Citation Nr: 21024622 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-32 701 DATE: April 23, 2021 ORDER An initial disability rating of 10 percent, but no more, for a left knee disability that manifested as lateral instability is granted. An initial disability rating of 10 percent, but no more, for a left knee disability that manifested as patellofemoral pain syndrome and degenerative arthritis is granted. FINDINGS OF FACT 1. The Veteran’s left knee disability resulted in slight lateral instability, but not greater throughout the appeal period. 2. From February 7, 2021, the Veteran’s left knee disability did not manifest as a sprain, incomplete ligament tear, or complete ligament tear. 3. From February 7, 2021, the Veteran’s left knee disability did not involve the patellofemoral complex with recurrent instability after surgical repair that required a prescription by a medical provider for one of the following: a brace, cane, or walker. 4. The Veteran’s left knee disability manifested a patellofemoral pain syndrome and degenerative arthritis, separate and distinct from lateral instability, throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no more, for left knee disability that manifested by lateral instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.4, 4.7, 4.71a, Diagnostic Code 5257 (in effect prior to and as of February 7, 2021). 2. The criteria for an initial disability rating of 10 percent, but no more, for a left knee disability that manifested by patellofemoral pain syndrome and degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.4, 4.7, 4.71a, Diagnostic Codes 5003-5260 (in effect prior to and as of February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 2001 until his honorable discharge in July 2006. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a May 2014 rating decision by the Portland, Oregon, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for left knee patellofemoral pain syndrome and assigned an initial noncompensable disability rating effective December 31, 2012. In February 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In a June 2019 decision, the Board denied an initial compensable disability rating for left knee disability prior to October 2, 2018, and granted an increased disability rating of 10 percent from October 2, 2018. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in which they stipulated the Board provided inadequate reasoning for its decision and relied on an inadequate October 2018 VA examination. Based on the JMPR, the Court entered an order in June 2020 vacating the Board’s decision in part and remanding the matter to the Board for readjudication. In December 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination addressing the severity of the Veteran’s left knee disability, which the RO accomplished. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). An initial rating is one assigned at the time service-connection is granted. When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Id. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all “the evidence of record from the time of the veteran’s application.” Fenderson, 12 Vet. App. at 127. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Rating Criteria – Left Knee In the initial May 2014 rating decision, the RO rated the Veteran’s left knee disability under 38 C.F.R. § 4.71a, DC 5257. Prior to February 7, 2021, DC 5257 provided as follows: Rating (%) Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 VA regulations do not define the terms “slight,” “moderate,” or “severe.” Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805–06 (Fed. Cir. 2010). “Slight,” as an adjective, is defined as “small of its kind or in amount.” Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Mar. 28, 2021). “Moderate,” as an adjective, is defined as “not violent, severe, or intense”; “limited in scope or effect.” Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Mar. 28, 2021). “Severe,” as an adjective, is defined as “causing discomfort or hardship”; “very painful or harmful”; “of a great degree.” Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6.a., 6.b., and 8 (last visited Mar. 28, 2021). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. It should also be noted that use of terminology such as “slight,” “moderate,” and “severe” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under DC 5257. See English v. Wilkie, 30 Vet. App. 347, 353 (2018) (“[N]othing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence . . . . ‘[I]t certainly does not, by its terms, restrict evidence to “objective” evidence.’” (quoting Petitti v. McDonald, 27 Vet. App. 415, 427 (2015))). VA amended numerous DCs, including DC 5257, as of February 7, 2021. Because the Veteran’s appeal was pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.71a, DC 5257, and whatever criteria is more favorable to the Veteran will be applied as of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal). Diagnostic Code 5257, effective February 7, 2021, now provides: Rating (%) Knee, other impairment of: Recurrent subluxation or lateral instability: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 30 One of the following: 20 (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. 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. 10 Patellar instability: 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. 30 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. 