Citation Nr: 21029439 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 09-42 218A DATE: May 13, 2021 ORDER Before May 8, 2013, a rating in excess of 10 percent for a left knee disability based on a limitation of motion is denied. On and after May 8, 2013, a rating in excess of 30 percent for a left knee disability based on a limitation of motion is denied. Before October 13, 2020, a 10 percent rating for a left knee disability based on instability is granted. On and after October 13, 2020, a rating in excess of 10 percent for a left knee disability based on instability is denied. A rating in excess of 40 percent for a right knee disability based on a limitation of motion is denied. Before October 13, 2020, a 10 percent rating for a right knee disability based on instability is granted. On and after October 13, 2020, a rating in excess of 10 percent for a right knee disability based on instability is denied. A 10 percent rating for a right knee disability based on the symptomatic removal of the semilunar cartilage is granted. REMANDED Service connection for cardiomyopathy is remanded. FINDINGS OF FACT 1. Before May 8, 2013, the Veteran's left knee disability did not result in 45 degrees of flexion or fewer, 15 degrees of extension or greater, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. On and after May 8, 2013, the Veteran's left knee disability did not result in 45 degrees of flexion or fewer, 30 degrees of extension or greater, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 3. The Veteran's left knee disability has resulted in slight instability throughout the appeals period; at no time, however, has the left knee disability resulted in moderate instability, an unrepaired or failed repair of a complete ligament tear, a sprain, an incomplete ligament tear, a repaired complete ligament tear, recurrent patellar instability, or impairment of the semilunar cartilage. 4. The Veteran's right knee disability has not resulted in 45 degrees of flexion or fewer, 45 degrees of extension or greater, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 5. The Veteran's right knee disability has resulted in slight instability and the symptomatic removal of the semilunar cartilage throughout the appeals period; at no time, however, has the right knee disability resulted in moderate instability, an unrepaired or failed repair of a complete ligament tear, a sprain, an incomplete ligament tear, a repaired complete ligament tear, or recurrent patellar instability. CONCLUSIONS OF LAW 1. Before May 8, 2013, the criteria for a rating in excess of 10 percent for a left knee disability on the basis of impaired motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5261. 2. On and after May 8, 2013, the criteria for a rating in excess of 30 percent for a left knee disability on the basis of impaired motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5261. 3. Before October 13, 2020, the criteria for a 10 percent rating for a left knee disability on the basis of instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257. 4. On and after October 13, 2020, the criteria for a rating in excess of 10 percent for a left knee disability on the basis of instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating in excess of 40 percent for a right knee disability on the basis of impaired motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5261. 6. Before October 13, 2020, the criteria for a 10 percent rating for a right knee disability on the basis of instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257. 7. On and after October 13, 2020, the criteria for a rating in excess of 10 percent for a right knee disability on the basis of instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257. 8. The criteria for a rating of 10 percent for a right knee disability on the basis of the symptomatic removal of the meniscus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to December 1988 and from February 1991 to July 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Agency of Original Jurisdiction (AOJ) that denied service connection for cardiomyopathy, continued an existing 40 percent rating of a right knee disability based on a limitation of motion, and granted service connection for a left knee disability and assigned a 10 percent rating based on a limitation of motion. A June 2013 rating decision increased the rating of the left knee disability based on a limitation of motion to 30 percent effective May 8, 2013. The Veteran appealed these determinations, and in September 2014, the Board denied the Veteran's claims for service connection for cardiomyopathy and for bilateral knee ratings in excess of those described above. As will be discussed in greater detail below, the United States Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Partial Remand (Joint Motion), vacated the Board's September 2014 denial of the Veteran's claims and remanded these issues to the Board for further development. These issues were most recently before the Board in April 2020, when it remanded the Veteran's claims in order to afford the Veteran with an additional examination addressing the current severity of his bilateral knee disabilities. In October 2020, the Veteran underwent an examination addressing the severity of his bilateral knee disability. The Board finds that the AOJ has substantially complied with its April 2020 remand directives, and it will proceed to an opinion. A January 2021 rating decision granted 10 percent ratings based on instability of the bilateral knees effective October 13, 2020. The Veteran participated in a videoconference hearing before the undersigned in June 2012, and a transcript of this hearing has been associated with the record. Increased Ratings The Veteran's left knee is rated 10 percent disabling based on limitation of motion before May 8, 2013, and 30 percent disabling thereafter. The Veteran's right knee is rated 40 percent based on limitation of motion. The bilateral knees are not rated on the basis of instability before October 13, 2020, and they are rated 10 percent disabling thereafter. The Veteran contends that he is entitled to greater ratings. 