evaluation higher than 10 percent for limited motion of the right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. Before November 7, 2016 the criteria for a separate compensable evaluation for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. Since November 7, 2016, the criteria for an evaluation higher than 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. Before November 7, 2016, the criteria for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking”, pain and effusion into the joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DCs 5258, 5259. 5. The criteria for an increased (compensable) disability rating for a right knee scar have not been met. 38 U.S.C. § 1155, 5107, 38 C.F.R. § 4.118, DCs 7802, 7804, 7805 and 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to April 1996 and from September 2004 to November 2004. This case comes to the Board from a November 2009 decision of the Agency of Original Jurisdiction (AOJ), which increased the noncompensable (zero percent) rating previously assigned to the right knee disability to 10 percent, effective January 1, 2009. Between July 29, 2009 and September 1, 2009, the AOJ granted a temporary 100 percent rating for a period of post-surgical convalescence, resuming the 10 percent rating, effective September 1, 2009. The Veteran timely appealed the amount of this increase. In May 2011, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is of record. The Board remanded the right knee increased rating claim for further development in February 2013, June 2016, June 2017, April 2018, and most recently in March 2020. Rating Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings or the assignment of different disability evaluations for separate periods of time may be appropriate when the claimant has appealed the denial of a request for an increase in the rating previously assigned to a service-connected disability. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A Veteran with a service-connected knee disability may receive separate disability ratings for limited flexion, limited extension, instability, and for dislocation or removal of the meniscus or semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017); VAOPGCPREC 9-98; VAOPGCPREC 9-2004. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 (“Leg, limitation of flexion of”) indicates that a noncompensable (zero percent) rating is appropriate when flexion is limited to 60 degrees. A 10 percent rating is appropriate if flexion is limited to 45 degrees and higher ratings of 20 or 30 percent are authorized if flexion of the knee is limited 30 or 15 degrees, respectively. DC 5261 (“Leg limitation of extension of”) authorizes a noncompensable (zero percent) rating if extension is limited to 5 degrees. A 10 percent rating is appropriate when extension is limited to 10 degrees. DC 5261 authorizes progressively higher ratings corresponding to more severe levels of limited extension, the maximum being a 50 percent rating when extension is limited to 45 degrees. The AOJ assigned the Veteran a 10 percent rating for the right knee pursuant to the provision of 38 C.F.R. § 4.59, recognizing “actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” The minimum compensable rating authorized by this regulation is appropriate when there is pain or painful motion in the relevant joint, even if the joint is not actually limited or, if motion is limited, when motion is not limited to the extent required for a compensable rating by the relevant diagnostic code based on limited motion. See Petitti v McDonald, 27 Vet. App. 415, 425-26 (2015); Mitchell, 25 Vet. App. at 34. VA recently amended the criteria for rating knee instability. 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). These amendments apply only to claims pending as of February 7, 2021. Because the Veteran’s increased rating claim was pending on that date, the Board will consider both versions and, for the period since the effective date of the amendment, apply the criteria most favorable to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). But the Board may not apply the amended version of regulation prior to its effective date. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). The version of DC 5257 in effect until recently (February 7, 2021) authorized a 10 percent rating for recurrent subluxation or lateral instability which is “slight”, a 20 percent rating if it is “moderate”, or a 30 percent rating for “severe” recurrent subluxation or lateral instability. The amended version of DC 5257 is much more specific, with different criteria for patellar instability and for recurrent subluxation or instability. Under the new criteria, recurrent subluxation or instability involves either sprain, incomplete ligament tear, or complete ligament tear (whether repaired, unrepaired, or failed repair), and the impairment must result in persistent instability of the affected knee. For a 10 percent rating, there is no need for a prescribed brace or assistive device, such as a cane, crutch, or walker, but a prescription from a medical provider is required for the 20 and 30 percent ratings. The difference between the 20 and 30 percent ratings is that, for a 20 percent rating, the prescription need only be for either a brace or an assistive device. For a 30 percent rating, the prescription must be for both and the disability must be an unrepaired or failed repair of a complete ligament tear. Patellar instability is defined as a diagnosed condition involving the patellofemoral complex and must result in recurrent instability. Note (1) to the new criteria define the patellofemoral complex as “the quadriceps tendon, the patella, and the patellar tendon.” 