20 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. 10 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of “the normal working movements of the body . . . in order to constitute functional loss”). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of “actually painful, unstable, or malaligned joints.” 38 C.F.R. § 4.59; Petitti, 27 Vet. App. at 427. Section 4.59 does not require medical evidence; it may be satisfied with lay evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis The Board will address the relevant evidence in chronological order for clarity. In May 2014, the RO provided the Veteran with a VA examination at which time the examiner diagnosed the Veteran with left knee patellofemoral pain syndrome. The Veteran told the examiner he experienced “popping and occasional giving way” of his left knee when going up stairs, describe it as a “jolt.” He said he was unable to kneel on hard surfaces and unable to squat for long periods of time. He reported experienced flare-ups that limited his mobility and speed. The Veteran reported using a left knee brace on occasion. The examiner documented that the Veteran’s left knee had full range of motion, flexion and extension, and there was no objective evidence of painful motion. Following repetitive-use testing, the Veteran did not experience additional loss of range of motion. Based on the Veteran’s descriptions of his left knee’s condition on repetitive use over time and during flare-ups, the examiner opined that the Veteran would likely suffer a loss of 10 degrees of flexion, no loss of extension, mild to moderate weakness, mild to moderate fatiguability, and mild to moderate loss of coordination. The examiner documented pain or tenderness on palpation of the left knee. The Veteran had decreased left knee muscle strength, 4 out of 5 on a 5-point scale, which indicated “active movement against some resistance.” The examiner did not document joint instability or evidence of patellar subluxation/dislocation. No additional functional limitations or conditions were found. The examiner opined that the Veteran “would not be well suited for labor intensive employment requiring repetitive climbing, carrying, squatting but would be able to perform light to sedentary employment given left knee objective findings.” Absent evidence to the contrary, the Board finds the May 2014 VA examiner was competent to exam and diagnose the Veteran and to provide a medical opinion as to the severity of the Veteran’s left knee disability. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to his conclusions. In October 2014, the Veteran told his private chiropractic doctor that he experienced left knee pain and that his left knee “sometimes goes out when walking down stairs.” In his May 2015 notice of disagreement, the Veteran reported his chronic left knee pain prevented him from standing for eight hours a day, which is why he had to change jobs. The RO provided the Veteran with another VA examination in June 2016. The Veteran reported experiencing intermittent pain in his left knee when in use. He had difficulty walking on stairs and uneven surfaces. He reported flare-ups of his left knee, stating that it “start[s] to ache real bad and I have to plant my foot and pivot until it pops and the pain goes away.” The examiner documented that the Veteran’s left knee had full range of motion, flexion and extension, and there was no objective evidence of painful motion. The Veteran was unable to perform repetitive-use testing. Based on the Veteran’s descriptions of his left knee’s condition after repetitive use over time and during flare-ups, the examiner opined that he would not suffer additional functional loss due to pain, weakness, fatigability, or incoordination. The Veteran had normal left knee muscle strength, 5 out of 5 on a 5-point scale. The examiner did not find evidence of left knee ankylosis, joint instability, meniscal conditions, or any other left knee conditions. Absent evidence to the contrary, the Board finds the June 2016 VA examiner was competent to exam and diagnose the Veteran and to provide a medical opinion as to the severity of the Veteran’s left knee disability. Cox v, 20 Vet. App. at 569. The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to his conclusions. In an October 2018 VA primary care outpatient note, the Veteran reported he experienced left knee pain that was worse with weightbearing. He described the pain as “sharp and shooting.” The treating VA physician observed swelling. The Veteran reported experiencing periodic exacerbations of these symptoms. An X-ray revealed “new, mild lateral patellofemoral joint space narrowing.” The Veteran was provided a new VA examination in October 2018. At that time, the examiner diagnosed the Veteran with a left knee meniscal tear in addition to patellofemoral pain syndrome. The Veteran reported that he felt his left knee had worsened because it “clicked” and “popped” more and was swollen more often over the last couple of months. He did not experience instability. He reported decreased motion due to pain during flare-ups. The Veteran reported using a left knee brace occasionally. The examiner documented decreased range of motion: flexion of 0 to 130 degrees (normal being 0 to 140 degrees) and extension of 130 to 0 degrees (normal being 140 to 0 degrees). Objective evidence of pain was noted during passive and active flexion, on weightbearing and non-weightbearing, and there was localized tenderness and crepitus around