Citation Nr: 21022864 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-14 529 DATE: April 19, 2021 ORDER Prior to August 2, 2017, an initial evaluation in excess of 10 percent for degenerative arthritis, right knee, is denied. Prior to November 1, 2017, an initial evaluation in excess of 10 percent for degenerative arthritis, left knee, is denied. Prior to August 2, 2017, a separate evaluation of 10 percent for right knee instability is granted. Prior to November 1, 2017, a separate evaluation of 10 percent for left knee instability is granted. Since October 1, 2018, an initial evaluation greater than 30 percent for right knee arthritis following right total knee replacement is denied. Since January 1, 2019, an initial evaluation greater than 30 percent for left knee arthritis following left total knee replacement is denied. Since October 1, 2018, a separate compensable evaluation for right knee instability is denied. Since January 1, 2019, a separate compensable evaluation for left knee instability is denied. FINDINGS OF FACT 1. Prior to August 2, 2017, the Veteran’s right knee arthritis was manifested by no worse than arthritis with pain on motion, and separate and distinct symptoms of slight joint instability. 2. Prior to November 1, 2017, the Veteran’s left knee arthritis was manifested by no worse than arthritis with pain on motion, and separate and distinct symptoms of slight joint instability. 3. Since October 1, 2018, the Veteran’s right knee arthritis following right total knee replacement is manifested by intermediate degrees of residual weakness, pain of limitation of motion. 4. Since January 1, 2019, the Veteran’s left knee arthritis following left total knee replacement is manifested by intermediate degrees of residual weakness, pain of limitation of motion. 5. Since October 1, 2018, the Veteran’s right knee arthritis following right total knee replacement is not manifested by instability in the joint. 6. Since January 1, 2019, the Veteran’s left knee arthritis following left total knee replacement is not manifested by instability in the joint. CONCLUSIONS OF LAW 1. Prior to August 2, 2017, the criteria for an initial evaluation in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5003-5260. 2. Prior to November 1, 2017, the criteria for an initial evaluation in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71, 4.71a, Diagnostic Code 5003-5260. 3. Prior to August 2, 2017, the criteria for a separate evaluation of 10 percent for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. 4. Prior to November 1, 2017, the criteria for a separate evaluation of 10 percent for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. 5. Since October 1, 2018, the criteria for an initial evaluation in excess of 30 percent for right knee arthritis following right total knee replacement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71, 4.71a, Diagnostic Code 5055. 6. Since January 1, 2019, the criteria for an initial evaluation in excess of 30 percent for left knee arthritis following left total knee replacement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71, 4.71a, Diagnostic Code 5055. 7. Since October 1, 2018, the criteria for a compensable evaluation for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. 8. Since January 1, 2019, the criteria for a noncompensable evaluation for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1966 to November 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a March 2019 hearing at the RO held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the electronic claims file. Service connection for degenerative arthritis of the right and left knees was granted in the March 2016 rating decision on appeal, and 10 percent evaluations were assigned for each knee, effective October 28, 2015, under Diagnostic Code 5003-5260. Hyphenated diagnostic codes are used to identify the diagnosed condition (first Code) and identify the criteria used to establish the evaluation (second Code). 38 C.F.R. § 4.27. During the pendency of the appeal, increased evaluations have been granted, including one-year periods of convalescence following total knee replacement surgery for each knee. The right knee was assigned 10 percent from October 28, 2015 to August 1, 2017; a 100 percent evaluation from August 2, 2017 to September 30, 2018; and a 30 percent evaluation under Diagnostic Code 5055 beginning October 1, 2018. The left knee was assigned 10 percent from October 28, 2015 to October 31, 2017; a 100 percent evaluation from November 1, 2017 to December 31, 2018; and a 30 percent evaluation under Diagnostic Code 5055 beginning January 1, 2019. The Veteran has not appealed the dates that he was awarded temporary total evaluations based on convalescence following surgery. Accordingly, the Board does not have jurisdiction over these periods and the findings will not be disturbed. The characterization of the issues above reflects this in identifying the time periods under consideration; the descriptions of the disability involved in each period have also been adjusted for purposes of clarity. This matter was previously before the Board in April 2019, at which the Board remanded the issues for additional development. Examinations were completed in both December 2019 and December 2020 and additional VA treatment records were associated with the claims file. The claim is once again before the Board. Substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). A claim of total disability based on individual unemployability (TDIU) has not been raised by the Veteran or the record. Review of the Veteran’s VA treatment records reveals the Veteran became unemployed in October 2005 due to a nonservice-connected hip replacement surgery. While he asks for a 100 percent rating regarding his knees, he has not intimated that they cause him to be unemployable. Accordingly, TDIU is not inferred. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to notify and assist was satisfied by notices included in the VA Form 21-526EZ used to initiate the claim and acknowledged by the Veteran in his October 2015 claim. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. The Veteran has made contentions regarding the inadequacy of examinations and failure to provide him with copies of evidence referenced in the January 2021 supplemental statement of the case (SSOC). However, the purpose of the SSOC was to provide the sought notice, and the evidence referenced in the SSOC is contained in the Veteran’s claims file; medical records are not generally provided to a Veteran unless they are specifically requested. Notably, in March 2021, the Veteran was provided a copy of his entire claims file. Additionally, although the Veteran contends that the measurements taken during the December 2020 examination were grossly incorrect, there is no evidence to support a finding that this examination was not performed correctly. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. The Board finds that the presumption of regularity has not been rebutted. The VA examination reports require the examiner to indicate where range of motion ends and where objective painful motion begins. There is no indication in the report that these findings are inaccurate or fictitious. Accordingly, the examination is sufficient. Accordingly, appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran’s representative has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All of these potentially applicable Codes have been considered. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during 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). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Board finds, however, that the substance of the applicable Codes has not changes. Codes 5003, 5260, and 5261 are the same before and after February 7, 2021, with regard to their criteria. Code 5055, for knee replacement, has changed to the extent it refines the description of the covered disability, and shortens the period of temporary total evaluation following surgery. As that is less favorable to the Veteran, and no surgery has taken place since the effective date, the amendments will not apply. The criteria for evaluation following the period of total rating are unchanged. Codes 5258 and 5259, involving meniscal injuries, have not been amended, and are not involved in the rating of the knees here, as is discussed further below. While Code 5257, for subluxation and instability, has changed substantially, the manifestations it relates to are not present in the Veteran since his respective bilateral total knee replacement surgeries. This will be discussed further below. Diagnostic Code 5003 assigns evaluations for degenerative arthritis, substantiated by X-ray findings. The rating criteria for degenerative arthritis provides that when the limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5003. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Under this Diagnostic Code, the Veteran was awarded separate 10 percent evaluations for each knee, rather than a 20 percent evaluation considering knee joints, in order that he might receive a combined evaluation in excess of 20 percent. Under Diagnostic Code 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. Following his total knee replacement surgeries, the Veteran is evaluated under Diagnostic Code 5055. After the period of total evaluation, not under appeal here, period, a 30 percent minimum evaluation is assigned. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (tibia and fibula impairment) if they provide for a rating greater than the 30 percent minimum under Diagnostic Code 5055. A maximum 60 percent evaluation is awarded for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Under Diagnostic Code 5257, prior to February 7, 2021, slight impairment is assigned for a 10 percent rating, moderate impairment for a 20 percent rating, and severe impairment for a 30 percent rating. Following February 7, 2021, for recurrent subluxation or lateral instability, a 10 percent evaluation is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent evaluation is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The words "intermediate" and "severe" or “slight” and “moderate” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than apply a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although not an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Evidence In VA treatment records from March 2015, no effusion was identified. Patellar-femoral pain with patellar compression was noted, with tender medial and lateral joint lines. In VA treatment records from July 2015, the Veteran reported that he has trouble walking long distances and that he had a “giving way” sensation in the knee. He reported using a brace on his right knee, and that he would like one for his left. He also expressed interest in obtaining a cane. At this time, a right knee x-ray showed that the Veteran had severe degenerative osteoarthritis with medial subluxation of the femur on tibia. A left knee x-ray showed mild to moderate osteoarthritis with preserved joint space and bone spurring. VA treatment records from September 2015 showed bilateral use of braces for stability. The Veteran reported going to the gym three times a week and feeling better immediately after this, but then tightening up soon after. He reported being unable to walk daily due to pain, and that his pain is relieved temporarily in a warm bath. Upon physical examination, crepitation was noticed in the joint line, medial, and lateral for both knees. Mild stiffness was found with extension. Several days later, he was again seen at the VA facility for evaluation of his knees. He reported significant pain, in the right more than the left, for some time. He reported increasing