85 Fed. Reg. at 76,463. For patellar instability, new DC 5257 likewise authorizes 10, 20, and 30 percent ratings, differentiated by the type of impairment and whether a medical provider has prescribed a brace or assistive device. A 10 percent rating does not require a history of surgical repair or a prescribed brace, cane, or walker. A 20 percent rating requires surgical repair and a prescription for either a brace, cane, or walker, while a 30 percent rating requires surgical repair and a prescription for a brace and either a cane or a walker. A second note to this section clarifies that the surgery contemplated by the patellar instability criteria is specifically to repair one or more patellofemoral components; the note disqualifies arthroscopy to remove loose bodies and joint aspiration as surgical repair for patellar instability. Id. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the knees, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing. . . .” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA examiners also have the duty to elicit information from the Veteran describing the condition of the relevant joints after repeated use over time and during “flare-ups” or episodes when the relevant symptoms are at their worst. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Factual Background VA first granted service connection for a right knee sprain in June 1996, assigning an initial disability rating of zero percent, effective April 2, 1996. This case has been pending since the Veteran filed an increased rating claim for his right knee in January 2009. Except for the period in which a temporary 100 percent rating was assigned for a period of post-surgical convalescence (July 29, 2009 to September 1, 2009), this decision will analyze the evidence concerning the right knee from January 2009 to the present. Because the Veteran has been assigned a total disability rating between July 29, 2009 and September 1, 2009, the increased rating claim for that portion of the appeal period is moot. Cf. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) The AOJ arranged a general VA examination in April 2009. The examiner’s report indicates that the Veteran’s right knee injury had become “progressively wore” and that he was planning to have surgery later in the year. Right knee flexion was between zero and 100 degrees (140 degrees is normal). The Veteran was capable of repetitive use testing of the right knee and range of motion remained the same after three repetitions. According to the examiner, there was no instability. Likewise, the right knee did not exhibit patellar abnormality, “locking”, effusion, or dislocation. There was evidence of a meniscus injury. According to a September 2010 VA primary care note, a physician assistant measured range of motion in the knees at that time. According to the note, both knees were capable of zero degrees extension to 120 degrees flexion. There was tenderness over the medial aspect of both knees, but there was no swelling and the note indicates “good” stability of the knees. As noted, the Veteran testified at a hearing in May 2011. At the hearing, the Veteran said that he was working as a medical support assistant at a VA medical center, where he was required to be on his feet most of the time. The Veteran also criticized the thoroughness of the previous examination, indicating that the examiner did not use any instruments to measure range of motion. The Veteran said that he mentioned instability to the examiner. When he was asked whether his right knee would ever “lock in place . . . where you can't bend it at all?” he responded that he had experienced episodes of locking. He said that, “it doesn’t happen a lot, but occasionally it does.” When asked if his knee would ever “give way on you completely when you take a step?” he first said, “No.” But then he said that “giving way” does occasionally happen. According to the Veteran, the recent treatment of his right knee injury consisted of cortisone shots approximately every three or four months. The Veteran visited his VA orthopedic surgeon in May 2011. According to the surgeon’s note, both knees were capable of full range of motion. The Lachman and McMurray tests of joint instability were negative. In May 2013, the AOJ arranged another VA knee examination. The medical history section of this report summarized complaints of “pain, stiffness, feels weak, gives way, unstable, and swells.” For the right knee, the examiner’s report indicates diagnoses of medial collateral ligament strain, torn meniscus, and degenerative joint disease. Right knee range of motion was from zero degrees extension to 125 degrees flexion. The right knee remained capable of repetitive use testing and there were no further limits to range of motion after three repetitions. Functional loss in the right knee consisted of less movement than normal and pain on movement. Muscle strength of the right knee was normal (5/5). The examiner performed joint stability tests designed to detect anterior (Lachman test), posterior (posterior drawer test), and medial-lateral instability. According to the examiner, for both knees, all of the joint stability test results were normal. The examiner further indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The May 2013 report acknowledged the Veteran’s past meniscectomy. According to the examiner, the