Citation Nr: 21023949 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-33 226 DATE: April 21, 2021 ORDER Entitlement to an increased rating in excess of 10 percent from December 1, 2008 to August 12, 2016 for right knee status post anterior cruciate ligament repair with degenerative changes is denied. Entitlement to an increased rating in excess of 30 percent from August 12, 2016 for right knee muscle injury, Group XI is denied. Entitlement to an increased rating in excess of 10 percent from November 2, 2018 for right knee limitation of flexion is denied. Entitlement to a compensable rating from November 2, 2018 for right knee limitation of extension is denied. FINDINGS OF FACT 1. For the period from December 1, 2008 to August 12, 2016, the Veteran’s right knee disability is manifested by: removal of synovial, meniscal, and articular cartilage fragments; pain, crepitus; patellar grind; range of motion to 110 degrees of flexion and zero degrees of extension (with no additional limitation to range of motion upon repetition due to pain fatigue, incoordination, weakness, or lack of endurance); and subjective feelings of giving out, “catching,” and “popping.” 2. For the period from August 12, 2016, the Veteran’s right knee disability is characterized by measurable atrophy of right-side lower extremity muscles affecting propulsion and flexion of the knee, characterized overall as severe. 3. For the period from November 2, 2018, the Veteran’s right knee disability was manifested by limitation of flexion at worst to 55 degrees, occasional swelling, weakness, and pain on motion; ankylosis and subluxation have not been shown. 4. For the period from November 2, 2018, the Veteran’s right knee disability was manifested by limitation of extension at worst to 5 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent from December 1, 2008 to August 12, 2016 for the right knee status-post arthroscopy with degenerative changes have not been met or approximated. 38 U.S.C. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2020). 2. The criteria for an increased rating for right knee muscle injury, Group XI, rated as 30 percent disabling from August 8, 2016, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.73, Diagnostic Code 5311. 3. The criteria for an increased rating in excess of 10 percent from November 2, 2018 for right knee limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 4. The criteria for a compensable rating from November 2, 2018 for right knee limitation of extension have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) originally in Oakland, California. Jurisdiction is now with the RO in Atlanta, Georgia. The Board remanded the issues on appeal for additional development in April 2016, May 2017, February 2019, and December 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, since the original claim for an increased rating in April 2009, the Veteran’s evaluation for the right knee disability has been increased from 10 percent to 30 percent under a different diagnostic code, and two additional ratings for the right knee, for limitation of flexion and extension, have been added, each effective from November 2, 2018. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including a total disability evaluation based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, VA medical records indicate the Veteran still works and has not asserted that his service-connected disabilities prevent him from maintaining gainful employment. The Board finds there no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to TDIU and/or SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Ratings - General 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. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2013); 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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 U.S.C. § 5107; 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. Knee Disabilities: Legal Standards The Veteran is currently rated under three different diagnostic codes for his right knee. He was originally rated under Diagnostic Code 5259 with a 10 percent rating for the right knee, originally characterized as status post anterior cruciate ligament repair with degenerative changes, which has been in effect since September 1, 2001, notwithstanding a temporary total evaluation from October 8, 2008 to December 1, 2008 pursuant to 38 C.F.R. § 4.30. That original disability is now characterized as right knee muscle injury, Group XI, with a 30 percent rating effective from August 12, 2016. The Veteran is also separately rated for the right knee under Diagnostic Code 5260, leg limitation in flexion, with a 10 percent rating since November 2, 2018, and under Diagnostic Code 5261, leg limitation in extension, with a noncompensable rating since November 2, 2018. In assigning hyphenated diagnostic codes, the number assigned to the residual condition on the basis of which the rating is determined will generally represent injuries. Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen. 38 C.F.R. § 4.27. The Veteran’s right knee is currently rated under Diagnostic Code 5311, for muscle group injury, Group XI. 38 C.F.R. § 4.73, Diagnostic Code 5311. Under this diagnostic code, slight disability warrants a zero percent or noncompensable rating, moderate disability warrants a 10 percent rating, moderately severe disability warrants a 20 percent rating, and severe disability warrants a 30 percent rating. Muscle Group XI is responsible for: Propulsion, plantar flexion of foot (1); stabilization of arch (2, 3); flexion of toes (4, 5); Flexion of knee (6). Posterior and lateral crural muscles, and muscles of the calf: (1) Triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris. Muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection. The service department record would show a superficial wound with brief treatment and return to duty. There would be healing with good functional results. There are no cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c). Objectively, there