pain and instability in the right knee and increasing pain in the left. Upon examination, his right knee was found to be in mild valgus, and his left knee in mild-moderate valgus. He was minimally tender around the medial and lateral joint lines in both knees, with crepitus noted in the right. Active range of motion was tested in both knees, revealing 5 degrees on extension and 110 degrees on flexion in the right knee; no limitation on extension and 120 degrees of flexion in the left knee. The knees were described as “stable to valgus/varus” in both knees, with positive anterior drawer on the right knee and normal on the left. 5/5 strength was evidenced in both knees. It was noted that x-rays from May 2013 were reviewed, which showed severe degenerative joint disease in the right knee, with lateral subluxation of the tibia, nearly complete loss of joint space, and marked osteophytes. X-rays were completed in November 2015. The right knee findings showed further increased severe joint space loss. Extensive subchondral sclerotic changes were noted; osteophytosis were seen. Severe patellofemoral joint space narrowing seen. Left knee findings showed increased marked lateral joint space narrowing. Moderate osteophytes of the tibial plateau and femoral condyle were present. Increased patellofemoral joint space narrowing and osteophytes were also noted. The impression showed increased very severe right knee arthritic changes. Increased moderate severe arthritis changes to the left knee were also shown. In March 2016, the Veteran was afforded a VA knee and lower leg condition examination. The examiner noted that the Veteran reported constant pain in both knees at a pain scale of 10/10; taking Tramadol and Motrin daily; receiving pain injections with minimal relief; and that bilateral knee replacements had been recommended by his provider. The Veteran did not report flare-ups but reported functional loss or impairment of the joint or extremity, including but not limited to repeated use over time. He described this functional loss or impairment as “constant pain, minimal activity.” Upon physical examination, the Veteran displayed 90 degrees on flexion and normal extension in his right knee. Range of motion itself does not contribute to functional loss. He exhibited pain on flexion and pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Objective evidence of crepitus was displayed. The Veteran displayed 100 degrees on flexion and normal extension in his left knee. Range of motion itself does not contribute to functional loss. He exhibited pain on flexion and pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Objective evidence was crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions on both the right and knee without any additional functional loss or range of motion after three repetitions. The examiner noted that the Veteran was examined immediately after repetitive use over time, but that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. No response was provided as to flare-ups, as they were not reported. The examiner identified additional contributing factors of disability for both left and right knees as less movement than normal due to ankylosis, adhesions, etc., interference with sitting, interference with standing, and constant pain. Muscle strength was 4/5 on forward flexion and extension for both the left and right knee. Reduction in muscle strength was noted, and such reduction was entirely due to the claimed conditions. The Veteran was not found to have muscle atrophy. No ankylosis was identified on either the left or right knee. The examiner did not identify any history of recurrent subluxation, lateral instability, or recurrent effusion on either knee. Joint stability testing was completed for both knees but was not evidenced on either knee. The Veteran was not found to have recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran was not found to have or have ever had a meniscus (semilunar cartilage) condition. The examiner noted that the Veteran constantly used braces and canes. Diagnostic testing showed degenerative arthritis on both knees. Regarding functional impact, the examiner stated that the Veteran is in constant pain, unable to walk for any long distance, that physical activity is limited, and that the Veteran would have impaired ability to function in a physical environment. In April 2016 correspondence from the Veteran, he stated that he is unable to walk any distance without the help of an electric mobility scooter. He reported inability to perform any normal maintains or repairs to his home and total dependence on others to complete tasks and to sustain life. In VA treatment records from July 2016, the Veteran received additional treatment for his knees. It was noted that he had tricompartmental knee arthritis and had been receiving steroid injections in his knees. It was noted that the Veteran wanted two knee replacements, as both knees were in significant pain and steroid injections would only give him relief for about three weeks. Crepitus was noted with range of motion, and the medial joint line had tenderness bilaterally. The knees were stable to varus/valgus stress. Range of motion testing revealed 10 degrees on extension and 120 degrees on flexion in the right knee and 5 degrees on extension and 120 degrees on flexion in the left knee. The Veteran underwent total knee replacement in the right knee on August 2, 2017 and total knee replacement in the left knee on November 1, 2017. He received a year of 100 percent evaluation for convalescence for each respective knee after which time 30 percent minimums were awarded. During the March 2019 Board hearing, the Veteran described his current knee symptoms. He reported that he is unable to walk without his cane and that he has “no stability.” He stated that he cannot walk upstairs or downstairs, and that he is experiencing pain and