symptoms associated with the right meniscus condition were meniscal tear and frequent episodes of joint pain. By leaving blank the boxes on the questionnaire next to pre-printed text listing frequent episodes of “locking” and frequent episodes of joint effusion, the examiner indicated that the Veteran did not frequently experiencing locking or joint effusion of the right knee. The May 2013 examiner identified a scar associated with the Veteran’s right knee condition, but the scar was not painful or unstable. Nor did the scar have a total surface area greater than 39 square centimeters (6 square inches). The May 2013 examination took place before the Sharp decision clarified the duty of examiners to estimate range of motion during flare-ups or after repeated use over time. But at least with respect to repeated use over time, the examiner essentially complied with Sharp on part 14(b) of the questionnaire, which asked the examiner to identify other pertinent physical findings, signs, or symptoms related to the diagnosis. The examiner wrote that, “Range of motion of the right knee under load significantly diminishes, [the Veteran] develops knee pain at 90 [degrees] of flexion, with repetitive use under load range of motion is 0-110 [degrees] flexion.” The examiner wrote that the Veteran occasionally used a cane and regularly used a brace for assistance with ambulation. In describing the functional effect of the right knee disability, the examiner wrote that, in combination with the Veteran’s ankle injury, the knee disability prevented prolonged weightbearing and repetitive use activities. Ambulation was limited to less than one quarter of a mile and the Veteran was advised to avoid uneven terrain, steep slopes, and the use of ladders higher than two or three feet. In the “remarks” section of the May 2013 report, the examiner quoted a consultation note from the Veteran’s orthopedic surgeon, dated February 2013, which indicated a horizontal meniscus tear, degenerative changes, and varus deformity of the right knee. But the surgeon wrote that the Veteran had “full range of motion, no effusion, [and] no instability. . . .” The examiner further indicated that, due to pain during repetitive use, the Veteran’s knee disability “can cause an additional loss of flexion of 10 degrees.” In response to statements from the Veteran’s representative indicating that the right knee disability had worsened in severity, the Board remanded this appeal for a new examination in June 2016. The AOJ arranged a new knees examination in November 2016. The medical history section of the examiner’s report indicates that the Veteran “has locking but does not have [the knee] go out on him.” He told the examiner that his knee “locks up” when he sits for more than 20 to 30 minutes without changing positions. Range of motion in the right knee was normal (zero degrees extension to 140 degrees flexion). There was no additional loss of motion after three repetitions. The examiner declined to estimate of range of motion after repeated use over time, indicating that the requested estimate would require speculation. Muscle strength was normal (5/5) with both right knee flexion and extension. There was no muscle atrophy or ankylosis of the knees. According to the examiner, there was no history of recurrent subluxation or lateral instability. But there was right knee joint instability after testing. Anterior instability (Lachman) and posterior instability (drawer) test results were normal. But the results of testing for both medial and lateral instability were positive. According to the examiner, the approximate level of both medial and lateral instability were 2+, that is, between 5 and 10 millimeters. The examiner described the symptoms of the meniscal condition as frequent episodes joint locking and joint pain in the right knee. The examiner also measured the Veteran’s right knee scar, which was 7.5 centimeters long and 0.5 centimeters wide. In describing the functional impact of the right knee disability, the examiner advised avoiding lifting objects weighing more than 20 pounds, avoiding deep squats, steep stairs, and to limit walking to 1/4 mile and standing to 5 minutes. According to the examiner, the laxity/instability in the Veteran’s knee “suggests deconditioning and the potential for essentially normal function with adequate physical therapy.” In June 2017, the Board remanded the right knee claim for a new examination because the November 2016 report failed to comply with 38 C.F.R. § 4.59, Correia, and Sharp. The April 2018 and March 2020 remands requested additional examinations because of similar problems with the adequacy of subsequent medical reports. In spite of the weaknesses noted in these remands, there is information in the related examination reports, dated August 2017, February 2019, and February 2020, which is relevant to the right knee increased rating claim. The August 2017 report indicates normal range of motion of the right knee (zero degrees extension to 140 degrees flexion). Pain was present during both movements. But range of motion remained normal after repetitive use testing. The examiner wrote that the Veteran did not report flare-ups of his right knee symptoms. Contrary to Sharp, the examiner declined to estimate range of motion after repeated use over time. Muscle strength in both knees remained normal (5/5). Unlike the November 2016 report, the August 2017 report indicates that the results of tests for anterior, posterior, medial, and lateral instability of the right knee