would be a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function, or metallic fragments retained in muscle tissue. A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record (or other evidence) would show in service treatment for the wound. There would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, the entrance (and if present, exit) scars would be small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance, or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side would be present. A moderately severe muscle disability is one where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), and, if present, an inability to keep up with work requirements. Objectively, the entrance (and if present, exit) scars would indicate the track of missile through one or more muscle groups. There would be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. A severe muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements. Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track. Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles would swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. If they happen to be present, the following would also be signs of severe muscle injury: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile; (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) Visible or measurable atrophy; (E) Adaptive contraction of an opposing group of muscles; (F) Atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. The cardinal signs or symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). With regard to the two additional ratings for the Veteran’s right knee, he is also separately rated for the right knee under Diagnostic Code 5260, leg limitation in flexion, with a 10 percent rating since November 2, 2018, and under Diagnostic Code 5261, leg limitation in extension, with a noncompensable rating since November 2, 2018. VA’s General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The rationale is that limitation of flexion and limitation of extension are two distinct impediments, i.e., the symptomatology upon which the separate ratings would be based is not duplicative or overlapping. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). However, based on the medical evidence before the Board, ankylosis, other impairment of the knee (which include recurrent subluxation or lateral instability), impairment of the tibia and fibula, and genu recurvatum have not been found or associated with the Veteran’s knee disabilities and thus will not be considered here. VA’s schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read “Degenerative arthritis, other than post-traumatic.” Id. No other changes pertinent to this claim are applicable for this particular appeal. Under Diagnostic Code 5258, semilunar dislocated cartilage, there is only a single rating of 20 percent specified for frequent episodes of “locking,” pain, and effusion into to the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage, there is only a single rating of 10 percent specified: semilunar cartilage, removal of, symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees, a 40 percent rating will be assigned for limitation of extension to 30 degrees, and a 50 percent rating will be assigned for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. For DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as follows: a 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent is assigned for X-ray evidence that shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). The terms “slight,” “marked,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Evidence and Analysis The Veteran’s original right knee rating is effective from September 1, 2001, the day after he retired from active service. After he sustained a right knee injury in October 2008, the Veteran filed a claim for an increased rating regarding his right knee disabilities on April 1, 2009, contending that his right knee had more severe symptoms than the original rating accounted for. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). As such, the Board will consider evidence from approximately April 2008 in consideration of the Veteran’s increased rating claim for his right knee. Where, as is the case with the increased-rating claim currently before the Board, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The earliest medical record pertinent to this increased rating claim derives from a July 2008 private imaging examination of the Veteran’s right knee from Yuba City Advanced Imaging. The impressions were: (1) rupture of the anterior cruciate ligament (ACL) graft which was impinged by an anterior osteophyte in the notch, with associated anterior translation of the tibia; (2) previous medial meniscectomy versus complete degenerative tear of the entire meniscus; (3) Grade III to IV chondromalacia of the medial knee compartment. A 16-mm focal area of denuded cartilage in the posterior aspect of the medial femoral condyle is seen; (4) a 5.0-mm focal area of a partially-torn articular cartilage in the posterior aspect of the lateral tibial plateau; (5) question of an intra-articular body in the lateral aspect of the suprapatellar pouch. CT arthrogram may be helpful for further evaluation; and (6) post-surgical changes including arthrofibrosis. Upon September 2008 evaluation by Dr. G.V. of the Sutter North Medical Group, the Veteran presented with a history of right knee pain of several months’ duration following a biking incident, from which time he experienced “shifting” sensations coming from within the knee (which did not remind him of previous cruciate ligament instability). The Veteran had been experiencing “catching” and “popping” sensations. Physical examination revealed a well-healed incision on the anterior aspect of the right knee from a surgery 20 years previously, with increased excursion on Lachman examination, but a negative pivot shift. Medial joint line tenderness was 2+, with no popliteal tenderness and negative McMurray examination. There was crepitus on the Apley grind test, and with