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 32000, 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. The Board will first address whether greater ratings are warranted based on a limitation of motion of the knees. Separate evaluations may be assigned for limitation of flexion and extension of the same knee joint. Limitation of flexion to 45 degrees warrants a 10 percent rating, a limitation to 30 degrees warrants a 20 percent rating, and a limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of extension to 10 degrees warrants a 10 percent rating, a limitation to 15 degrees warrants a 20 percent rating, a limitation to 20 degrees warrants a 30 percent rating, a limitation to 30 degrees warrants a 40 percent rating, and a limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The above-mentioned changes to the musculoskeletal regulations did not make any changes to Diagnostic Codes 5260 or 5261. The Veteran filed his claim in October 2007. June 2008 x-rays showed severe degenerative changes of both knees. The Veteran underwent an examination in July 2008, at which time he complained of progressively worsening bilateral knee pain. The Veteran indicated that he experienced flare-ups with prolonged sitting or excessive walking, during which time he could barely stand and was slowed down. The examiner indicated that the Veteran experienced severe daily flare-ups affecting the right knee and mild daily flare-ups affecting the left knee. The right knee showed symptoms of pain, stiffness, weakness, decreased speed of joint motion, tenderness, and guarding of movement. The left knee showed symptoms of pain, stiffness, and weakness. The Veteran could stand up to one hour, and he could walk a quarter mile. The left knee had extension to 0 degrees and flexion to 110 degrees without pain. The right knee had extension to 5 degrees and flexion to 90 degrees with pain. While repetitive motion testing resulted in pain, it did not result in an additional loss of motion or other functional loss. There was no ankylosis. In July 2012, a private clinician noted the Veteran's complaints of constant bilateral knee pain that flared up "occasionally" in the left knee and monthly in the right knee. The Veteran indicated that he could only walk for one block and could stand for about five minutes. The right knee had flexion to 100 degrees and extension to 10 degrees. The left knee had flexion to 105 degrees and extension to 8 degrees. The Veteran had pain with movement, and the clinician noted crepitus in both knees. The Veteran underwent an additional examination in May 2013, at which time the Veteran stated that he experienced flare-ups of pain and swelling in both knees with changes in the weather, prolonged sitting, and prolonged standing. During such flare-ups, the Veteran experienced greater difficulty walking. The left knee had extension to 0 degrees and flexion to 105 degrees with pain at 80 degrees. Repetitive motion testing of the left knee resulted in extension to 0 degrees and flexion to 95 degrees with functional loss in the form of less movement than normal, painful movement, and swelling. During flare-ups, the left knee had extension to 20 degrees and flexion to 75 degrees. The right knee had extension to 30 degrees and flexion to 80 degrees with pain at 70 degrees. Repetitive motion testing of the right knee resulted in extension to 15 degrees and flexion to 80 degrees with functional loss in the form of less movement than normal, weakened movement, excess fatigability, painful movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. During flare-ups, the right knee had extension to 20 degrees and flexion to 80 degrees. Both knees showed tenderness of pain to palpation. There was no ankylosis. The Veteran underwent an additional examination in January 2017, at which time the Veteran complained of flare-ups of pain and stiffness brought on by weather changes, standing, walking, and bending. The Veteran had right knee flexion to 90 degrees with pain and extension to 0 degrees; the examiner noted that such pain did not result in a functional loss. The Veteran had left knee flexion to 100 degrees with pain and extension to 0 degrees; the examiner noted that such pain did not result in a functional loss. Both knees showed crepitus, pain with weight bearing, and tenderness or pain on palpation. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner could not say without speculation whether repeated use over time or flare-ups would result in an additional loss of function. There was no ankylosis. The Veteran underwent an additional examination in March 2018, at which time the Veteran reported experiencing flare-ups of pain and swelling with walking. The Veteran had right knee flexion to 98 degrees and extension to 22 degrees; with non-weight-bearing and passive motion, the right knee had flexion to 90 degrees and extension to 30 degrees. In a standing position while bearing weight, the right knee had flexion to 60 degrees and extension to 22 degrees. The Veteran had left knee flexion to 108 degrees and extension to 0 degrees; with non-weight-bearing and passive motion, the left knee had flexion to 108 degrees and extension to 10 degrees. In a standing position while bearing weight, the left knee had flexion to 90 degrees and extension to 0 degrees. The Veteran showed pain with all motion, and such pain resulted in a functional loss. Both knees showed pain with weight bearing, and tenderness or pain on palpation; the right knee additionally showed crepitus. Repetitive use testing resulted in additional functional loss as the result of pain, weakness, and a lack of endurance, causing a limitation of right knee flexion to 70 degrees, right knee extension to 25 degrees, left knee flexion to 100 degrees, and left knee extension to 5 degrees. The examiner could not say without speculation whether repeated use over time or flare-ups would result in an additional loss of function. There was no ankylosis. The Veteran underwent an additional examination in October 2019, at which time the Veteran complained of flare-ups of symptoms with weather changes and prolonged weight-bearing activities. The right knee showed flexion to 100 degrees with pain and extension to 0 degrees. The left knee showed flexion to 110 degrees with pain and extension to 0 degrees. While the Veteran experienced pain with flexion, the examiner found such pain not to contribute to a functional loss. The Veteran had pain with weight bearing, but no crepitus or objective evidence of localized tenderness or pain on palpation. Repetitive use testing, repeated use over time, and flare-ups did not result in additional loss of motion or other functional loss. There was no ankylosis. The Veteran underwent an additional examination in October 2020, at which time the Veteran complained of pain, swelling, difficulty walking, difficulty standing for more than 5 minutes, and an inability to bend. The Veteran stated that increased activity caused flare-ups of moderate symptoms every day. Flare-ups of the right knee lasted up to 2 hours, and flare ups of the left knee lasted up to 3 hours. The Veteran had right knee flexion to 70 degrees with pain and extension to 0 degrees with pain. The Veteran had crepitus and pain with weight bearing and passive motion; there was no pain with non-weight bearing. There was objective evidence of localized tenderness or pain on palpation of the right knee. Repetitive use testing resulted in additional loss of function as the result of pain and fatigue, but this functional loss did not result in an additional limitation of motion. Repeated use over time resulted in an additional loss of function as the result of pain and a lack of endurance, but this functional loss did not result in an additional limitation of motion. Flare-ups resulted in an additional loss of function as the result of pain, fatigue, and a lack of endurance, but this functional loss did not result in an additional limitation of motion. There was no ankylosis. The Veteran had left knee flexion to 80 degrees with pain and extension to 0 degrees with pain. The Veteran had crepitus and pain with weight bearing and passive motion; there was no pain with non weight bearing. There was objective evidence of localized tenderness or pain on palpation of the left knee. Repetitive use testing resulted in additional loss of function as the result of pain, fatigue, and a lack of endurance, but this functional loss did not result in an additional limitation of motion. Repeated use over time resulted in an additional loss of function as the result of pain, fatigue, and a lack of endurance, which would limit the left knee to 70 degrees of flexion and 0 degrees of extension. Flare-ups resulted in an additional loss of function as the result of pain and a lack of endurance, which would limit the left knee to 70 degrees of flexion and 0 degrees of extension. There was no ankylosis. In addition to the results of these examination reports, the Board has considered the medical records relating to the Veteran's bilateral knee disability, which document the Veteran's consistent complaints of chronic knee pain and show a symptom picture that is broadly consistent with that shown in the above examination reports. For example, in December 2006, range of motion testing of both knees was normal. In August 2007, range of motion testing of the right knee showed a limitation of extension to 10 degrees. In December 2008, the right knee showed flexion to 100 degrees and extension to 5 degrees; the left knee showed flexion to 105 degrees and full extension. In addition to the medical evidence, consideration has been given to lay statements describing the nature of the Veteran's bilateral knee disability. For example, during the Veteran's June 2012 hearing before the undersigned, the Veteran stated that he experienced symptoms such as pain, swelling, and stiffness with sitting and standing. Turning to an analysis of this evidence, the Board will evaluate whether greater ratings are available on the basis of impairment of