Citation Nr: 21027633 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-19 049 DATE: May 6, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a left knee disability based on limitation of flexion is denied. Entitlement to a separate noncompensable rating for limitation of extension of the left knee is granted. Entitlement to a separate 20 percent rating, but not higher, for left knee instability is granted. Entitlement to a separate 20 percent rating, but not higher, for left knee locking, pain, and effusion is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's service-connected left knee disability is not productive of actual or functional flexion limited to 15 degrees; actual or functional extension limited to 10 degrees; ankylosis; impairment of the tibia and fibula; or genu recurvatum. 2. For the entire appeal period, the Veteran's left knee has been demonstrated by limitation of extension to 5 degrees. 3. For the entire appeal period, the Veteran has demonstrated moderate instability of the left knee. 4. For the entire appeal period, the Veteran has demonstrated frequent episodes of locking, joint pain, and effusion of the left knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left knee disability based on limitation of flexion are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate noncompensable rating for painful limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria for a separate rating of 20 percent, but not higher, for left knee instability throughout the claims period are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a separate rating of 20 percent, but not higher, for left knee locking, joint pain, and effusion throughout the claims period are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In August 2019, the Board denied the claim for entitlement to a rating in excess of 20 percent for a left knee disability. The Veteran appealed this issue to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding the Board's August 2019 decision to the extent it failed to adequately address whether a rating under Diagnostic Code 5257 (recurrent subluxation or lateral instability) is warranted. This claim has now returned to the Board for further action. When the case was previously before the Board in August 2019, the issues on appeal included entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to August 9, 2018. By rating decision issued in December 2019, an earlier effective date for the grant of a TDIU was granted, with an effective date of June 8, 2009. This award represents a full grant of the benefits sought on appeal, and the claim for an earlier effective date prior to August 9, 2018 for grant of entitlement to a TDIU, is no longer before the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Revised Criteria for Evaluating Musculoskeletal Disorders Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904 (d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904 (d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. Left Knee Disabilities A. Limitation of Motion The Veteran's service-connected left knee disability has been assigned a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. Here, the Veteran's left knee disability is rated by analogy using the criteria for limitation of flexion under Diagnostic Code 5260. Diagnostic Code 5260 provides that a 20 percent rating is assignable for flexion of the leg limited to 30 degrees. A 30 percent rating is assignable for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Court in Mitchell 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, 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 weightbearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In the instant case, in June 2009, the Veteran submitted a claim for an increased rating. His rating was continued as 20 percent disabled for his left knee disability under Diagnostic Code 5299-5260, in the December 2009 rating decision on appeal. The AOJ noted that although the Veteran did not meet the criteria for a 20 percent evaluation, a disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud. The AOJ added that the evaluation of this disability is protected under this provision of the law. The evidence of record includes hearing testimony in February 2009, in support of his separate claim to restore his previously reduced 20 percent rating for his left knee disability. At that time, the Veteran testified that he had a torn meniscus and that his knee occasionally gives out when going up and down stairs. He testified that his knee will "crickle and crackle every time I bend, or even move." At that time he was treated with Ibuprofen, injections, and physical therapy. He was contemplating surgery. He testified to an occasional use of a brace and a cane, however, it was unclear whether the assistive devices were prescribed by a physician. In addition to instability of the left knee, the Veteran testified that he has pain rated as 4-5, on a daily basis, and that he experiences flare-ups with prolonged walking, standing, or sitting. He testified that in addition to the knee