were normal. According to the August 2017 examiner, the Veteran did not have joint instability in either knee. With respect to the meniscus condition, the examiner indicated meniscal tear and frequent episodes of joint pain, but not locking. The next examination took place in February 2019. According to the examiner’s report, right knee extension was normal (zero degrees) but flexion was limited to 130 degrees (140 degrees is normal). According to the examiner, no pain was noted during the initial range of motion test of the right knee. Likewise, there was no pain when the right knee was used in weight bearing. The right knee was capable of repetitive use testing without additional loss of range of motion. Muscle strength test results were normal (5/5). The February 2019 examiner repeated the error of the August 2017 examiner by failing to estimate range of motion after repeated use over time. But the examiner indicated that the Veteran did not report flare-ups of right knee symptoms. The February 2019 examiner also administered tests of anterior, posterior, medial, and lateral joint instability for both knees. According to the examiner, there was no joint instability. With respect to the Veteran’s right knee meniscal condition, the examiner identified symptoms of meniscal tear with frequent episodes of joint pain. The examiner left blank the box next to pre-printed text indicating frequent episodes of “locking” and the box indicating frequent episodes of joint effusion. As for the testing methods described in 38 C.F.R. § 4.59, the examiner indicated that passive range of motion was the same as the measurement identified in the initial range of motion test. But the examiner failed to indicate the results of range of motion testing, in degrees, during weight bearing and in non-weight bearing. The next examination report, dated February 2020, indicated normal range of motion in the right knee. Range of motion remained normal after three repetitions and the Veteran did not report experiencing flare-ups. Correcting one problem with the previous report, the February 2020 examiner estimated that, after repeated use over time, extension would remain normal (zero degrees) and flexion would be limited to 120 degrees. Muscle strength in both knees remained normal (5/5). There was no muscle atrophy and no ankylosis. But unlike her predecessor, the February 2020 examiner indicated that there was right knee joint instability. The results of anterior and posterior joint instability were normal. But the report identified both medial and lateral instability. The examiner assessed both medial and lateral instability as 1+ (between zero and 5 millimeters). Like the earlier examiner, the February 2020 examiner indicated a meniscal tear with frequent episodes of joint pain. But there were no episodes of locking or joint effusion. The Board issued its most recent remand because, although the February 2020 examiner indicated whether pain was present during each of the testing methods required by 38 C.F.R. § 4.59, she did not indicate the range of motion test results, in degrees, for each of these tests. Since the most recent Board remand, the AOJ arranged two examinations. The first report, dated August 2020, indicated normal right knee range of motion. There was pain with extension, but not during flexion. There was no loss of motion after three repetitions. The Veteran described flare-ups, in which each knee “lock from time to time and the locking does not release for several hours.” The examiner estimated that, after repeated use over time, range of motion in both of the knees would remain normal. But during flare-ups the examiner estimated that motion would be limited between 39 degrees extension and 40 degrees flexion. All right knee joint stability test results were normal and, according to the examiner, there was no right knee instability. The examiner indicated that the symptoms of the Veteran's meniscal condition were frequent episodes of joint “locking”, frequent episodes of joint pain, and frequent episodes of joint effusion. Like most of the earlier examiners, the August 2020 examiner indicated whether the Veteran experienced pain during the testing methods required by 38 C.F.R. § 4.59, but she did not indicate the results in terms of degrees of flexion and extension. The AOJ requested a clarification from the August 2020 examiner concerning the meaning of her estimate that, during flare-ups, the Veteran’s right knee would likely be capable of only one degree of range of motion (39 degrees extension to 40 degrees flexion). The examiner provided this response: “[the Veteran’s] knee essentially locks any [sic] cannot move it in any direction during a flare up. This is very common with meniscus conditions. The knee locks and it won’t move in any direction until it unlocks. He showed me the degrees that he locks and the degrees were estimated at 39 to 40 [degrees]. Which is why I put down is only one degree of range of motion because [his] knee essentially does lock during a flare up. However, when the veteran does not have locking of the knee the range of motion is within normal limits with weight bearing. Flexion (0 -140 degrees) Extension (140-0 degrees).” The most recent examination took place in November 2020. The medical history section of the examiner’s report, indicates that “[the Veteran] now has pain with negotiating uneven surfaces and at times the knee will lock on him and cause trouble with extension.” According to the examiner, the Veteran did not report flare-ups