motion. Neither of the Veteran's knees are currently rated on the basis of impaired flexion. A compensable rating for impaired knee flexion requires a limitation to 45 degrees or fewer. Neither of the Veteran's knees has shown flexion limited to 45 degrees or fewer, even when taking factors such as pain into consideration, or when considering the Veteran's motion with weight bearing, upon repeated use, repeated use over time, or during flare-ups. A compensable rating for either of the Veteran's knees based on a limitation of flexion is therefore unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. With regard to greater ratings based on an impairment of extension, the Veteran's right knee is rated 40 percent disabling on this basis. A maximum 50 percent rating based on an impairment of extension requires a limitation to 45 degrees or greater. The right knee has not shown extension that has been limited to this extent, even when taking factors such as pain into consideration, or when considering the Veteran's motion with weight bearing, upon repeated use, repeated use over time, or during flare-ups. A rating of the right knee in excess of 40 percent on the basis of impaired extension is therefore unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's left knee is rated 10 percent disabling based on limited extension before May 8, 2013, and 30 percent disabling thereafter. A greater rating before May 8, 2013, on this basis requires a limitation to 15 degrees or greater. Before May 8, 2013, the left knee did not show extension limited to this extent, even when taking factors such as pain into consideration, or when considering the Veteran's motion with weight bearing, upon repeated use, repeated use over time, or during flare-ups. Indeed, the Board notes that in July 2012, a private clinician noted a limitation of flexion of the left knee to 8 degrees. Accordingly, before May 8, 2013, a rating of the left knee in excess of 10 percent on the basis of impaired extension is unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. A rating in excess of 30 percent based on impaired extension of the left knee on and after May 8, 2013, requires a limitation to 30 degrees or greater. Since that time, the left knee has not shown extension limited to this extent, even when taking factors such as pain into consideration, or when considering the Veteran's motion with weight bearing, upon repeated use, repeated use over time, or during flare-ups. Accordingly, on and after May 8, 2013, a rating of the left knee in excess of 30 percent on the basis of impaired extension is unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. When making these determinations, the Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. VA examiners have noted the Veteran's complaints such as pain, and the Board has taken those complaints into consideration in its above discussion. Indeed, the pain and functional impairment associated with the Veteran's motion partially form the basis of the existing ratings for the impaired motion of the Veteran's knees. The Board finds that the evidence does not support a finding that the Veteran's functional loss causes a level of disability beyond the above discussed range of motion testing. The Board has also considered the effects of flare-ups on the Veteran's functioning. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board has considered the Veteran's reports of the nature and extent of his flare-ups of bilateral knee symptoms and finds that such reports do not warrant greater ratings than those currently assigned. The evidence does not support a finding that the Veteran's reported flare-ups additionally limit his functional ability in a quantifiable way, and they are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Available treatment records contain few, if any, findings pertaining either to flare-ups or to the Veteran's functional ability during a flare-up or after repeated use over time. The Board will next consider whether the Veteran is entitled to separate ratings under Diagnostic Code 5257, applicable to instability of the knee, under the old criteria before February 7, 2021, and both the old and new rating criteria on and after February 7, 2021. The Board will then apply the criteria that is most favorable to the Veteran. Under the criteria in effect before February 7, 2021, 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 (2020). "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 May 11, 2021). This term 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. Under the criteria in effect as of February 7, 2021, Diagnostic Code 5257 contains two sections for rating instability of the knee. 38 C.F.R. § 4.71a. The first addresses recurrent subluxation or instability, and the second addresses 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 May 11, 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). Turning to the facts in this case, in July 2008, an examiner noted that the right knee showed signs of giving way, instability, clicking, snapping, and grinding, but no episodes of dislocation, subluxation, locking, or effusion. The left knee showed clicking, snapping, and grinding, but no other such signs. While the examiner observed no patellar abnormalities of either knee, the examiner noted that the Veteran had a meniscal tear of the right knee. In November 2008, the Veteran underwent an arthroscopic