Citation Nr: 21026176 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-09 507 DATE: April 30, 2021 ORDER A 20 percent disability rating for service-connected partial lateral meniscectomy, chondromalacia and degenerative joint disease, right knee (right knee disability) under Diagnostic Code 5257 for instability is restored, effective January 13, 2021, subject to the rules and regulations governing the payment of monetary benefits. A 10 percent disability rating, but no higher, for service-connected right knee disability under Diagnostic Code 5260 is granted, effective January 5, 2011, through March 2, 2021, subject to the rules and regulations governing the payment of monetary benefits. A 20 percent disability rating, but no higher, for service-connected right knee disability under Diagnostic Code 5261 is granted, effective March 3, 2021, subject to the rules and regulations governing the payment of monetary benefits. REMANDED Entitlement to a compensable rating prior to January 13, 2021, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability was assigned a 20 percent disability rating under Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability of the knee from August 1, 1992, to January 13, 2021. 2. In changing the diagnostic code from Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability of the knee, to Diagnostic Code 5261, which pertains to limitation of extension, the agency of original jurisdiction (AOJ) effectively reduced the rating under Diagnostic Code 5257 to 0 percent, as Diagnostic Code 5257 and Diagnostic Code 5261 compensate distinct and separate manifestations of the Veteran’s right knee disability. 3. Prior to March 3, 2021, the Veteran’s service-connected right knee disability, at its worst, was manifested by 40 degrees flexion, 5 degrees extension, and no more than moderate instability; however, it was not manifested by ankylosis. 4. From March 3, 2021, the Veteran’s service-connected right knee disability, at its worst, was manifested by 90 degrees flexion, 15 degrees extension, and no more than moderate instability; however, it was not manifested by ankylosis. CONCLUSIONS OF LAW 1. The 20 percent disability rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the knee is protected and may not be reduced, and therefore is restored, effective January 13, 2021, the date of its erroneous reduction. 38 U.S.C. § 110 (2018); 38 C.F.R. §§ 3.951 (2020). 2. The criteria for a separate 10 percent disability rating for service-connected right knee disability are met, effective January 5, 2011, through March 2, 2021. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 3. The criteria for a separate 20 percent disability rating for service-connected right knee disability are met, effective March 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to May 1965, and from July 1972 to July 1992. Following the December 2020 supplemental statement of the case (SSOC), the filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, wherein he identified the December 2020 SSOC and listed the issues adjudicated herein. Although the Veteran’s VA Form 20-0995 was received within 60 days of the December 2020 SSOC, it appears that the AOJ did not accept this as a valid opt-in to the modernized review system (AMA) because the opt-in box was not checked, and the Veteran’s claim was instead subsequently adjudicated as a claim for increased ratings. As such, the legacy appeal stemming from the original claim remains pending, and the Board will proceed with adjudication. Insofar as evidence was added to the claims file since the December 2020 SSOC, including a March 2021 VA examination report, in April 2021, the Veteran’s representative indicated that the Veteran wished to waived initial AOJ consideration of this evidence. See 38 C.F.R. § 20.1305 (2020). 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. § 4.1. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pyramiding—that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes—is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14 (2020). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. By way of background, a March 1993 rating decision awarded service connection for the Veteran’s right knee disability and assigned an initial 10 percent disability rating under Diagnostic Code 5257, effective August 1, 1992, the day after the Veteran was discharged from active duty. A December 1993 rating decision awarded an increased disability rating of 20 percent under Diagnostic Code 5257, effective August 1, 1992. Thereafter, based upon the results contained in a March 2021 VA examination report, the AOJ issued a rating decision in March 2021 that continued the Veteran’s 20 percent disability rating. Nevertheless, the AOJ changed the diagnostic code under which the Veteran’s right knee disability was rated from Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability of the knee, to Diagnostic Code 5261, which pertains to limitation of extension, effective January 13, 2021. See 38 C.F.R. § 4.71a. At the outset, the Board finds that the 20 percent disability rating previously assigned the Veteran’s right knee disability under Diagnostic Code 5257 must be restored. In this regard, a disability which has continuously been rated at or above any evaluation of disability for 20 or more years for VA compensation purposes will not be reduced to less than such evaluation except upon a showing that the rating was based on fraud. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b). The Veteran’s right knee disability had been assigned a 20 percent disability rating under Diagnostic Code 5257 from August 1992 through January 2021, and there is no indication that the initial assignment was based on fraud. Therefore, that rating is subject to preservation. See id. Consequently, the change in diagnostic code from Diagnostic Code 5257 to Diagnostic Code 5261 in the March 2021 rating decision amounted to a reduction to 0 percent under Diagnostic Code 5257, as Diagnostic Code 5257 and Diagnostic Code 5261 compensate distinct and separate manifestations of the Veteran’s right knee disability. See Murray v. Shinseki, 24 Vet. App. 420 (2011); see also Esteban, 6 Vet. App. at 261-62. Specifically, Diagnostic Code 5257 pertains to recurrent subluxation and/or lateral instability of the knee, while Diagnostic Code 5261 pertains to limitation of extension of the knee. 38 C.F.R. § 4.71a. Such a reduction by changing the diagnostic code from Diagnostic Code 5257 to Diagnostic Code 5261, rather than assigning a separate rating under the latter diagnostic code (that is, in addition to the 20 percent rating already assigned under Diagnostic Code 5257), is expressly prohibited, even if the manifestation compensated by Diagnostic Code 5257 is no longer present. See Murray, supra. Accordingly, the 20 percent disability rating under Diagnostic Code 5257 is restored, effective January 13, 2021, the date of its erroneous reduction. The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Code 5257, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 5257 was revised. Under the revised rating criteria, a 30 percent disability rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker). Alternatively, a 30 percent rating 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Note (1) to Diagnostic Code 5257 notes that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to Diagnostic Code 5257 notes that 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). Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees. Id. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees. Id. The Board observes that the words “mild,” “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 the degree that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although 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 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In February 2011, the Veteran underwent a VA examination, and the examiner noted his report that he had retired in 2009 as a sales consultant as a result of knee pain. He reported a gradual worsening of his symptoms, including his report that his knee would occasionally give out. He reported constant pain, which he rated as a seven out of ten, and he stated that the pain increased to 9 with movement. Precipitating factors included walking, standing, bending, twisting, and lifting. He also reported severe effects on his ability to do chores, shopping, exercise, sports, and recreation. The Veteran reported flare-ups two to three times a week that lasted all day, and his symptoms include increased pain and decreased mobility. Upon examination, his range of motion was zero degrees extension to 40 degrees flexion. The examiner noted that his effort appeared to be submaximal, so range of motion was retested, and his range of motion was zero degrees extension to 48 degrees flexion. Joint stability testing could not be performed due to the Veteran’s complaints of pain. There was objective evidence pain with active motion and during repetitive use, and the Veteran’s range of motion was the same following repetitive use testing. In April 2012, the Veteran underwent a VA examination at which time he reported instability and severe pain that had worsened over time. He also reported flare-ups occurring two to three times a week during which his right knee would swell, and he would have to rest until the swelling subsided. Upon examination, the Veteran’s right knee range of motion was flexion to 40 degrees with objective evidence of painful motion at 0 degrees; and extension to 5 degrees with evidence of painful motion at 5 degrees. The Veteran’s range of motion was the same following repetitive-use testing, but the examiner noted that contributing factors limiting his functional impairment included less movement than normal, pain on movement, and disturbance of locomotion. There was pain on palpation, muscle strength testing was normal, and there was no evidence of a history of recurrent patellar subluxation/dislocation. Joint stability testing revealed 2+ (5-10 millimeters) medial-lateral instability in the right knee. The examiner noted the Veteran’s history of a meniscal tear, and his 1991 meniscectomies; however, the examiner noted that the Veteran did not have any residual signs and/or symptoms due to the meniscectomies. The examiner noted that the Veteran used a knee brace and cane regularly for ambulation. As for function impairment, the examiner noted that experienced