giving out, it is impossible for him to squat due to weakness. He testified that his knee swells up, flares up, and that he has had his knee drained a couple of times. See February 2009 hearing transcript. A June 2009 VA physical therapy note indicates the Veteran had recently fallen on the steps. The Veteran was afforded a VA examination for his left knee condition in July 2009. At that time, the examiner noted diagnoses of chronic left knee strain, patella spurring of the left knee, exostosis of the posterior distal femur status post bone spur removal, and left knee residual scarring. The Veteran reported symptoms to include pain, weakness, stiffness, swelling, heat, redness, instability, giving way, and locking. Treatment included steroid injections and physical therapy. X-rays of the Veteran's left knee showed spurring of the tibial spines and patella. On examination, the Veteran displayed 110 degrees of left knee flexion, with extension to 0 degrees. There was no evidence of pain, fatigue, weakness, lack of endurance, or incoordination. There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. The examiner noted bone spur removal in 1985, no recurrent subluxation, pain and crunching in the knee joint, but no ankylosis. Stability testing was within normal limits. The Veteran reported flare-ups described as mild swelling, occurring one day per month, caused by prolonged standing. The examiner noted functional impairment described as mild impairment due to walking and standing limitations. The Veteran's gait was reported to be normal, and it was noted that the Veteran used a cane for support on long walks. The examiner noted scarring on the lateral side of the Veteran's left knee measuring 6 cm x 2 cm. There was no tenderness, no adherence to underlying tissue, no frequent loss of covering of skin over the scar. There was no elevation or depression of the surface contour of the scar on palpation. The scar was noted to be superficial without induration or inflexibility of skin in the area of the scar. There was no inflammation, edema, or keloid formation. There was no limitation of motion or function associated with the scar. A November 2009 physical therapy note referenced diagnostic testing that showed tricompartmental osteoarthritis of the left knee. There was MRI evidence of medial meniscus tear as well as possible lateral meniscus tear, and chondromalacia. A May 2012 orthopedic note documents continued knee pain. The physician noted the Veteran's symptoms are mostly pain, but that the Veteran does have occasional giving way and locking. He further indicated that the MRI of the Veteran's left knee is consistent with medial meniscus tear. It was noted that the physician discussed with the Veteran that his pain may be chondral injuries, but the mechanical symptoms may be meniscal. The Veteran was offered an injection or he could be placed on the list for arthroscopy. A June 2012 orthopedic note indicates the Veteran continued to have medial sided knee pain along with feelings of instability. A July 2015 treatment record documents left knee pain, with occasional swelling, and use of a cane when the Veteran feels his knee will give out. The Veteran had a negative McMurray test, had no crepitus, full range of motion (ROM), and moderate effusion with ballottable patella. He was diagnosed with osteoarthritis of the left knee with effusion. An October 2015 treatment record indicates the Veteran reported his left knee was very swollen and weak. A December 2015 treatment record noted steadily worsening, aching left knee pain. The Veteran reported that his knee had swelled up the past summer, and that his left knee occasionally gives out. On examination in December 2015 for the Veteran's left knee condition, the examiner noted a diagnosis of chondromalacia of the left knee. X-rays of the Veteran's left knee showed degenerative changes and joint effusion. The Veteran reported chronic left knee pain, described as continuous aching pain that is moderate in severity. The Veteran reported flare-ups depending on activities and weather of a severe nature. The Veteran reported that the duration of the flare-ups varied and that flare-ups are precipitated by kneeling, squatting, prolonged standing, prolonged sitting, prolonged walking, cold weather, damp weather, and weather changes. He reported that flare-ups are alleviated by heat/ice topically, rest, positional changes, and medication. The Veteran reported that when he experiences flare-ups there is pain, but no weakness, fatigue, or functional loss. He described the pain as going from 4-5 to 7-8. The Veteran reported regular use of cane for knee and back conditions. On examination, the Veteran displayed 125 degrees of left knee flexion, with extension to 0 degrees. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint and anterior tenderness to palpation. There was objective evidence of crepitus. The Veteran was reported to have been able to perform repetitive use testing with at least 3 repetitions, without additional functional loss or ROM after 3 repetitions. The examiner indicated that he was unable to give additional limitation of motion or function during a flare-up without resort to mere speculation. He noted that repetitive ROM remained the same and was not additionally limited. He noted pain throughout all movements, active and passive, to include repetitive use testing. He opined that it is more likely than not that pain, but not weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. He further opined that there is additional limitation due to pain with change in the baseline ROM due to "pain on use or during flare-ups." However, he indicated that it would be pure speculation to state what additional ROM loss would be present due to pain on use or during flare-ups since the Veteran was not examined during a flare-up. The examiner noted less movement than normal due to ankylosis, adhesions, etc. However, there was no evidence of ankylosis. The examiner noted there was no history of recurrent subluxation, instability, or effusion. Stability testing was within normal limits. The examiner noted that the Veteran did not have a meniscus condition, and there was no evidence of scarring. The examiner indicated that the Veteran's left knee disability impacts on his ability to work in that employment requiring prolonged standing or walking would not be recommended. A May 2016 treatment record indicated the Veteran has sharp pain medially three to four times a week, and that his knee gives out twice a week. The Veteran reported having had left knee surgery in approximately 1983. A subsequent May 2016 rheumatology note indicates chronic left medial knee pain that has been going on for several years and is worse with prolonged standing. At that time, the Veteran reported that he has periodically felt his knee giving out and then he has sharp pain that was happening more frequently. He reported improvement with physical therapy, and that his knee had been drained on a previous occasion. The Veteran reported that he is able to walk three to four blocks before pain intensifies and that he is able to slowly go up and down stairs with some instability and cane, with pain. The Veteran reported use of a knee brace as well. The Veteran reported previous surgery on his knee in 1985 for "bone spurs or something lose," and that it was "suspicious for meniscus tear at that time." The Veteran's past medical history included knee degenerative joint disease and torn menisci, and left knee surgery in 1985. Testing indicated positive mild left knee superomedial effusion, no tenderness, no warmth, no instability, and no crepitus. On examination, the Veteran displayed 110 degrees of left knee flexion, with extension to 5 degrees. There was pain with passive and active flexion of the left knee, and mild valgus of the left knee on weight bearing. The Veteran was diagnosed with left knee osteoarthritis with meniscal thinning. Pursuant to the Board's February 2018 remand, the Veteran was afforded a new VA knee and leg conditions examination. A retrospective opinion was also requested with regards to the Veteran's service-connected left knee disability. In addition to providing a retrospective evaluation, the examiner was requested to provide an examination assessing the current severity of the Veteran's left knee disability, as well as to provide a retrospective opinion addressing prior range of motion of the left knee, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain considering active and passive motion as well as weightbearing and non-weightbearing considerations and comparison, if possible, with the opposite undamaged joint from June 8, 2008 to present. On VA examination in August 2018, the examiner noted diagnoses of left knee meniscal tear, left knee arthritis, and left knee chondromalacia. The examiner stated that the Veteran is already service-connected for chondromalacia of the left knee which he developed in 1981. The examiner opined that this condition progressed to arthritis of the left knee in 2003 and into meniscal tear in 2000. The examiner noted the Veteran had surgery for left knee chondromalacia in 1985. The Veteran reported constant left knee pain that increases with standing, walking, bending at the knees, and in damp or cold weather. On examination, the Veteran displayed 125 degrees of left knee flexion, with extension to 0 degrees. Pain was noted on flexion and extension causing functional loss and pain was noted on passive range of motion testing. There was pain with weight bearing and non-weightbearing. There was objective evidence of localized tenderness or pain on palpation of joint described as diffusely tender. The Veteran was able to perform repetitive use testing with at least 3 repetitions with no additional functional loss or ROM after 3 repetitions. The Veteran reported flare-ups of the knee with functional loss described as decreased ROM. The examiner noted that the examination was being conducted during a flare-up. He remarked that pain occurred at the end of the ROM in each plane. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. The examiner noted less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, interference with standing, but there was no evidence of ankylosis. The examiner noted there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was within normal limits. The Veteran was noted to have a meniscus condition with frequent episodes of joint pain. The Veteran was reported to use a brace and cane due to back and knee conditions. The examiner noted that the Veteran could not do work that involves standing, walking, or bending at the knees. There was evidence of scarring. However, there was no evidence of painful scarring or unstable scarring. The Veteran's scar measured 6 cm x 1 cm on the lateral left knee. He added that the lateral left knee had 5 cm x 0.7 cm and 2 cm x 2 cm scars. With regards to the retrospective opinion, the examiner opined that it is not possible to provide a retrospective opinion addressing prior ROM of the left knee, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain - considering active and passive motion as well as weightbearing and non-weightbearing considerations and comparison, if possible, with the opposite undamaged joint from June 8, 2008 to present without resorting to speculation. He stated that there is no clear documentation of this information in the medical records other than a left knee ROM documented to be from 0-125 in December 2015. The examiner remarked that it is not possible to measure ROM of the knee in weightbearing. He explained that the ROM of the knees in active and passive and non-weightbearing are all the same and are as previously reported. He opined that it is at least as likely as not that the Veteran's left knee arthritis and his meniscal tears are progressions of his service-connected left knee chondromalacia. The Board finds the August 2018 VA examination to be adequate for rating purposes and that there has been substantial compliance with the February 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2018 VA examiner indicated the Veteran's left knee disability has progressed to osteoarthritis and a meniscal condition during the period on appeal. Although the August 2018 VA examiner did not say the degree at which painful motion began, the examiner did state that pain occurred at the end of the ROM in each plane. After a review of the evidence, the Board finds that the probative and competent evidence weighs against a finding of a rating in excess of 20 percent for the Veteran's left knee disability based on limitation of flexion throughout the appeal period. Although the criteria for this rating have not been met in terms of the measured degree of flexion, this rating was assigned on the basis that the level of functional impairment and symptoms associated with the Veteran's knee conditions were equivalent to the impact of flexion limited to 30 degrees. The Veteran has consistently reported pain in the left knee joint, characterized by swelling and increased pain with movement and overuse. This pain and swelling has been evident both in weightbearing, such as after prolonged standing, as well as in non-weightbearing, including prolonged sitting. He requires the help of assistive devices to include use of a cane and knee brace, on a regular basis. However, under Diagnostic Code 5260, in the absence of a greater degree of demonstrated limitation, no increased rating is warranted. Throughout the appellate period, the Veteran's flexion has been limited to no less than 110 degrees in the left knee. The August 2018 VA examiner opined that even during repeated use over time and flare-ups, the Veteran would experience no additional degree of limitation. The demonstrated and subjectively reported functional limitations simply do not approximate the criteria for the next higher, 30 percent rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, as noted by the AOJ in the December 2009 rating decision on appeal, the Veteran's left knee disability does not meet the criteria for a 20 percent evaluation based on limitation of flexion. However, a disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud. This rating has been in effect for 20 years or more and is thus protected. See 38 C.F.R. § 3.951 (b). The Board does, however, find that a separate rating under Diagnostic Code 5261 (limitation of extension) warrants a noncompensable rating for the period on appeal. Here, the May 2016 rheumatology note documents the Veteran's left knee extension was limited to 5 degrees on examination. Under Diagnostic Code 5261, a noncompensable rating is assignable for extension of the leg limited to 5 degrees. A 10 percent rating is assignable for extension of the leg limited to 10 degrees. A 20 percent rating is assignable for extension of the leg limited to 15 degrees. A 30 percent rating is assignable for extension of the leg limited to 20 degrees. A 40 percent rating is assignable for extension of the leg limited to 30 degrees. A 50 percent rating is assignable for extension of the leg limited to 45 degrees. Id. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 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 and not added, under Diagnostic Code 5003. The diagnostic codes that focus on limitation of motion of the knee include Diagnostic Code 5261 (limitation of extension). A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. The Board takes note of the Veteran's reports of functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. When considering the DeLuca factors, the Veteran's left knee manifested limitation of extension, at worse, to 5 degrees during the period on appeal. See May 2016 rheumatology note. However, this record did not show pain on extension. The August 2018 VA examination noted full extension (to 0 degrees) with evidence of painful motion. With regard to the issue of painful limitation of extension, the Board finds the Veteran is now being compensated for locking, pain, and effusion under Diagnostic Code 5258, hereinbelow. Therefore, the Veteran is not entitled to a separate compensable rating for painful limitation of extension as such would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. In sum, the Veteran's left knee disability is appropriately rated during the period on appeal, as 20 percent disabling for limitation of flexion under Diagnostic Code 5260. To this extent, the claim for an increased rating in excess of 20 percent for a left knee disability based on limitation of flexion is denied. An additional noncompensable rating is warranted for the Veteran's limitation of extension of the left knee for the period on appeal. B. Instability Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. As noted above, the rating criteria under Diagnostic Code 5257 changed on February 7, 2021. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, "severe" represented the highest or most extreme level of disability. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. "Nothing in [Code] 5257 provides that objective medical evidence is required or is to be favored over lay evidence." See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. Regarding 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 warrants a 30 percent rating, which is the highest allowable rating for 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, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). Id., Note (2). The Board notes that in order to obtain a rating in excess of 20 percent for instability under the new regulations, the Veteran is required to be prescribed from a medical provider a brace or assistive device and have persistent instability. However, recent medical evidence does not suggest the Veteran is prescribed any assistive device. Although the August 2018 VA examiner noted regular use of a brace and a cane, the medical evidence does not suggest that this was recently prescribed by a medical professional for current use. Moreover, the record indicates that the Veteran had an excision of the heterotopic bone of the left patella in December 1986 and was diagnosed with heterotropic ossification of the left patella. Additionally, while the Veteran uses a cane and a knee brace, it is unclear whether the assistive devices were prescribed by a physician. See February 2009 hearing transcript. Therefore, it would not be advantageous to rate the Veteran under the new regulations effective February 7, 2021. After review of the medical and lay evidence of record, the Board finds the Veteran's left knee exhibited moderate instability during the entire period on appeal. The Veteran reported left knee instability during the entire appeal period. See June 2009 treatment record indicating the Veteran had recently fallen on the steps; July 2009 VA examination wherein the Veteran reported symptoms to include instability and giving way; May 2012 orthopedic note documenting the Veteran's report of occasional giving way; July 2015 treatment record documenting the Veteran's report that his knee will give out; May 2016 treatment record documenting the Veteran's report that his knee gives out twice a week; and May 2016 rheumatology note documenting the Veteran's report that he has periodically felt his knee giving out and then he has sharp pain that was happening more frequently. Thus, while the record suggests the Veteran does have a history of falling during the long appeal period, the record reflects his left knee more frequently gave out, but did not result in falls. The record also reflects the Veteran's regular use of a cane and knee brace for support. Thus, the Board finds the Veteran's symptoms of giving away and use of a cane and a knee brace more closely reflects moderate instability throughout the entire appeal period, not severe instability. This moderate level of instability is also corroborated by the medical evidence. VA examiners tested the Veteran's left knee and concluded he had no instability. See July 2009, December 2015, August 2018 VA examinations. VA treatment records also indicate the Veteran had no instability. See July 2015 ("negative McMurray testing"); and May 2016 ("no instability on examination"). The Board finds the medical evidence reflecting no instability, when paired with the Veteran's lay statements of record, more nearly