regular range of motion there was some crepitus at the lateral facet of the patella. The impression was internal derangement of the right knee, probably a complete versus a partial re-rupture of the ACL, some more degeneration of the remaining rim of the medial meniscus, and post-traumatic arthritis. Under the section entitled Plan, it was noted that the Veteran has been having some sort of semi-locking episodes, usually in slight flexion and some near giving way episodes. In October 2008, the Veteran underwent a right knee arthroscopy with generalized debridement, abrasion arthroplasty of the intercondylar notch, chondroplasty, all 3 compartments. Synovial, meniscal and articular cartilage fragments were removed. Findings included: (1) intact ACL graft although with several fibers shredded superficially; (2) narrowing of the intercondylar notch, mainly lateral wall exostosis; (3) Grade 3-4 chondral defect, femoral trochlea, more towards the lateral lobe with loose articular cartilage circumferentially; (4) lateral placa; (5) Grade 2 arthritis, medial and lateral articular surfaces, femoral condyle; and (6) degenerative edge of the medial meniscal rim and inner edge of the lateral meniscus. The post-operative diagnosis was right knee post-traumatic arthritis with intact but slightly degenerative ACL graft, lateral plica, and osteoarthritis with grade 3-4 chondral defect, femoral trochlea. The October 2008 operative report noted the development of mechanical symptoms and clinical symptoms of instability although clinical exam is not suggestive of an ACL re-rupture. VA provided a VA examination of the joints to include the knees in July 2009. He reported pain, weakness, stiffness, swelling, instability, locking, fatigability, and lack of endurance. The Veteran also reported daily flare-ups of 30 minutes’ duration, with a severity of 10 out of 10. This consisted of radiating pain from his knee to his ankle. He related daily pain which worsened after walking all day, which he treated with Tylenol and Aleve, and that he no longer played softball, golfed, or rode his bicycle. Finally, the Veteran stated that his right knee pain limited his home projects. With regard to episodes of dislocation or subluxation, the examiner noted the Veteran reported that in July 2008 he had 3 episodes in one day, but the examiner did not specify whether they were episodes of dislocation or subluxation. Examination of the right knee revealed objective evidence of painful motion, medial surface tenderness, and guarding of movement. The Veteran indicated that he could stand for 30 minutes and could walk one half mile before needing rest. Flexion was to 110 degrees, upon 3 repetitions flexion was to 110 degrees with pain, weakness, fatigue, and lack of endurance. Extension was to 0 degrees. Upon 3 repetitions, flexion was again to 0 degrees, with no pain, weakness, fatigue, or lack of endurance. With regard to stability of the medial and lateral collateral ligaments, varus/valgus was normal. Stability of anterior and posterior cruciate ligaments was normal. Lachman’s and medial and lateral meniscus (McMurray’s) tests were normal, and anterior and posterior drawer testing was negative. The diagnosis was degenerative joint disease (DJD) of the right knee with chronic residual degenerative tear of the medial meniscus and arthritis. VA provided another examination for the Veteran’s knees in August 2016. The examiner noted the Veteran’s statements that his right knee’s symptoms had been worsening. Range of motion measurements noted flexion measured to 120 degrees and extension at minus 10 degrees of extension. Pain was noted on examination and pain was noted on weight-bearing. The examiner found localized pain along the peripatellar and medial joint line, and also noted the presence of crepitus. There was no additional loss of range of motion after three repetitions. Functional impact of the right knee disability included pain, fatigue, weakness, and lack of endurance. Muscle strength testing revealed a reduction in extension active movement against some resistance. Muscle atrophy of the right lower extremity was noted as 55 centimeters on the more normal side and 52 centimeters on the atrophied side. Ankylosis was not noted, but there were frequent episodes of joint locking, pain, and effusion due to the previous meniscal tear. The Veteran did not require the use of any assistive devices. X-rays taken as part of this examination noted traumatic arthritis of the right knee. The examiner noted the Veteran was able to work still, though he could not do manual physical labor anymore. The Veteran noted that he cannot do any high impact activities and avoids climbing stairs when possible. VA provided another compensation and pension knee examination for the Veteran in November 2018. The history of the right knee was noted to include an October 2008 right knee arthroscopy with generalized debridement, abrasion arthroplasty of the intercondylar notch, and chondroplasty of all three compartments. Post-operative diagnosis was noted as right knee posttraumatic arthritis with intact but slightly degenerative ACL grant, lateral plica, and osteoarthritis with chondral defect and femoral trochlea. Right knee flareups were noted on a daily basis due to overactivity, lasting up to a day. The Veteran noted he stops doing what he was doing and rests if he can. Range of motion measurements include flexion and extension from minus 5 degrees extension to 130 degrees flexion. There was no change in range of motion measurements after three repetitions. Crepitus was noted with mild localized tenderness or pain on palpation along the medial joint line. There was no evidence of pain on weight bearing. Muscle strength in the right knee was five on a scale of five but in extension, four on a scale of five. Muscle atrophy was noted with measurements of the more normal side as 53 centimeters and the atrophied side as 49.5 centimeters. No ankylosis was noted. On this examination, moderate recurrent subluxation was noted and slight lateral instability