increased pain and decreased endurance due to prolonged standing, prolonged walking, lifting, squatting, and kneeling. Nevertheless, the examiner noted that sedentary employment was possible. A June 2014 MRI of the right knee revealed a full-thickness radial tear involving the junction of the body and posterior horn of the medial meniscus, as well as a complex tear involving the posterior horn of the medial meniscus. A September 2014 private treatment record noted the Veteran’s report of worsening right knee pain. He also reported that his right knee pain started to affect his activities of daily living, and that increased pain disrupted his sleep. He denied any locking or giving way sensation, though he did say that it popped often. He stated that he used a knee brace for a sense of stability, but the brace did not improve his symptoms. Examination of the right knee revealed a slight varus alignment to the tibia and diffuse tenderness to palpation, but no obvious soft tissue abnormalities. Active range of motion was zero degrees to 120 degrees, and passive range of motion was zero degrees to 125 degrees. There was a moderate amount of crepitus with flexion and extension, and there was increased pain at the end range of motion. There was trace laxity with valgus stressing, but Lachman’s and anterior drawer were negative or normal. McMurray’s testing reproduced pain medially, and patellar compression was positive for pain. X-rays revealed advanced degenerative arthrosis, right knee, primarily in the medial and patellofemoral compartment. A February 2015 VA treatment record noted the Veteran’s report of increased right knee pain. A March 2015 VA treatment record noted the Veteran’s report of worsening right knee pain. The treatment provider noted that examination revealed that he used a right knee brace, that he walked with a slight limp favoring his right side, that he had full flexion and extension, and that there was no specific medial or lateral joint line tenderness or instability. He was diagnosed with mild osteoarthritis in the right knee, and the treatment provider concluded that it was not severe enough for surgery. A January 2019 VA treatment record noted the Veteran’s report of right knee pain. Examination revealed no effusion, and his range of motion was zero to 120 degrees. There was no ligamentous instability, but there was positive joint line tenderness, particularly to the medial joint line. X-rays revealed mild degenerative joint disease. A July 2019 private treatment record noted that examination of the Veteran’s right knee revealed decreased range of motion secondary to pain in the right knee. Unfortunately, the precise range of motion measurements were not provided. August 2019 and October 2019 private treatment records note the Veteran’s report of using a knee brace, as well as his report that he had been exercising. He also stated that he had full range of motion despite the presence of constant pain. The August 2019 private treatment record noted that examination of the Veteran’s right knee revealed decreased range of motion secondary to pain in the right knee. Unfortunately, the precise range of motion measurements were not provided. A November 2019 private treatment record noted that examination of the Veteran’s right knee revealed limited range of motion secondary to pain in the right knee, as well as swelling. Unfortunately, the precise range of motion measurements were not provided. An April 2020 private treatment record noted that examination of the Veteran’s right knee revealed full range of motion, no swelling, and no warmth, but there was tenderness ot the medial mid port of the knee. A July 2020 private treatment record noted the Veteran’s report of right knee pain, as well as increased pain with movement. He also denied any redness, swelling, or tenderness. Examination revealed full range of motion. In October 2020, the Veteran underwent another VA examination, and the examiner confirmed his diagnoses of right knee meniscal tear, right knee osteoarthritis, right knee chondromalacia patella, and partial lateral meniscectomy. The Veteran reported pain that comes with activities, but he denied flare-us. He reported difficulty walking more than one block, standing for more than 10 to 15 minutes, and an inability to run. Range of motion testing revealed right knee flexion to 110 degrees, and right knee extension to zero degrees with pain noted during flexion and extension. The examiner noted that pain was noted during the examination and that it contributed to his functional loss. Also, there was objective evidence of localized tenderness or pain on palpation on the medial joint line and both sides of the patellar tendon that was identified as being mild and moderate to severe, respectively. There was also evidence of pain with weight bearing and crepitus. Following repetitive-use testing, the Veteran’s range of motion was the same. The examiner then stated that pain and weakness would significantly limit his functional ability following repetitive use, and she estimated that his range of motion would be limited to 80 degrees flexion. consistent with the range of motion displayed during the examination. Swelling to both sides of the patellar