Citation Nr: 21027307 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-00 882 DATE: May 5, 2021 ORDER Entitlement to initial ratings in excess of 10 percent prior to September 29, 2020 and 40 percent thereafter for service-connected degenerative joint disease (DJD) of the right knee with limitation of extension is denied. Entitlement to initial ratings in excess of 10 percent prior to September 29, 2020 and 20 percent thereafter for service-connected DJD of the right knee with instability is denied. Entitlement to a separate 20 percent initial rating for service-connected residuals of medial and lateral meniscal tears of the right knee is granted. REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a bilateral thigh disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for partial loss of use bilateral lower extremities, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for radicular pain of the right upper extremity, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for radicular pain of the bilateral lower extremities, to include as secondary to service-connected right knee disability, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to May 16, 2018 is remanded. FINDINGS OF FACT 1. Prior to September 29, 2020, the service-connected DJD of the right knee is manifested by flexion limited to no less than 125 degrees and extension to no less than 10 degrees with pain and flare-ups. 2. From September 29, 2020, the service-connected DJD of the right knee is manifested by flexion limited to no less than 70 degrees and extension to no less than 30 degrees with pain and flare-ups. 3. Prior to September 29, 2020, the service-connected DJD of the right knee has been manifested by no more than slight lateral instability. 4. From September 29, 2020, the Veteran's service-connected DJD of the right knee has been manifested by moderate lateral instability. 5. From the date of service connection, the DJD of the right knee has been manifested by frequent episodes of stiffness, locking, and effusion into the joint; these symptoms are sufficiently distinct from painful limitation of motion and instability to warrant a separate rating. CONCLUSIONS OF LAW 1. Prior to September 29, 2020, the criteria for a rating in excess of 10 percent for service-connected DJD of the right knee with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5003, 5260, 5261, 5262. 2. From September 29, 2020, the criteria for a rating in excess of 40 percent for service-connected DJD of the right knee with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5003, 5260, 5261, 5262. 3. Prior to September 29, 2020, the criteria for an initial rating in excess of 10 percent for service-connected DJD of the right knee with instability were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 4. From September 29, 2020, the criteria for an initial rating in excess of 20 percent for service-connected DJD of the right knee with instability were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate initial rating of 20 percent for residuals of medial and lateral meniscal tears of the right knee with frequent episodes of stiffness, locking, and effusion into the joint are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.27, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for DJD of the right knee and assigned separate 10 percent ratings for instability and limitation of extension from February 27, 2014. The rating decision also denied service connection for disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities, as well as entitlement to a TDIU. The Veteran filed a notice of disagreement (NOD) in October 2014. A statement of the case (SOC) was issued in December 2016 and he perfected a timely appeal in December 2016. In a September 2019 Board decision, the claims were remanded for further evidentiary development. With respect to the right knee disability claims, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2020 rating decision, the RO increased the assigned rating for right knee DJD with limitation of extension to 40 percent from September 29, 2020 and the rating for right knee DJD with instability to 20 percent from September 29, 2020. The Veteran has not expressed satisfaction with the increased initial ratings; these claims thus remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The matter of entitlement to service connection for an acquired psychiatric disorder as also remanded by the Board in September 2019. In the October 2020 rating decision, the RO granted service connection for unspecified anxiety disorder and assigned a 10 percent rating from February 27, 2014 and a 100 percent rating from May 16, 2018. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In the January 2021 Written Brief Presentation, the Veteran, through his representative, expressed disagreement with the assigned effective date for the 100 percent rating for unspecified anxiety disorder. To the extent that the Veteran seeks to file a NOD with the assigned effective date for the 100 percent rating, he must do so on the appropriate form in order to properly initiate an appeal of that issue. A supplemental statement of the case (SSOC) was issued in October 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to initial ratings in excess of 10 percent prior to September 29, 2020 and 40 percent thereafter for service-connected DJD of the right knee with limitation of extension. 2. Entitlement to initial ratings in excess of 10 percent prior to September 29, 2020 and 20 percent thereafter for service-connected DJD of the right knee with instability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint's functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested 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. 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In this case, the Veteran's right knee DJD is assigned a 10 percent rating prior to September 29, 2020 and 40 percent thereafter pursuant to Diagnostic Code (DC) 5003-5261 based on limitation of extension of the knee. He is also assigned a separate 10 rating prior to September 29, 2020 and 20 percent thereafter for service-connected DJD of the right knee with instability pursuant to DC 5257. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5003 was only changed to clarify that it applies specifically to degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Additionally, Diagnostic Codes 5260 (leg, limitation of flexion) and 5261 (leg, limitation of extension) were also not changed by the revisions to the musculoskeletal system, effective February 7, 2021. The general rating schedules for limitation of motion of the knee are set forth in 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Prior to the regulatory change DC 5257 provided the rating criteria for impairment of the knee manifested by recurrent subluxation and lateral instability. Under this diagnostic code provision, a 10 percent disability rating is warranted where there is slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, DC 5257. As of February 7, 2021, under the amended criteria, the DC 5257 indicated that knee, other impairment of should be rated as follows: Recurrent subluxation or instability: For unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, a 30 percent disability rating is warranted For one of the following a 20 percent disability rating is warranted: (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 pre-scribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, a 10 percent disabling rating is warranted. Patellar instability: 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 a 30 percent disabling 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 one of the following: a brace, cane, or walker, a 20 disability rating is warranted. For a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker, a 10 percent disability rating is warranted. 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). Diagnostic Codes 5258 and 5259 were not changed by the revisions to the musculoskeletal code. DC 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides that a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. In this matter, the Veteran was awarded service connection for DJD of the right knee in a September 2014 rating decision. A 10 percent rating was assigned for instability of the right knee from February 27, 2014 and a 10 percent rating was assigned for limitation of extension of the right knee from February 27, 2014. The Veteran disagreed with the assigned ratings and this appeal follows. As indicated above, an October 2020 rating decision increased the assigned rating for limitation of extension of the right knee to 40 percent from September 29, 2020 and the rating for instability of the right knee to 20 percent from September 29, 2020. For the reasons set forth below, the Board finds that higher initial ratings are not warranted for the service-connected right knee disability based upon limitation of motion or instability. However, the Board does find that a separate 20 percent rating is warranted for residuals of meniscal tears of the right knee from the date of service connection. An October 2013 x-ray of the Veteran's right knee revealed an old lateral tibial plateau fracture. A February 2014 private consultation from Dr. P.Y. documented the Veteran's report of progressive pain and dysfunction of the right knee. Dr. P.Y. reported that the Veteran "has pain which is constant in varying degrees and intensified with transition to or from a weight-bearing position, walking, standing, and stairs." He noted that the Veteran's right knee pops and clicks, and gives out at unpredictable times. Dr. P.Y. stated, "[o]n examination, flexion and extension are adequate." Physical examination revealed lateral instability as well as crepitus. Dr. P.Y. noted a diagnosis of post traumatic well-advanced DJD of the right knee. The Veteran was afforded a VA examination in August 2014 at which time the examiner confirmed a diagnosis of right knee DJD with history of meniscal tear. The Veteran reported constant knee pain at 3 to 10 out of 10 in severity. He indicated that his knee gives way, catches, and locks. The Veteran described flare-ups of right knee symptomatology occurring 2 to 3 times per month with a duration of 2.5 to 3 hours. The Veteran described flare-ups as occurring with walking up and down stairs, and getting in and out of a car. Flare-ups are alleviated with ice, rest, and time. The Veteran reported that he is unable to function during flare-ups; specifically, he cannot walk or stand. The examiner indicated that the Veteran's activities of daily living were impacted only during flare-ups. Range of motion testing revealed flexion to 125 degrees with pain and extension to 10 degrees with pain. There was no additional limitation of motion with repetitive use testing. Functional loss was manifested by less movement than normal, pain on movement, and disturbance of locomotion. There was tenderness of the right knee. Muscle strength was intact. Joint stability testing revealed medial-lateral instability at 1+ (0-5 mm.) in the right knee. There was no history of recurrent patellar subluxation or dislocation. The examiner noted the Veteran's history of meniscal tear with frequent episodes of joint locking and joint pain. The Veteran reported the regular use of a cane during flare-ups. The examiner explained that the Veteran's right knee disability does impact his ability to work. Specifically, he was an attorney, but has been unemployed since 2010; his disability is related to his hips, back, and knees. In an August 2014 statement, the Veteran reported continuing right knee pain with locking that occurs approximately three times per month. The Veteran stated that, during episodes of locking, "I become immobilized and must sit and apply ice to the knee for three hours or so before the condition abates." The Veteran reported he is able to walk 50 feet before he experiences pain and/or fatigue. In a September 2014 lay statement, Mr. P.C. indicated that he is a friend of the Veteran. He witnessed the Veteran out at a social event and the Veteran was wearing