was noted. The right knee showed a history of recurrent effusion, with swelling by day’s end, though no drainage procedures have been done. Joint stability testing was performed, and the anterior instability Lachman test indicated a “1+” reading and in lateral instability, also a “1+” reading. Posterior instability and medial instability were normal. Frequent episodes of joint locking, pain, and effusion were noted for the right knee. Following a Board remand, VA provided a VA knees examination in December 2020. The examiner continued previous diagnoses of right knee muscle injury with degenerative arthritis, and the history of an anterior cruciate ligament tear and a right knee arthroscopy from October 2008. Flareups were noted for the right knee if the Veteran walked or bended his knee under stress, and were alleviated by rest. Range of motion measurements were zero to 100 degrees in flexion and extension. Pain was noted on examination and causes functional loss. Pain was noted on weight bearing and there was objective evidence of crepitus. The range of motion measurements were the same after three repetitions. Instability of station, disturbance of locomotion, interference with sitting, and interference with standing were noted. Muscle strength was five on a scale of five, and no muscle atrophy was noted on this examination. No ankylosis was noted and there was no indications of recurrent subluxation or lateral instability. All joint stability tests for the right knee were considered normal. The final VA examination for the Veteran’s right knee pertinent to this appeal was provided in February 2021. The previous diagnoses of the right knee, post arthroscopy with degenerative changes were continued. The Veteran reported flareups described as “really severe” and “sharp,” precipitated by walking extended distances. The Veteran reported difficulty climbing stairs and having to hold on the handrail for support. Range of motion measurements were 105 degrees in flexion to zero degrees in extension. Evidence of pain was noted in active and passive motion. Range of motion measurements after three repetitions indicated 95 degrees in flexion and zero degrees in extension. Pain on motion was noted. The same measurements were noted as the estimate for range of motion after flare-ups. No muscle atrophy was noted and no ankylosis was noted. Right knee joint instability was considered normal. There was no tibial or fibular impairment noted. The Veteran reported instances of his right knee joint locking up with movement. The Veteran did not use assistive devices. 1. Entitlement to an increased rating in excess of 10 percent from December 1, 2008 to August 12, 2016 for right knee status post anterior cruciate ligament repair with degenerative changes For the Veteran’s right knee disability under Diagnostic Code 5259, for the period on appeal December 1, 2008 to August 12, 2016, the Board finds that a rating in excess of a 10 percent evaluation is not warranted. While the flexion measurements in this period would not warrant a compensable rating for the right knee, a rating of 10 percent is appropriate here due to painful motion of the knee, where the minimum compensable evaluation is 10 percent because 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, which for the right knee, is 10 percent. 38 C.F.R. § 4.59; see Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); Petitti v. McDonald, 27 Vet. App. 415 (2015). To warrant the next higher rating above the current 10 percent for painful motion, a 20 percent rating, knee flexion would have to be limited to 30 degrees or less, and/or knee extension would have to be limited to 15 degrees or greater. This has never been shown in this appeal period, even with consideration of additional loss of motion due to pain and swelling during flare-ups. Additionally, the Board has considered the statements regarding flareups by the Veteran, but based on the medical evidence, even with estimates of motion loss in terms of degrees during periods of flare-ups, the criteria for higher evaluations based on range of motion have not been met or approximated in this appeal period. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has also considered a separate rating relating to the Veteran’s right knee range of motion in this appeal period. As previously mentioned earlier in this decision, while the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, the Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board notes here that a higher rating under Diagnostic Codes 5260 or 5261 for flexion or extension does not provide the Veteran any additional benefit. In addition, prior to August 12, 2016, there are no examiner or Veteran reports of instability. 2. Entitlement to an increased rating in excess of 30 percent from August 12, 2016 for right knee muscle injury, Group XI The Board notes that the Veteran was given a VA examination on August 12, 2016 for his service-connected right knee disability. The examiner made a finding of measurable atrophy of right-side lower extremity muscles affecting propulsion and flexion of the knee, characterized overall as severe. It is from this assessment of the current severity of the Veteran’s muscle injury, Group XI, relating to the right knee that the previous rating was recharacterized now as Diagnostic Code 5311 for right knee muscle injury, Group XI, and was increased to 30 percent. The Board notes this is the highest rating possible under this Diagnostic Code. See Johnston v. Brown, 10 Vet. App. 80 (1997); see also Spencer v. West, 13 Vet. App. 376 (2000). The Board has also considered whether the Veteran’s right knee-related muscle injury would be better or more appropriately rated under any of these other codes but finds that Diagnostic Code 5311 is most appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of Diagnostic Code should be upheld if supported by explanation and evidence); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). Furthermore, the Board notes that there is no other diagnostic code within the