the left knee joint. Repetitive-use testing did not result in additional functional loss. The examiner opined that the Veteran would suffer additional functional loss of 5 degrees as to both flexion and extension during flare-ups. The Veteran had normal left knee muscle strength, 5 out of 5 on a 5-point scale. The examiner noted an MRI showed the Veteran had a meniscal tear, which he opined was a progression of his service-connected left knee disability, as were his mild degenerative changes. The examiner did not find evidence of left knee ankylosis, joint instability, or any other left knee conditions. The Board recognizes that the parties stipulated the October 2018 VA examination was inadequate because the examiner did not elicit information from the Veteran and failed to offer an opinion about repetitive use of his left knee over time. Nevertheless, the Board finds the examination still has some probative value in other respects. See generally, Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight.”). During his February 2019 Board hearing, the Veteran testified he had constant pain in his left knee, and that changes in the weather affected his pain. He wore his knee brace when he experienced pain. As part of his employment in 2007 to 2008, he drove a tow truck. When he engaged the clutch pedal, he would experience sharp pain in his left knee. He still experienced pain when standing and kneeling for prolonged times. When using stairs, his knee would try to give out if he was not careful. The RO provided the Veteran with a VA examination in December 2020, consistent with the Board’s December 2020 remand directive. The Veteran reported that since his October 2018 VA examination, he continued to experience difficulty with prolonged standing and hiking. He no longer rode his bicycle. These activities caused him pain. He reported he did not experience flare-ups except when engaging in similar activities to those just described. When he did experience a flare-up, the pain would last for about three days. The Veteran reported that he used crutches occasionally. The examiner documented decreased range of motion: flexion of 0 to 130 degrees (normal being 0 to 140 degrees) and extension of 130 to 0 degrees (normal being 140 to 0 degrees). Objective evidence of pain was noted during passive and active flexion and on weightbearing, and there was localized tenderness and crepitus around the left knee joint. Repetitive-use testing did not result in additional functional loss. The examiner opined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. Following repetitive use over time, the examiner opined that the Veteran’s functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. But during flare-ups, the examiner opined the Veteran’s pain would limit his range of motion further: flexion of 0 to 120 degrees and extension of 120 to 0 degrees. The Veteran had normal left knee muscle strength, 5 out of 5 on a 5-point scale. The examiner noted the Veteran had a meniscal tear. The examiner did not find evidence of left knee ankylosis, joint instability, or any other left knee conditions. The examiner opined the Veteran’s left knee disability would likely reduce the Veteran’s endurances to tasks that involved kneeling and crawling. Absent evidence to the contrary, the Board finds the December 2020 VA examiner was competent to exam and diagnose the Veteran and to provide a medical opinion as to the severity of the Veteran’s left knee disability. Cox v, 20 Vet. App. at 569. The Board also finds the Veteran competent to report his physical sensations of pain and experiences associated with his left knee. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board finds the Veteran’s statements to the various medical professionals and those made within his correspondences with VA, as well as his testimony before the Board, credible and probative. DC 5257 (in effect prior to February 7, 2021) From February 7, 2021, the Board concludes that applying the version of DC 5257 in effect prior to February 7, 2021, provides the Veteran with a more beneficial rating throughout the entire appeal period. This is because, as explained in detail later, the version of DC 5257 in effect as of February 7, 2021, has more restrictive rating criteria that is more difficult to satisfy. Based on the evidence as a whole, the Board concludes that the Veteran’s left knee disability manifested as “slight” recurrent subluxation or lateral instability under DC 5257 (in effect prior to February 7, 2021) throughout the appeal period. The Veteran’s left knee disability did not manifest as “moderate” recurrent subluxation or lateral instability during the appeal period. The Veteran credibly described the pain and associated functional loss he experienced in his left knee throughout the appeal period. Importantly, his descriptions were consistent and, in the Board’s view, demonstrated a logical worsening of his left knee stability incrementally during the appeal period. He told the May 2014 VA examiner he experienced “occasional giving way” of his left knee when going up stairs. He reported flare-ups that limited his mobility and speed. The May 2014 VA examiner opined that, during flare-ups, the Veteran would experience mild to moderate weakness, mild to moderate fatiguability, and mild to moderate loss of coordination. In October 2014, the Veteran told his private chiropractic doctor that he experienced left knee pain and that his left knee “sometimes goes out when walking down stairs.” He told the June 2016 VA examiner he had difficulty walking on uneven surfaces. He testified at his February 2019 Board hearing that when using stairs his knee would give out if he is not careful. The medical evidence indicates a progressive increase in loss of range of motion, which the Board finds relates to the stability of the Veteran’s knee. The Veteran has also had progressively worsening knee pain, which the Board finds also relates to his left knee stability. Significantly, the Veteran has used a left knee brace throughout the appeal period, and most recently began using crutches occasionally. The Board finds this evidence indicates his left knee manifested a slight lateral instability throughout the appeal period. Although none of the medical professionals documented recurrent subluxation or lateral instability, the Board finds the Veteran’s credible statements and testimony indicate he did have slight lateral instability at points throughout the appeal period. While these moments of lateral instability were not continuous, the criterion is that they are “recurrent,” which is defined as “returning or happening time after time.” Recurrent, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/recurrent, Definition 2 (last visited Mar. 28, 2021). The Board finds the Veteran’s knee lateral instability was recurrent, particularly when using stairs. The Board does not find the Veteran’s left knee lateral instability manifested as “moderate” or “severe.” The evidence does not indicate or reasonably suggest that the Veteran’s left knee would give out violently or intensely such that it caused him significant discomfort or pain. To the contrary, the evidence indicates that when his left knee would give out, he experienced slight pain, reduced mobility, increased mild weakness, and incoordination. The evidence does not indicate that he was incapacitated for lengthy periods of time due to lateral instability, if at all, thus suggesting his lateral instability was not moderate or severe, but rather slight. Recently, he explained that if he experienced flare-ups, his pain could last for three days, but he did not state his instability lasted that long. Thus, the Board finds the instability symptoms are best characterized as slight lateral instability. In sum, the Veteran’s left knee disability manifested as slight lateral instability throughout the appeal period under DC 5257, thus entitling him to an initial disability rating of 10 percent, but no more, throughout the appeal period. The Board finds the factors found within 38 C.F.R. §§ 4.40, 4.45, relating to instability, incoordination, and associated weakness, are adequately accounted for within his disability rating under 38 C.F.R. § 4.71a, DC 5257, and a higher rating is not warranted at this time. DC 5257 (in effect as of February 7, 2021) The Board has considered whether it would be more beneficial to the Veteran to apply the new version of DC 5257 as of February 7, 2021. The Board finds it would not benefit the Veteran because the criteria is more restrictive in his case. The medical and lay evidence of record does not establish that the Veteran had a left knee sprain or any type of left knee ligament tear that caused persistent instability. 38 C.F.R. § 4.71a, DC 5257 (in effect as of February 7, 2021) (requiring a sprain or ligament tear for any compensable disability rating for recurrent subluxation or instability). The Veteran does have a diagnosed unrepaired left knee meniscal tear, but such a tear is not a “ligament” tear. The meniscus, with respect to the knee, is “a fibrous cartilage within a joint.” Meniscus, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/meniscus, Medical definition, Definitions 2.a.1 and 2, (last visited Mar. 28, 2021). Therefore, he would not meet the rating criteria. Nonetheless, the Board finds that the Veteran’s left knee disability would satisfy the criteria for a 10 percent disability rating as of February 7, 2021, but no higher, under the theory of patellar instability. 38 C.F.R. § 4.71a, DC 5257 (in effect as of February 7, 2021). His diagnosed left knee patellofemoral pain syndrome would reasonably involve the patellofemoral complex, and he uses supportive devices, braces and crutches, without a prescription for such devices. But, in order to warrant a higher disability rating, he would need to establish “[a] diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair . . . .” 38 C.F.R. § 4.71a, DC 5257 (in effect as of February 7, 2021) (criteria for a 20 percent disability rating). The evidence does not establish the Veteran had surgery involving the patellofemoral complex. The December 2020 VA examiner specifically documented a lack of surgery on the Veteran’s knee. Thus, applying the current version of DC 5257 does not aid the Veteran as he would not be entitled to a higher disability rating. Application of other DCs to the left knee The VA General Counsel held that a knee disability may receive separate ratings under DCs evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. The General Counsel also held that separate ratings under Code 5260 (limitation of flexion of a knee) and Code 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-04. The rating criteria for degenerative arthritis is found under 38 C.F.R. § 4.71a, DC 5003, which provides: Rating (%) 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 diagnostic code 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 