concerning his right knee. He described functional loss as “difficulty with negotiating uneven surfaces and weight bearing and at times locking of the knee.” Right knee range of motion was normal. Pain was noted with both flexion and extension and there was evidence of pain with weight bearing. Range of motion remained normal after three repetitions. The examiner estimated that, due to pain, flexion would be reduced to 120 degrees after repeated use over time while extension would remain normal. Muscle strength in both knees was normal with both flexion and extension. The examiner wrote that there was no history of recurrent subluxation in either knee. There was a history of slight lateral instability in the right knee and a history of recurrent effusion. When asked to describe recurrent effusion, the examiner wrote, “slightly swelling chronically that worsens with prolonged activity.” Test results for anterior and posterior instability were normal. But the examiner indicated that the Veteran had both medial and lateral instability. In assessing the severity of both medial and lateral instability, the examiner assessed the level of instability at as 1+ (zero to 5 millimeters). The examiner noted a meniscal tear of the right side “with repair but persistence of symptoms and associated episodes of joint locking but I would not classify [these episodes] as ‘frequent’.” According to the November 2020 examiner, the Veteran did not use any assistive devices. His patellar scar was one centimeter long and 0.1 centimeter wide. It was neither painful nor unstable. Asked to describe the functional impact of the right knee disability, the examiner indicated, “painful weight bearing and difficulty on uneven surfaces.” As for the testing methods specified in 38 C.F.R. § 4.59, the examiner wrote that range of motion during non-weightbearing was between zero degrees extension and 120 degrees flexion. The examiner did not perform testing in weightbearing because the test would require the Veteran to squat, which would likely cause further discomfort. During passive motion, the Veteran’s right knee range of motion was also between zero degrees extension and 120 degrees flexion. Analysis As a preliminary matter, the Board finds that the November 2020 examination report, together with the other evidence, is adequate to decide the increased rating claims and that the AOJ substantially complied with the March 2020 remand instructions. The examiner provided estimates of the probable range of motion in the Veteran’s right and left knees after repeated use over time. The examiner complied with Correia by indicating the range of motion, in degrees, in both knees, during all of the testing methods required by 38 C.F.R. § 4.59 or, in the case of range of motion testing in weightbearing, by explaining why the requested test was not performed. The Board has considered whether to assign a higher rating for limited motion of the right knee under DC 5260 and DC 5261 based on the August 2020 examiner’s estimate that, during flare-ups, range of motion in the right knee would be limited to one degree of motion between 39 degrees extension and 40 degrees extension. A precedential opinion of VA’s General Counsel, VAOGCPREC 9-04, authorizes simultaneous ratings under DCs 5260 and 5261 when motion in the knee is limited to a compensable degree in both flexion and extension. Thus, if the symptoms of the Veteran’s right knee disability most closely approximated the degree of limited motion estimated by the August 2020 examiner during flare-ups, DC 5260 and DC 5261 would authorize simultaneous ratings of 10 percent for limited flexion and 50 percent for limited extension. But it is clear from the September 2020 addendum opinion that, when making this estimate, the August 2020 examiner was referring to the episodes of “locking” for which the Veteran has already been assigned a 20 percent rating under DC 5258. The Board finds that rating these symptoms under DC 5258 is most consistent with the evidence in this case because, according to the medical records and the examination reports, the range of motion in the Veteran’s right knee has usually been normal or close to normal. It is only during these temporary episodes of “locking” that range of motion of the right knee approximates the criteria for simultaneous ratings under both DC 5260 and DC 5261. His previously assigned rating under DC 5258 already compensates the Veteran for these locking episodes. To assign simultaneous 10 and 50 percent ratings under DCs 5260 and 5261 would overcompensate the Veteran because it would assign the same rating to him as for a Veteran whose knee motion is permanently limited to one degree between 39 degrees extension and 40 degrees extension. The Board finds that the previously assigned 10 percent rating for the right knee under 38 C.F.R. § 4.59 is appropriate to compensate the Veteran for both painful flexion and painful extension. The Board can find no authorization for simultaneous 10 percent ratings for painful, but not limited, extension and flexion under 38 C.F.R. § 4.59. Such an arrangement is inconsistent with the text of the regulation, which refers to one minimal compensable rating “for the joint.” If the regulation authorized a compensable rating for each painful motion contemplated by “a relevant diagnostic code” then it is likely that such a rating would be authorized. But 38 C.F.R. § 4.45(f) defines the knee as one joint, albeit a major one. Two 10 percent ratings for painful flexion and extension would also