tendon was an additional factor contributing to the disability. Muscle strength testing was revealed active strength against some resistance, but there was no evidence of muscle atrophy, and there was no evidence of ankylosis. Joint stability testing was normal. The examiner noted his meniscal tear and indicated that it caused frequent episodes of joint pain. The Veteran was noted to constantly use a brace on his right knee, and the examiner noted that he would have difficulty walking more than one block or standing for more than 10 to 15 minutes. In March 2021, the Veteran underwent another VA examination, and the examiner again confirmed his diagnoses of right knee meniscal tear, right knee osteoarthritis, right knee chondromalacia patella, and partial lateral meniscectomy. The Veteran denied flare-us, but he reported difficulty walking more than one block, standing for more than 10 to 15 minutes, and an inability to climb more than two to three stairs. The examiner noted that the did not report of history of instability, recurrent subluxation, or frequent effusion of the knee. Range of motion testing revealed right knee flexion to 120 degrees, and right knee extension to zero degrees with pain noted during flexion. There was evidence of pain with weight-bearing, active motion, and passive motion, and the examiner indicated that such contributed to his functional loss. Also, there was objective evidence of crepitus, as well as severe localized tenderness or pain on palpation on the medial joint line, lateral joint line, patellar tendon. Following repetitive-use testing, the Veteran’s range of motion was the same. The examiner then stated that pain would significantly limit the Veteran’s functional ability following repetitive use, and she estimated that his range of motion would be limited to 90 degrees flexion, 15 degrees extension. There was no evidence of muscle atrophy or ankylosis. With regard to joint stability, the examiner noted that there was no evidence of recurrent subluxation or persistent instability, there was no evidence of a ligament tear, and the Veteran did not require a prescription by a medical provider for a device to aid in ambulation. Later, the examiner indicated that joint stability testing in the right knee was normal. The examiner noted the Veteran’s meniscal tear and indicated that it caused frequent episodes of joint pain and decreased motion. The Veteran was noted to constantly use a brace on his right knee for pain relief, and the examiner noted that he would have difficulty walking more than one block, standing for more than ten, or climbing more than two to three stairs. These problems, in turn would make work difficult due to limited mobility and stamina. Based on the evidence of record, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a separate 10 percent disability rating is warranted under Diagnostic Code 5260 for flexion limited to 45 degrees or less, effective January 5, 2011, the day the Veteran’s claim for an increased rating was received. This award is based on the February 2011 VA examination report’s notation that the Veteran displayed 40 degrees flexion and 48 degrees flexion during the examination, as well as the April 2012 VA examination reports notation that he displayed 40 degrees. Although the February 2011 VA examiner indicated in the examination report that the Veteran’s effort appeared to be submaximal, thus calling into question the validity of the 40 degree measurement, the Veteran displayed 40 degree flexion again when retested in April 2012 and there is nothing suggesting less than optimal effort during that examination. Furthermore, insofar as the Veteran’s private and VA treatment records following the April 2012 examination VA indicate that he displayed flexion greater than 45 degrees, the criteria for a compensable rating under Diagnostic Code 5260, a 10 percent disability rating would still be warranted pursuant to 38 C.F.R. § 4.59 as the evidence of record clearly demonstrates that he experienced painful motion. Indeed, both the February 2011 and April 2012 VA examiners noted that the examination revealed objective evidence of painful motion during the examination, and the Veteran’s private and VA treatment records following the April 2012 examination note the objective presence of pain with range of motion. Thus, in addition to the currently-assigned 20 percent disability rating under Diagnostic Code 5257 (which will be discussed in more detail below), the Board finds that a separate 10 percent disability rating under Diagnostic Code 5260 is warranted effective January 5, 2011, through March 2, 2021. Furthermore, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a separate 20 percent disability rating is warranted under Diagnostic Code 5261 for extension limited to 15 degrees or less, effective March 3, 2021, the day of the March 2021 VA examination. As noted above, the March 2021 VA examiner estimated that, following repetitive use, the Veteran’s extension would be limited to 15 degrees, the criteria for a 20 percent disability under Diagnostic Code 5261. However, the Board finds that the Veteran is not entitled to a rating in excess of, or separate from, the currently-assigned 10 percent disability