stiffness. He stated that his pain level is always a 10/10 unless he takes medications. He described that if he has prolonged standing, for longer than two minutes, the pain is so intense that he must sit down. He described it as constantly irritating him, such that he can’t go shopping because it requires long distance walking. He reported that he did not have any cartilage left his in his knees. He stated that his knees buckle, and that he has fallen at times. He also reports locking in the knee. The Veteran was afforded a VA knee and lower leg examination in December 2019. He reported bilateral knee pain on a regular basis, exacerbated by prolonged walking or standing and descending stairs. He reported use of a cane for ambulation and treatment of bilateral knee pain with Tramadol as needed. The Veteran did not report flare-ups or functional loss or functional impairment of the joint or extremity. Upon physical examination, the Veteran evidenced extension limited to 10 degrees on extension and 100 degrees on flexion on the right knee. This abnormal range of motion itself was found to contribute to functional loss. Pain was evidenced on both extension and flexion. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted. There was evidence of pain with weight bearing, but no objective evidence of crepitus. The Veteran evidenced extension limited to 10 degrees on extension and 110 degrees on flexion on the left knee. Pain was evidenced on both extension and flexion. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted. There was evidence of pain with weight bearing, but no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions on both knees, with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time, and the examination was determined to be neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time, and that there would be no anticipated additional functional loss. The examination was also no conducted during a flare-up, and the examination was determined to be neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups, as the Veteran did not report experiencing flare-ups. These determinations applied to both knees. No muscle strength reduction or muscle atrophy was identified for either knee. Ankylosis was not identified. No history of recurrent subluxation, lateral instability, recurrent effusion was noted. Stability testing was performed for each knee; no instability was found. No recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or tibial/fibular impairment, or meniscus conditions were identified. There was no indication that the Veteran used an assistive device, although it was noted in the medical history section that he used a cane for ambulation. Regarding functional impact, the examiner stated that the Veteran’s bilateral knee conditions limit his capacity for strenuous activities such as running, kneeling, and squatting. For both knees, objective evidence of pain was found when used in non-weight bearing. However, the passive range of motion was the same as when it was measured on active range of motion. The Veteran was afforded an additional VA knee and lower leg examination in December 2020. Current symptoms were described as bilateral knee stiffness, intermittent pain and limited range of motion, and weakness in the bilateral knees. Following his total knee replacements, his treatment includes Tramadol as needed. The Veteran reported flare-ups, describing them as “bilateral knees become extremely stiff.” He reported having functional loss or impairment, described as being unable to stand and walk for extended periods of time. Upon range of motion testing, his right knee revealed flexion limited to 120 degrees and normal extension. The Veteran’s left knee revealed flexion limited to 125 degrees with no limitation on extension. For both knees, the range of motion itself was found to contribute to functional loss, in that it makes ambulating difficult. Pain was noted on both flexion and extension. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was evidenced with weight bearing, but no objective evidence of crepitus was noted. The Veteran was able to perform repetitive-use testing with at least three repetitions on both knees, with no additional loss of function or range of motion following three repetitions. For both knees, examination was not completed immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. She described the estimated range of motion as flexion limited to 120 degrees with no limitation on extension on the right knee, and estimated range of motion as flexion limited to 125 degrees with no limitation on extension on the left knee. For both knees, examination was not conducted during a flare-up, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. Pain was found to significantly limit functional ability with flare-ups. The estimated range of motion on flare-ups showed the same measurements taken examination, flexion limited to 120 degrees with no limitation on extension on the right knee, and estimated range of motion as flexion limited to 125 degrees with no limitation on extension on the left knee. The examiner noted that additional contributing factors to the disability in both knees included: interference with standing and walking. She reported that such interference occurred with daily use. Muscle strength was identified as 4/5 on both knees, with reduction in muscle strength entirely due to the diagnoses. No muscle atrophy was noted. Ankylosis was not noted on either knee. No history of recurrent subluxation, lateral instability, or recurrent effusion was identified. Joint stability testing was performed, but no instability was shown. No recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairments were identified. No meniscus condition was found. The examiner described the residuals of both total knee replacement surgeries as intermediate degrees of residual