be inconsistent with the authorization for a “minimum compensable rating” for the joint because such a rating would consist of two 10 percent ratings – more than the minimum degree of compensation for a service-connected disability authorized by the Rating Schedule. Instead, the Veteran’s 10 percent ratings for both knees were assigned pursuant to the provision of 38 C.F.R. § 4.59, which recognizes “actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint” Id. The minimum compensable rating authorized by this regulation is appropriate when there is pain or painful motion in the relevant joint, even if the joint is not actually limited or, if motion is limited, is not limited to the extent required for a compensable rating by a diagnostic code based on limited motion. See Petitti, 27 Vet. App. at 425-26; Mitchell, 25 Vet. App. at 34. The Board has considered moving forward the effective dates assigned to the disability ratings assigned for joint instability under DC 5257 and for meniscal tear with locking under DC 5258. But it is not factually ascertainable that the Veteran’s right knee symptoms most closely approximated joint instability or meniscal tear with frequent episodes of locking before November 7, 2016. As noted, there was no instability at the time of the April 2009 or May 2013 examinations. According to both examination reports, all joint stability tests were normal. The September 2010 primary care note described the Veteran’s knee joint stability as “good” and the February 2013 orthopedic surgeon’s note likewise indicates that there was no knee instability. The Board has carefully reviewed the Veteran’s VA treatment notes immediately before the November 2016 examination. But none of the notes indicate the existence of right knee joint instability or episodes of frequent “locking” or effusion into the joint. At the hearing, the Veteran suggested that he occasionally experienced both “giving way” and “locking” but he clearly indicated that these symptoms did not “happen a lot.” In other words, prior to November 2016, his right knee symptoms did not most closely approximate either moderate right knee instability or meniscal tear with frequent episodes of locking with effusion into the joint. For the period before November 2016, the Veteran’s symptoms of meniscal tear with frequent episodes of pain (but without frequent “locking” or frequent effusion in to the joint) are most appropriately compensated by his previously assigned 10 percent rating under DC 5259 for symptomatic removal of the semilunar cartilage. After November 2016, the Board finds that the preponderance of the evidence weighs against a rating in excess of 20 percent for right knee instability under the old version of DC 5257. The evidence likewise weighs against a finding that his symptoms satisfied the criteria for a 20 percent rating under the amended criteria after February 7, 2021. See Kuzma, 341 F.3d at 1328-29; 85 Fed. Reg. at 76,463. Multiple post-November 2016 examination reports indicated that no right knee joint instability was present. The November 2016, February 2020, and November 2020 examiners performed four separate tests of joint stability on the right knee (anterior, posterior, medial, and lateral). Only the medial and lateral instability tests produced an abnormal result and, except for the November 2016 report, all the examiners who noted joint instability identified the extent of the instability as 1+ (0 to 5 millimeters), which is the least severe level of instability among the three choices listed in the questionnaire. There were also times – for example, the August 2017, February 2019, and August 2020 knee examinations– when the results of all four joint instability tests were normal. This evidence does not support a finding that the Veteran is eligible for a 30 percent rating for severe instability under former DC 5257. As for the revised criteria, whether the knee instability is properly understood as patellar instability or recurrent subluxation, a 30 percent rating requires a prescription from a medical provider for both a brace and either a cane or a walker. Although the Veteran has occasionally used assistive devices for help with ambulation, there is no evidence that his medical provider has specifically prescribed the use of both a brace and a cane or a walker. The Board has also considered the possibility of assigning a higher rating for the right knee scar. Both before and after the recent amendments to 38 C.F.R. § 4.118, DC 7804 (“Scar (s) unstable or painful”) authorized a 10 percent rating for one or two scars that are unstable or painful. Higher ratings may be assigned if a greater number of scars are painful or unstable. Note (1) to DC 7804 indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) indicates that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. The VA examiners who have discussed the Veteran’s right knee scar have consistently described it as neither painful nor unstable. Likewise, there is nothing in the Veteran’s written statements or hearing testimony suggesting that he is eligible for a higher disability rating for his right knee scar. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of his increased rating claim. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). For the reasons above, the preponderance of the evidence is against a finding that his right knee disability has satisfied the relevant criteria for a higher rating at any point during the appeal period. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.