rating under Diagnostic Code 5260 for the period from January 5, 2011, through March 2, 2021; a rating in excess of, or separate from, the 20 percent disability rating under Diagnostic Code 5261 from March 3, 2021; or in excess of the currently-assigned 20 percent disability rating under Diagnostic Code 5257. Initially, the Board notes that a higher rating could be assigned to the Veteran’s service-connected right knee disability under Diagnostic Code 5256 for ankylosis of the knee; however, there is no evidence of record demonstrating ankylosis. Indeed, there is no indication of ankylosis throughout the appeal period. To the contrary, the October 2020 and March 2021 VA examiners both noted that ankylosis was not present in his right knee. As for Diagnostic Code 5260, concerning limitation of flexion, the Veteran’s range of motion has only ever met the criteria for a 10 percent disability rating under that code (flexion limited to 45 degrees), to include when considering the impact of repetitive use and flare-ups. Furthermore, following the April 2012 VA examination, the Veteran’s flexion was consistently shown to be greater than 45 degrees. Nevertheless, as noted above, the Board has assigned a 10 percent rating for the period from January 5, 2011, to March 3, 2021, consistent with 38 C.F.R. § 4.59. In ending the 10 percent disability rating, effective March 3, 2021, the Board notes that 38 C.F.R. § 4.59 provides for the assignment of a compensable rating for painful motion when the rating criteria are not otherwise met. Based on the March 2021 VA examination report, the Veteran’s right knee extension met the rating criteria for a 20 percent disability rating under Diagnostic Code 5261. Thus, continuing the 10 percent disability rating pursuant 38 C.F.R. § 4.59 concurrent with the 20 percent rating under Diagnostic Code 5261 would constitute pyramiding, as it would be compensating the Veteran twice for symptomatology contemplated by his 20 percent disability rating under Diagnostic Code 5261. See 38 C.F.R. § 4.14. As for Diagnostic Code 5261, concerning limitation of extension, the Board notes that the Veteran’s right knee range of motion never met the criteria for a compensable rating under that diagnostic code prior to March 3, 2021, to include when considering the impact of repetitive use and flare-ups. Indeed, at worst, the Veteran’s extension was limited to 5 degrees and, as noted above, a compensable rating under Diagnostic Code 5261 requires limitation of extension to 10 degrees. Insofar as the Veteran experienced painful extension prior to March 3, 2021, the assignment of a separate compensable rating under Diagnostic Code 5261 for that period would constitute pyramiding, as it would be compensating the Veteran twice for the same symptoms, painful/limited motion in his right knee. See 38 C.F.R. § 4.14. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the VA examination reports reflects consideration of these principles. However, despite his report of increased pain during flare ups, the Veteran did not report decreased range of motion during flare ups or following repetitive use during the February 2011 and April 2012 VA examinations, and the examiners noted that his range of motion stayed the same following repetitive use testing. Furthermore, the Veteran denied experiencing flare ups to the October 2020 and March 2021 VA examiners. Finally, the March 2021 VA estimated that the Veteran’s range of motion would be limited to 90 degrees flexion and 15 degrees extension during flare ups or following repetitive use, and these measurements do not warrant higher ratings under Diagnostic Codes 5260 and/or 5261. Thus, the evidence does not show that the Veteran’s functional loss following repetitive use or during a flare-up would be of such frequency or severity to warrant a higher rating at any point during the appeal period. Finally, as for Diagnostic Code 5257, the Board has also considered whether a rating in excess of the currently-assigned 20 percent is warranted under the previous rating criteria; however, a rating higher than that currently assigned is not warranted at any point during the appeal period. Specifically, despite the Veteran’s report of instability during the April 2012 VA examination, testing revealed only 2+ (5-10 millimeters) medial-lateral instability in the right knee. Furthermore, despite the Veteran’s report in the September 2014 private treatment record that he used a knee brace for a sense of stability, there was only trace laxity with valgus stressing, and Lachman’s and anterior drawer were negative or normal. The March 2015 VA treatment record noted that there was no specific medial or lateral joint line tenderness or instability, and the January 2019 VA treatment record noted that there was no ligamentous instability. Thus, the Board finds that a rating in excess of the currently-assigned 20 percent disability rating under Diagnostic Code 5257 is not warranted under the previous rating criteria. As for the new rating criteria, the evidence of record fails to demonstrate an unrepaired or failed repair of complete ligament tear causing persistent instability; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Indeed, although the evidence