a right knee brace. He reported that the Veteran's right knee was swollen and painful. He described the Veteran's difficulty walking. VA treatment records dated in June 2016 document the Veteran's report that his right knee gives out on him and recently caused him to fall down some stairs. In July 2017, the Veteran was administered a corticosteroid injection to treat his right knee symptoms. Magnetic resonance imaging (MRI) of the Veteran's right knee was performed in February 2018, which revealed the following: (1) complex tear of the posterior horn of the medial meniscus, (2) a complex tear of the posterior horn and body of the lateral meniscus, (3) a complete chronic tear of the anterior cruciate ligament (ACL), (4) moderate suprapatellar joint effusion, (5) a Baker's cyst with multiple foci of loose bodies and/or hemorrhage within it, and (6) tricompartmental chondromalacia and osteoarthritis. In a May 2018 private medical report, Dr. P.Y. stated that the Veteran "has instability and pain of the right knee" intensified with sitting, walking, standing, stairs, transition to other positions, and arising from a seated position. Dr. P.Y. reported that the Veteran has a fractured tibial plateau of the right knee. He further indicated that flexion is performed with pain to less than 30 degrees. Extension was "adequate but painful due to torn ACL." Dr. P.Y. stated that examination "reveals very markedly lateral instability which answers the giving out and nearing falling." Pursuant to the September 2019 Board Remand, the Veteran was afforded a VA examination in September 2020. The VA examiner confirmed diagnoses of meniscal tear of the right knee, as well as degenerative arthritis. The Veteran reported current right knee symptoms including constant pain and swelling. He indicated that he treats his right knee symptoms with Tramadol and Ibuprofen. He endorsed flare-ups of right knee symptomatology manifested by "[p]ain so intense it stops me in my tracks." Flare-ups occur 4 to 6 times per month with a duration of a few minutes. Functional loss is manifested by difficulty walking for longer than five minutes and difficulty bending the knee, as well as inability to kneel, squat, run, or stand for longer than five minutes. Range of motion testing revealed flexion to 90 degrees and extension to 20 degrees. Pain was noted on examination and causes functional loss. There was localized tenderness of the right knee; specifically, "[s]harpness with palpation to the lateral aspect of the right knee." The examiner could not conduct repetitive use testing due to the Veteran's fear of right knee pain. There was objective evidence of crepitus. The examiner reported that pain significantly limits the Veteran's functional ability with repeated use over a period of time manifested by flexion to 85 degrees and extension to 25 degrees. The examiner additionally indicated that pain significantly limits the Veteran's functional ability with flare-ups manifested by flexion to 70 degrees and extension to 30 degrees. Additional factors contributing to disability include swelling, disturbance of locomotion, and interference with sitting and standing. The examiner noted chronic swelling of the right knee. The Veteran reported difficulty ambulating during flare-ups; he uses a wheelchair and requires assistance of spouse to get out of bed. Muscle strength was 4/5 in flexion and extension. There was no atrophy or ankylosis. There was no history of recurrent subluxation or recurrent effusion. The examiner indicated that there was a moderate history of lateral instability. Joint stability testing could not be performed because the Veteran's right knee was swollen. The examiner reported that the Veteran does have a meniscal tear without surgical intervention. Regarding assistive devices, the Veteran reported the regular use of a walker and the occasional use of a wheelchair and cane. The Veteran's right knee disability does impact his ability to work. The examiner noted that the Veteran experiences "difficulty sitting, standing, [and] walking for long periods related to right knee DJD with history of meniscal tear prior to service, [and] instability." The examiner reported that there was objective evidence of pain on passive range of motion testing, as well as objective evidence of pain when the joint is used in nonweight-bearing. Based on the evidence of record, as detailed in pertinent part above, the Board finds that a disability rating in excess of 10 percent is not warranted for his service-connected left knee disability based upon limitation of extension prior to September 29, 2020. VA examination and treatment records referenced above demonstrated, at worst, extension to 10 degrees with pain (as documented by the August 2014 VA examiner). As such, this finding warrants a 10 percent rating prior to September 29, 2020 under DC 5261. Likewise, for the period from September 29, 2020, the evidence does not support a finding that a rating in excess of 40 percent is warranted for limitation of extension. The RO granted a 40 percent rating from September 29, 2020 based upon a finding by the September 2020 VA examiner that the right knee disability resulted in limitation of extension to 30 degrees with flare-ups. However, the evidence of record does not indicate that a rating in excess of 40 percent is warranted at any time during the period under consideration. Namely, there is no evidence of symptoms which produce or more nearly approximate extension limited to 45 degrees. See 38 C.F.R. § 4.71a. Therefore, pursuant to DC 5261, an initial rating in excess of 40 percent is not warranted from September 29, 2020. With respect to limitation of flexion, the majority of the medical evidence of record, including VA examinations, private treatment records, and private evaluation reports, demonstrated, at worst, 70 degrees of flexion in the right with pain, repeated use over time, and flare-ups. Therefore, separate disability ratings due to limitation of extension and flexion for the right knee are not warranted. The Board recognizes that, in a May 2018 private opinion, Dr. P.Y. reported that the Veteran exhibited flexion to less than 30 degrees. This piece of evidence appears to be an outlier, unsupported by the other clinical findings of record. It does not accurately depict the severity of the Veteran's flexion as documented at any time during the appeal period. A disability can have inactive and active stages, requiring the application of staged ratings. Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). However, in Voerth v. West, the Court found Ardison inapplicable where the veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days. 13 Vet. App. 117, 122-23 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare up). This one instance of flexion limited to 30 degrees from Dr. P.Y. does not require separate staged ratings when considering the length and severity of the symptoms in question. The Board has carefully considered the Veteran's reports of significant knee pain which is constantly present and exacerbated during flare-ups. Critically, however, functional loss must be rated under the diagnostic code pertaining to limitation of motion of the affected joint, pursuant to 38 C.F.R. § 4.40; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (noting that functional loss due to pain is to be rated at the same level as where motion is impeded); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (noting that the disabling effect of painful motion must be considered when rating joint disabilities) (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (stating that functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion)); c.f., Petitti v. McDonald, 27 Vet. App. 415 (2015). Hence, there is no basis upon which to find additional limitation due to functional factors. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32. As indicated above, the Veteran's impaired extension upon repetitive motion and during flare-ups is contemplated in the assigned 10 percent and 40 percent ratings for limitation of extension. He nevertheless does not meet the criteria for the assignment of a separate disability rating for limitation of flexion in his right knee under VAOPGCPREC 09-2004, VAOPGCPREC 23-97, or VAOPGCREC 9-98 at any time during the appeal period. The Board additionally finds that a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is warranted from the date of service connection. Here, the evidence clearly documents medial and lateral meniscal tears of the right knee, coupled with documentation of stiffness, locking, popping, crepitus, and effusion. Accordingly, a separate 20 percent rating is warranted for right meniscal tears under DC 5258. As indicated above, the Veteran is also in receipt of a separate rating for instability of the right knee, which is evaluated as 10 percent prior to September 29, 2020 and 20 percent thereafter pursuant to the former DC 5257 (in effect prior to February 7, 2021). In this regard, the Veteran has repeatedly reported right knee instability with the use of a right knee brace, as well as a cane, wheelchair, and walker. Specific findings of mild or slight instability in the right knee 1+ (0-5mm) were documented in the examination conducted prior to September 29, 2020. See the VA examination report dated August 2014. These findings are consistent with the 10 percent rating currently assigned under DC 5257 for slight lateral instability and do not more nearly approximate moderate or severe instability such as that manifested by 2+ (5 to 10mm) or 3+ (10 to 15mm), respectively. The Board has considered the Veteran's lay statements of instability, but finds that the level of specificity is not sufficient to provide a basis to award a rating in excess of 10 percent, unlike the specific clinical measurement documented in August 2014. The RO granted the increased 20 percent rating for lateral instability under DC 5257 based upon moderate instability of the Veteran's right knee documented at the September 29, 2020 VA examination. Although the September 2020 VA examiner was unable to perform joint stability testing due to the Veteran's fear of right knee pain, the examiner noted the Veteran's description of functional impairment of the right knee and regular use of a walker for ambulation. These findings are consistent with a 20 percent rating under DC 5257 for moderate lateral instability and do not more nearly approximate severe instability such as that manifested by 3+ (10 to 15mm). Thus, the medical and lay evidence reflects competent evidence of moderate instability in the right knee. The evidence does not support the award of a 30 percent rating for right knee instability, as there is not documentation of severe instability at any time during the appeal period. The Board has considered whether a higher rating would be warranted under the revised DC 5257 (in effect from February 7, 2021). To this end, the Board recognizes that the February 2018 MRI report indicated that the Veteran had a chronic complete ACL tear. The evidence additionally shows that the Veteran has been prescribed the use of a walker and brace for ambulation. See the VA treatment records dated February 2018 and December 2019. Accordingly, under the revised DC 5257, a 30 percent rating would be warranted from February 7, 2021. 38 U.S.C. § 5110(g). The resulting combined disability rating for the right knee would be 70 percent for the period from February 7, 2021. See 38 C.F.R. § 4.25. However, the 70 percent rating violates the amputation rule, which allows for no more than a 60 percent rating for the Veteran's entire right knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DC 5164. Therefore, a maximum 60 percent rating for the Veteran's right knee disability (to include limitation of flexion and extension, instability, and meniscus tear) is warranted from September 29, 2020. A 30 percent disability rating may be assigned for ankylosis at a favorable angle in full extension, or in slight flexion between zero and 10 degrees. 