appropriate section for rating muscle disabilities of the foot and leg under 38 C.F.R. § 4.73 that is higher than the current 30 percent rating, beyond the separate ratings for Diagnostic Codes 5260 and 5261 to be discussed following. Thus, there is no legal basis upon which to award an increased rating for the right knee muscle injury, Group XI, and the appeal for a higher rating under that diagnostic code for this period must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to an increased rating in excess of 10 percent from November 2, 2018 for right knee limitation of flexion 4. Entitlement to a compensable rating from November 2, 2018 for right knee limitation of extension Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). Here, based on the November 2018 VA examination, the Board notes that separate ratings as previously awarded for the Veteran’s right knee are appropriate under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension without violating the rule against “pyramiding.” The Board finds that a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted, based on the worst finding of 55 degrees of limitation of flexion in the right knee based on flareups. In addition, the Board also finds that a separate rating in excess of noncompensable under Diagnostic Code 5261 is not warranted based on the worst finding of less than 5 degrees for limitation of extension in the right knee, again to include consideration of flareups. To warrant the next higher rating above the current 10 percent for limitation of flexion, a 20 percent rating, knee flexion would have to be limited to 30 degrees or less. The next highest rating for knee limitation of extension would have to be limited to 10 degrees or greater. This has never been shown, even with consideration of additional loss of motion due to pain and swelling during flare-ups. Additionally, the Board has considered the statements regarding flareups by the Veteran, but based on the medical evidence, even with estimates of motion loss in terms of degrees during periods of flare-ups, the criteria for higher evaluations based on range of motion beyond those already provided have not been met or approximated. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has reported consistent symptoms of his right knee disabilities in lay statements and to his examiners on multiple occasions over all the periods on appeal. The Veteran is competent to report pain on motion and limitation of movement. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Board finds him credible, as his reports are internally consistent and there is no evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is cognizant that VA examiners have recorded different ranges of motion, but all examiners have noted the consistent pain, pain on motion, and substantial functional impacts of the Veteran’s right knee disabilities. Furthermore, the Veteran’s lay statements are consistent over time and correspond to the medical evaluations and treatment notes in the record. “[O]bjective evidence does not necessarily mean [only] medical evidence.” Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). The Board has considered the possibility of an additional rating based on instability, and evidence of instability in the Veteran’s right knee was noted in the November 2018 and December 2020 VA examinations, though not the subsequent February 2021 examination. The Board has considered the findings regarding objective evidence of knee instability versus subjective reporting of instability by the Veteran in this case. See English v. Wilkie, 30 Vet. App. 347, 353 (2018) (holding that the Board cannot categorically favor objective stability test results over lay reports of instability). Here, the Board notes the Veteran has reported pain on motion and limitation of motion and instability of station. Id.; see also Tedesco v. Wilkie, 31 Vet. App. 360, 367 (2019). However, due to the rules and case law on pyramiding, the Veteran’s rating schedule combination for his three rated right knee disabilities is maximized with the current Diagnostic Code 5259 in the earliest period on appeal, and then Diagnostic Codes 5311, 5260, and 5261 in the later periods. 38 C.F.R. § 4.14; Lyles v. Shulkin, 29 Vet. App. 107 (2017); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). The Board has considered other diagnostic codes for the Veteran’s right knee disabilities, to include ankylosis (Diagnostic Code 5256), other impairment of the knee, to include recurrent subluxation or lateral instability (Diagnostic Code 5257), semilunar dislocated cartilage (Diagnostic Code 5258), malunion/nonunion of the tibia and fibula (Diagnostic Code 5262), and genu recurvatum (Diagnostic Code 5263), and found them to not apply to the Veteran’s right knee disability picture in any period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, 5263. For the foregoing reasons, then, the Board finds that a rating in excess of 10 percent for the right knee is not warranted, from December 1, 2008 to August 12, 2016, the earliest date in this period under Diagnostic Code 5259 following the period of temporary total evaluation following the right knee meniscal arthroscopy in October 2008. A rating in excess of 30 percent is no warranted for the right knee disability from August 12, 2016 forward under the recharacterization to Diagnostic Code 5311, muscle injury, Group XI, the maximum possible rating under that diagnostic code. The Board also finds that a rating in excess of 10 percent for the right knee in flexion is not warranted, from November 2, 2018, or a rating in excess of noncompensable for the right knee in extension, also from November 2, 2018. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s right knee disabilities other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond that discussed, as the Veteran has had a stable level of symptomatology throughout each appeal period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. (Continued on next page.) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.