approximate the criteria for moderate instability under Diagnostic Code 5257. Accordingly, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5257 for moderate instability of the left knee throughout the period on appeal. The Board finds that a higher 30 percent evaluation is not warranted under the old version of Diagnostic Code 5257, for rating periods prior to February 7, 2021, and that a higher 30 percent evaluation is not warranted under the new version of Diagnostic Code 5257, beginning February 7, 2021, when it became effective. C. Locking, Pain, and Effusion The Board finds that a separate 20 percent rating is warranted for the left knee under Diagnostic Code 5258 for symptoms of locking, pain, and joint effusion. Under Diagnostic Code 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Although there are no findings of dislocated cartilage, the Veteran has consistently complained of locking and effusion, i.e. fluid and swelling, with respect to his left knee. See February 2009 hearing transcript wherein the Veteran testified that his knee has been drained "a couple of times"; July 2009 VA examination wherein the Veteran reported locking; May 2012 orthopedic note documenting the Veteran's report of locking; July 2015 treatment record documenting moderate effusion with ballottable patella; December 2015 VA examination wherein the examiner noted X-rays evidence of degenerative changes and joint effusion; and May 2016 rheumatology note documenting the Veteran's report of having had his knee drained, and testing which indicated positive mild left knee superomedial effusion. Based on the lay and medical evidence of frequent episodes of locking, pain, and effusion into the left knee joint, a 20 percent rating is warranted under Diagnostic Code 5258 for the Veteran's left knee throughout the period on appeal. The Board has considered whether the assignment of separate 20 percent rating for instability of the left knee under Diagnostic Code 5257 violates the rule against pyramiding as the Veteran is also now in receipt of a separate 20 percent rating under Diagnostic Code 5258 which contemplates dislocation of the knee. As indicated above, the evaluation of the same disability or the same manifestations under various diagnoses is prohibited. 38 C.F.R. § 4.14. Diagnostic Code 5258 contemplates dislocation of the cartilage of the knee which can result in giving way of the knee joint. Similarly, Diagnostic Code 5257 relates to instability and subluxation of the joint, i.e., incomplete or partial dislocation. See Dorland's Illustrated Medical Dictionary, 31st Ed. (2007), p.1817. Hence, rating the Veteran's left knee conditions under both diagnostic codes would violate the rule against pyramiding detailed in 38 C.F.R. § 4.14 if the symptomatology contemplated by both is not separate and distinct. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, however, the Board finds that the two diagnostic codes refer to sufficiently separate symptomatology. None of the examining VA physicians has identified dislocation of the joint and the Veteran's complaints of giving way and instability appear to refer to weakness of the knees instead of actual dislocation. The separate 20 percent rating under Diagnostic Code 5258 were assigned to account for the objective and subjective lay evidence of frequent knee locking, joint pain, and effusion (which have required draining) as opposed to dislocation. The Board, therefore, finds that the assignment of separate ratings under Diagnostic Codes 5257 and 5258 does not violate the rule against pyramiding in this specific case. In sum, for the entire claims period, the Veteran's left knee disability warrants a 20 percent rating under Diagnostic Code 5260 for limitation of flexion, a separate noncompensable rating under Diagnostic Code 5261 for limitation of extension, a separate 20 percent rating under Diagnostic Code 5257 for moderate instability, and a separate 20 percent rating under Diagnostic Code 5258 for locking, pain, and effusion. The Board has considered whether there is any other schedular basis for granting other higher or separate ratings but has found none. The Veteran has not demonstrated knee ankylosis, impairment of the tibia and fibula, or genu recurvatum and Diagnostic Codes 5256, 5262, and 5263 are not for application. A separate rating is also not appropriate under Diagnostic Code 5259 for removal of the semilunar cartilage. This diagnostic code provides for a maximum 10 percent rating and contemplates limitation of motion; therefore, assigning a separate rating under this diagnostic code would violate the rule against pyramiding. Additionally, it is noted that the Veteran's left knee disability involves surgical scarring. The August 2018 VA examiner indicated there is no evidence of painful or unstable scarring covering a total area greater than 39 square cm. Accordingly, a separate compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for any separate or increased schedular ratings in addition to the ratings assigned above. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.