38 C.F.R. § 4.71a, DC 5256. However, as indicated above, none of the other examination and treatment records contained in the claims file documents ankylosis of the right knee or symptoms more nearly approximating ankylosis. As such, the Board finds that a higher disability rating under DC 5256 is not warranted at any time from the date of service connection. The Board recognizes that the Veteran's medical history documents a fracture of the lateral tibial plateau. See the x-ray report dated October 2013. However, there is no documentation of malunion or nonunion of the tibia and fibula; thus, DC 5262 is not for application. The Board has also considered whether DC 5055 (knee replacement) is applicable in this matter. However, a total knee replacement was not performed in the right knee; as such, DC 5055 is not for application. In sum, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the Board finds that initial ratings in excess of 10 percent prior to September 29, 2020 and 40 percent thereafter are not warranted for DJD of the right knee with limitation of extension. The Board also found that initial ratings in excess of 10 percent prior to September 29, 2020 and 20 percent thereafter are not warranted for right knee instability. Additionally, the Board finds that a separate 20 percent initial rating is warranted for medial and lateral meniscal tears of the right knee from the date of service connection. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, claimed as secondary to service-connected right knee disability, is remanded. 2. Entitlement to service connection for a lumbar spine disability, claimed as secondary to service-connected right knee disability, is remanded. 3. Entitlement to service connection for a left knee disability, claimed as secondary to service-connected right knee disability, is remanded. 4. Entitlement to service connection for a left shoulder disability, claimed as secondary to service-connected right knee disability, is remanded. 5. Entitlement to service connection for a bilateral hip disability, claimed as secondary to service-connected right knee disability, is remanded. 6. Entitlement to service connection for a bilateral thigh disability, claimed as secondary to service-connected right knee disability, is remanded. 7. Entitlement to service connection for partial loss of use of bilateral lower extremities is remanded. 8. Entitlement to service connection for right upper radiculopathy radicular pain is remanded. 9. Entitlement to service connection for femoral radicular pain of the bilateral lower extremities is remanded. In the September 2019 Remand, the Board instructed that the Veteran be afforded a VA medical opinion to address outstanding questions of nexus as to the claims of entitlement to service connection for disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities. The examiner was instructed provide an opinion as to whether the identified disabilities had their onset in service or are related to his active duty service or any incident therein, to include any injuries sustained as a parachutist, or were caused or aggravated (i.e., any increase in the severity of the condition beyond its natural progression) by his service-connected right knee disabilities. The Board specifically indicated that the examiner must provide complete rationale for all opinions to include addressing the Veteran's report of in-service injuries and continuous symptoms since his injuries in service and the February 2014 and May 2018 private physician's opinions. Upon remand, the Veteran was provided separate VA medical opinions in September 2020 as to the claimed disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities. Unfortunately, as indicated in the January 2021 Written Brief Presentation, the September 2020 VA examiner failed to address the Veteran's report of in-service injuries with continuous symptoms dating from service, as well as the February 2014 and May 2018 private opinions. Accordingly, given the inadequacy of the September 2020 VA opinions, the RO failed to ensure substantial compliance with the Board's September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter must therefore be remanded in order to obtain new VA medical opinions to address outstanding questions of nexus and aggravation. The Board notes that, as Dr. M.T. has submitted supplemental opinions dated July 2019 and March 2020, these medical opinions should also be addressed in the new VA opinion(s). 10. Entitlement to a TDIU prior to May 16, 2018 is remanded. The matter of entitlement to a TDIU prior to May 16, 2018 is inextricably intertwined with the matters of entitlement to service connection for disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise, other than the examiner who provided the September 2020 medical opinions, to address the etiology of the claimed disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then provide an opinion as to the following: (a). With respect to the Veteran's disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities, is it at least as likely as not that the identified disability was incurred in the Veteran's active duty service to include as due to reported injuries sustained as a parachutist? In providing this opinion, the clinician must consider the Veteran's reported injuries and symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are his reports generally inconsistent with medical knowledge or implausible? (b). If not, is it at least as likely as not that the disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities were caused by the service-connected right knee disability? (c). If not, is it at least as likely as not that the Veteran's disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities are aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected right knee disabilities? If the Veteran's disabilities of the cervical spine, lumbar spine, left knee, left shoulder, bilateral hips, bilateral thighs, partial loss of use of lower extremities, right upper extremity radicular pain, and femoral radicular pain of the bilateral lower extremities are aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.