below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 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. Note (2): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. For the purpose of rating disability from arthritis, “major joints” include the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). “Minor joints” include “multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae.” Id. In reference to the limitation of motion of the knee, VA regulations provide two specific DCs, 5260 (limitation of flexion) and 5261 (limitation of extension). Diagnostic Code 5260 provides: Rating (%) Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 Diagnostic Code 5261 provides: Rating (%) Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 In addition, the Board must still determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. The Veteran’s left knee flexion and extension have worsened throughout the appeal period. Most recently, the December 2020 examiner documented that the Veteran’s flexion, during flare-ups, would likely be 0 to 120 degrees, and his extension would likely be of 120 to 0 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. This was the most limited his flexion and extension were throughout the appeal period. Still, neither his limited flexion nor his limited extension was compensable under DC 5260 and DC 5261 based on the rating criteria alone. Nonetheless, the December 2020 VA examiner documented degenerative changes in the Veteran’s right knee due to his meniscal tear. See also October 2019 VA Primary Care Outpatient Note (documenting degenerative changes of left knee); December 2018 VA Orthopedic Surgery Consult (same). The Board interprets this as evidence of degenerative arthritis of the left knee. The Veteran also provided lay statements about experiencing pain associated with his left knee. The Board concludes his degenerative arthritis and pain are separate and distinct, compensable symptoms apart from his lateral instability. His arthritic pain reasonably limited his range of motion during the appeal period based on his medical and lay evidence. Even though he does not meet the schedular criteria under DC 5260 or 5261 based on his limited flexion or extension, respectively, his associated pain is still compensable. 38 C.F.R. § 4.59. Therefore, the Board finds the Veteran is entitled to an initial disability rating of 10 percent for his left knee’s degenerative arthritis and associated pain under 38 C.F.R. §§ 4.59, 4.71a, 5003-5260. This rating reasonably encompasses the Veteran’s associated left knee pain and functional loss not otherwise captured by his rating under DC 5257. 38 C.F.R. §§ 4.40, 4.45. A hyphenated DC is used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. The hyphenated DC in this case indicates that degenerative arthritis, DC 5003, is the service-connected disability, and the residual condition to which the arthritis is rated by analogy is limitation of flexion of the left knee, DC 5260. 38 C.F.R. § 4.71a. The Board notes that to award him a compensable disability rating for pain and associated functional loss under DC 5261, that is not separate and distinct from his pain and functional loss accounted for under DC 5260, would be impermissible pyramiding. 39 C.F.R. § 4.14; see generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (“[A] veteran cannot be compensated more than once for the same disability.”); Murray v. Shinseki, 24 Vet. App. 420, 423 (2011) (explaining that separate knee evaluations may be warranted where “the appellant’s symptoms are distinct and separate” (internal quotation omitted)). The Board has also considered whether any other DC is appliable to the Veteran’s left knee disability during the appeal period. First, there is no medical evidence that the Veteran suffered from ankylosis of the left knee during the appeal period. Each of the VA examiners documented he did not suffer from ankylosis. Thus, 38 C.F.R. § 4.71a, DC 5256 (ankylosis of the knee) is not applicable. Second, the Veteran has been diagnosed with a left knee meniscal tear, and the meniscus is semilunar cartilage. 38 C.F.R. § 4.71a, DC 5258 permits a disability rating when a veteran suffers from dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. While he suffered from semilunar cartilage pain and effusion into the joint, there is no evidence he suffered from dislocation or experienced frequent episodes of locking. Thus, DC 5258 is inapplicable. Likewise, 38 C.F.R. § 4.71a, DC 5259 is inapplicable as the Veteran did not experience removal of semilunar cartilage. Third, there is no medical or lay evidence of record to establish that the Veteran suffered from impairment of his tibia or fibula, 38 C.F.R. § 4.71a, DC 5262, or that he suffered from genu recurvatum, 38 C.F.R. § 4.71a, DC 5263, during the appeal period. Therefore, those DCs are inapplicable. Accordingly, the Board finds no other DC is applicable to the Veteran’s left knee disability. (Continued on the next page)   Conclusion In sum, the Veteran is entitled to an initial disability rating of 10 percent, but no higher, for his left knee disability throughout the appeal period for slight lateral instability. The Veteran is also entitled to a separate initial disability rating of 10 percent, but no higher, for his distinct pain, functional loss, and degenerative arthritis, of his left knee during the appeal period. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.