weakness, pain, or limitation of motion. Scarring was also noted, for which the Veteran was separately service connected in a January 2021 rating decision. Regular use of a cane was noted. Regarding functional impact, the examiner stated that the Veteran was unable to stand or walk for extended periods of time. No objective evidence of pain was noted on non-weight bearing, and passive range of motion testing was the same as active range of motion testing for both knees. In response to the January 2021 supplemental statement of the case (SSOC), the Veteran provided January 2021 correspondence, stating that this evaluation did not account for “100 percent stiffness and pain” in his right and left knees following the surgeries. In separate correspondence dated February 2021, the Veteran responded to the separate evaluations for surgical scars granted in January 2021. The Veteran argued that the surgical scarring should not be the basis for the VA’s decision on his disability. He stated that he has “24/7 pain and fluid build-up in each knee so much that it is impossible to do the simplest of everyday task[s] to live.” Notably, this separate evaluation for surgical scarring does not account for any knee symptoms aside from scarring and was not meant to provide an evaluation of disability to the knees following surgery. Rather, it is a separate entitlement awarded to him based solely on the scarring. Right Knee Arthritis, prior to August 2, 2017 Left Knee Arthritis, prior to November 1, 2017 Based solely on the Veteran’s flexion, neither his left or right knee warrant a rating in excess of 10 percent under Diagnostic Code 5003-5260, as neither knee evidences flexion limited to 45 degrees or less. Accordingly, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5003-5260 for either knee. The 10 percent should be continued based on the presence of arthritis and painful motion in any plane of movement. Notably, although the Veteran does not warrant a compensable evaluation under Diagnostic Code 5261 for the left knee during the period, the Veteran evidenced 10 degrees of extension in the right knee in July 2016, which would potentially warrant a 10 percent evaluation under Diagnostic Code 5261. This Code provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a. However, as the right knee is already compensated under 5003-5260 for general limitation of motion, an additional award under 5003-5261 would constitute pyramiding, and is not warranted. 38 C.F.R. § 4.14. Although evaluation under 5003-5261 may be a more accurate description than 5003-5260 for the right knee, such an alteration is not necessary, as it would not change the Veteran’s overall award. As noted above, there are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis or the functional equivalent. Although “less movement than normal due to ankylosis” was identified as an additional factor contributing to the disability in the March 2016 examination, the report clarifies that upon physical examination, no ankylosis was identified. As there is no evidence of ankylosis, this Code is not applicable here. Right Knee Arthritis, prior to August 2, 2017 Left Knee Arthritis, prior to November 1, 2017 Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. The Veteran has reported a “giving way” sensation as well as feelings of instability in the knees. In English v. Wilkie, the Court determined that Diagnostic Code "5257 [does not] speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability." 30 Vet. App. 347, 349 (2018). In September 2015, the Veteran was wearing braces for stability in both knees. A positive anterior drawer test was noted in the right knee upon examination. Stability was again tested in the March 2016 examination, and no instability was identified. Shortly thereafter, in July 2016, VA treatment records once again show that the Veteran’s knees were both stable. Accordingly, in addition to the Veteran’s reported bilateral knee instability, his medical treatment records corroborate that there was some instability in the knees. As such, a 10 percent evaluation under Code 5257 for instability is warranted for both knees. However, as this instability is not consistently demonstrated, it is most appropriately characterized as “slight.” The records do not indicate that the Veteran’s instability is “moderate,” therefore, an evaluation in excess of 10 percent is not warranted. Other Diagnostic Codes Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. There is no evidence of that the Veteran’s knee disabilities pertain to the menisci; doctors repeatedly stated there was no meniscal injury. Accordingly, current application of these Codes is not warranted for purposes of increased evaluation. Code 5262 pertains to impairment of the tibia and fibula. While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. As no tibia or fibula impairment have been shown here, and this Code is not for application. Right Knee Arthritis following total knee replacement, since October 1, 2018 Left Knee Arthritis following total knee replacement, since January 1, 2019 Upon review of the evidence, an evaluation in excess of 30 percent disabling under Diagnostic Code 5055 is not warranted for either knee. For both the left and right knees, the Veteran’s records do not suggest any findings of ankylosis, extension limited to 30 degrees or greater, or nonunion of the tibia and fibula which would allow rating be analogy to Code 5256, 5261, or 5262 and warrant an evaluation higher than 30 percent. Regarding entitlement to a 60 percent evaluation, the Veteran is not found to have chronic residuals consisting of severe painful motion or weakness in the affected extremities. Notably, the Veteran consistently describes his current pain as “10/10,” “24/7,” and “100%.” However, the Veteran’s medical records do not reflect that his pain is severe enough to warrant an evaluation higher than 30 