indicates that the Veteran experienced instability, and that he regularly used a brace and cane on his right knee, there is no indication that he was diagnosed with a sprain and/or ligament tear, or that he underwent surgery to repair a diagnosed condition involving the patellofemoral complex. Thus, a higher rating is not warranted under the new rating criteria for Diagnostic Code 5257. Finally, insofar as the Veteran underwent a partial meniscectomy, the Board finds that a higher disability rating under Diagnostic Code 5258 is not warranted during the appeal period, as the evidence fails to demonstrate that the Veteran experiences frequent episodes of locking and effusion into the joint. Furthermore, although the VA examiners have indicated that the Veteran’s meniscal tear involved frequent episodes of pain, assigning a rating under Diagnostic Code 5259 would constitute pyramiding because, as discussed above, the Veteran’s pain is already contemplated in the ratings already in effect under Diagnostic Code 5260 and 5261. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his service-connected right knee disability, including the functional impairment associated with his disability, as he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, in assigning the separate 10 percent disability rating under Diagnostic Code 5260 for the entire period prior to March 3, 2021, the Board has relied upon his reports of pain, in additional to the competent medical evidence of record. However, with respect to the requirements for higher ratings, the Board finds that the medical evidence is more probative, as it offers detailed, specific, specialized determinations pertinent to the rating criteria, and it is the most probative with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summation, the Board finds that the 20 percent disability rating under Diagnostic Code 5257 for instability associated with the service-connected right knee disability must be restored, effective January 13, 2021. Furthermore, a 10 percent disability rating for service-connected right knee disability under Diagnostic Code 5260 is warranted, effective January 5, 2011, through March 2, 2021. Finally, a 20 percent disability rating for service-connected right knee disability under Diagnostic Code 5261 is granted, effective March 3, 2021. However, the preponderance of the evidence is against ratings in excess of the currently-assigned 10 percent rating under Diagnostic Code 5260 from January 5, 2011, through March 2, 2021; the 20 percent rating under Diagnostic Code 5261 from March 3, 2021; and the 20 percent rating under Diagnostic Code 5257. Because the preponderance of the evidence is against higher ratings at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Bilateral Hearing Loss With regard to the Veteran’s claim for an increased rating for his service-connected bilateral hearing loss, the Board notes that there appear to be outstanding VA treatment records that may be pertinent to the appeal. Specifically, a January 2017 VA treatment record indicates that the Veteran underwent audiometric testing and, while the treatment record provides a summary of the findings, the specific results are not included. Because the VA treatment records currently associated with the record appear to be incomplete, and because any outstanding records, including the January 2017 VA audiological results, could bear on the outcome of his claim on appeal if procured, efforts must be made to obtain them, as well as any updated VA treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Additionally, the Veteran should be given the opportunity to identify any outstanding records pertinent to claim remaining on appeal. TDIU Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of a claim for an increased rating when such claim is expressly raised by the veteran or reasonably raised by the record. As noted above, during the February 2011 VA examination, the Veteran reported that he retired in 2009 as a sales consultant as a result of knee pain. Thus, the Board has jurisdiction over the claim for a TDIU as part and parcel of his claim for an increased rating for his service-connected right knee disability and has listed such on the title page. To date, he has not been provided with proper notice concerning the requirements for a TDIU claim. Therefore, on remand, the AOJ should send the Veteran proper notice, and it should request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and then adjudicate this matter in the first instance. The matters are REMANDED for the following action: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Associate any outstanding VA treatment records with the Veteran’s claims file, to include the complete audiological results referenced in the January 2017 VA Audiological Progress Note, as well as any updated VA treatment records. 3. Give the Veteran an additional opportunity to submit or identify any outstanding evidence pertinent to his claims on appeal. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 4. Thereafter, and after any further development deemed necessary, the issues on appeal, including entitlement to TDIU, should be readjudicated. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.