percent. In evaluating any disability on the basis of limitation of motion, VA considers the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the VA examiners have considered the Veteran’s complaints in assessing the current severity of his condition. The Veteran’s motion has been described as painful, his stiffness is noted, and his inability to ambulate unassisted is noted. However, upon testing, the Veteran’s limitation of flexion would not warrant a compensable evaluation for limitation of flexion in either his left or right knee; extension would warrant no more than a 10 percent evaluation. No additional losses of functional use or range of motion were noted following three repetitions on both the December 2019 and December 2020 examinations. Furthermore, in both examinations, the examiners opined that the Veteran would have no additional functional loss following repeated use over time. Although additional pain was noted with flare-ups in the December 2020 examination, it was estimated that no additional loss of range of motion would occur. Regarding weakness, no loss of strength was noted in the December 2019 examination. Although reduction in muscle strength was found attributable to the Veteran’s diagnosis in the December 2020 examination, it remained at 4/5 strength for both knees. Accordingly, although the Veteran is competent to report the symptoms that he experiences, his impression of his disability is not corroborated by the medical findings in either the December 2019 or the December 2020 examination. Despite his complaints, he is consistently found capable of a certain amount of movement. The objective evidence shows impact consistent with the assigned evaluation. Furthermore, on the December 2020 examination, the examiner described the Veteran as having intermediate degrees of residual weakness, pain, or limitation of motion. Accordingly, the Veteran’s symptoms related to weakness, pain, or limitation of motion are found to be sufficiently addressed within the 30 percent evaluation under Diagnostic Code 5055. Right Knee Instability, since October 1, 2018 Left Knee Instability, since January 1, 2019 Other Codes The Veteran remains eligible for rating under certain knee-related Diagnostic Codes that are not contemplated under Diagnostic Code 5055, including Codes 5257, 5258, and 5259. However, the Board finds that evaluations under Codes 5258 and 5259 remain unwarranted and evaluation under 5257 is noncompensable, although the Veteran has provided several lay statements that warrant consideration of these Codes following his knee replacement surgeries. Specifically, regarding Diagnostic Code 5257, the Veteran reported during the Board hearing that he has “no stability” in his knees and is unable to walk without his cane. He reported buckling in his knees as well as episodes of falling. However, on both the December 2019 and December 2020 examination, objective testing of the knees shows no instability of the joints. Such evidence is more probative of the actual degree of impairment than the subjective complaints. While the Veteran can describe the way that he feels regarding the knee, he lacks the knowledge and training to accurately describe the joint function, or the actual cause of a fall. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In other words, what is felt may not accurately reflect the actual condition or manifestation. Testing shows that the joint is stable, unlike during the previous period when some joint instability was objectively identified. Furthermore, entitlement to a compensable evaluation remains unwarranted, even when considering the changes to Diagnostic Code 5257 since February 7, 2021. As noted above, to warrant a 10 percent evaluation, either persistent instability due to sprain, incomplete ligament tear, or complete ligament tear must be evidence, or a patellofemoral complex with recurrent instability must be evidenced. Such instability is simply not evidenced per the Veteran’s medical testing following the Veteran’s total knee replacement surgeries. Therefore, no compensable evaluations under Diagnostic Code 5257 are warranted for the right and left knees following recovery from the total knee replacement surgeries. Essentially, the surgeries have improved that symptom. Furthermore, regarding Diagnostic Codes 5258 and 5259, the Veteran reported during the hearing that he experienced “locking” in his knees and that he “has no cartilage.” In the February 2021 statement provided to the VA, he reported “fluid build-up.” However, such symptoms have not been identified, reported, or considered elsewhere in his VA treatment records or during the examinations. Although the Veteran accurately reported that he no longer has cartilage, this is the expected result of total knee replacement surgery. Conditions of the menisci have consistently not been diagnosed or identified, prior to or since his surgery. As such, neither of these Codes are not applicable. In sum, evaluations in excess of 10 percent under Diagnostic Code 5003-5260 prior to August 2, 2017, for the right knee, and prior to November 1, 2017, for the left knee, are not warranted. However, separate evaluations of 10 percent disabling, and no higher, under Diagnostic Code 5257 prior to August 2, 2017, for the right knee and prior to November 1, 2017, for the left knee are warranted. The Veteran was awarded 100 percent evaluations due to convalescence for one year following total knee replacements for both the right and left knee. Thereafter, evaluations in excess of 30 percent disabling under Diagnostic Code 5055, since October 1, 2018, for the right knee, and since January 1, 2019, for the left knee, are not warranted. No compensable evaluations under Diagnostic Code 5257 since October 1, 2018, for the right knee, and since January 1, 2019, for the left knee, are warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.