meniscectomy to correct a torn medial meniscus of the right knee. In July 2012, a private clinician noted the Veteran's report of knee swelling when sitting for more than 30 minutes. Drawer tests were negative in both knees. In May 2013, the Veteran complained of intermittent swelling of both knees. Joint stability testing of both knees was normal, and the examiner indicated that there was no history or evidence of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran had experienced a meniscal tear of the right knee with frequent episodes of joint pain and effusion, but no episodes of locking. The examiner observed that the Veteran had undergone a meniscectomy but experienced no residual signs or symptoms. In January 2017, an examiner noted that the Veteran had suffered a meniscal tear of the right knee. The Veteran indicated that he experienced swelling and intermittent locking of both knees. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability testing was normal. The Veteran had experienced a meniscal tear of the right knee that resulted in frequent episodes of joint pain. In March 2018, an examiner noted no swelling upon examination but acknowledged the Veteran's report that he experienced recurrent effusion into the knees, with increased swelling of the knees with activity. There was no history of recurrent subluxation, lateral instability, and joint stability testing was normal. The Veteran had experienced a meniscal tear of the right knee that resulted in frequent episodes of joint pain. The examiner stated that there was no instability of either knee. In October 2019, there was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability testing was normal. The Veteran had experienced a meniscal tear of the right knee but did not associate any symptoms with such condition. In October 2020, an examiner noted the Veteran's complaints of swelling of the knees. The Veteran did not have a history of recurrent subluxation, lateral instability, or effusion of either knee. Joint stability testing of the right knee was abnormal, showing 1+ (0-5mm) laxity for anterior, posterior, medial, and lateral instability testing. Joint stability testing of the left knee was abnormal, showing 1+ (0-5mm) laxity for medial and lateral instability testing; anterior and posterior instability testing was normal. The Veteran had experienced a meniscal tear of the right knee resulting in frequent episodes of joint locking and pain. The left knee had no meniscal symptoms. There was no history of recurrent patellar dislocation. In addition to the results of these examination reports, the Board has considered the medical records relating to the Veteran's bilateral knee disability. Since filing his appeal, the Veteran has sought treatment for symptoms associated with instability and meniscal impairment, including swelling. For example, in August 2007, a clinician noted that the Veteran's right knee was enlarged with severe swelling and soft tissue edema. These records show a symptom picture that is broadly consistent with that shown in the above examination reports. Consideration has also been given to lay statements describing the nature of the Veteran's bilateral knee disability. For example, during his June 2012 hearing before the undersigned, the Veteran stated that his left knee gave way when walking approximately three times a month. The Veteran stated that he used a cane and had fallen and stumbled as the result of knee instability. Turning to an analysis of these facts, the Veteran's knees are not rated on the basis of instability before October 13, 2020, and both are rated 10 percent disabling on this basis thereafter. The Board will assess whether greater ratings are available to the Veteran. As an initial matter, in its August 2015 Joint Motion, the Court found that the Board's September 2014 decision erred by inadequately explaining why it assigned greater probative weight to the medical evidence than the lay evidence addressing instability. With such guidance in mind, the Board will explain the weight that it assigns to the evidence of record. The Board will first address whether either of the Veteran's knees warrant greater ratings on the basis of instability under the criteria of Diagnostic Code 5257 that were in effect before February 7, 2021. The Board finds that 10 percent ratings for instability of both knees are warranted before October 13, 2020. In making this determination, the Board observes that the AOJ's January 2021 rating decision awarded the Veteran with 10 percent ratings for each knee on the basis of the findings of instability in the October 2020 examination report. While it is true that October 2020 was the first time joint that an examiner found the Veteran's knees to be unstable, the examination report is by nature a backwards-looking account of the Veteran's symptoms of instability. The Veteran complained of subjective symptoms of instability before this time. For example, in July 2008, the Veteran described his right knee giving way. In June 2012, the Veteran described his left knee giving way while walking. The Board, consistent with both the evidence of record and the guidance of the Court's August 2015 Joint Motion, finds that a single 10 percent rating on the basis of slight joint instability is warranted throughout the appeals period. A 10 percent rating for instability of the bilateral knees is therefore warranted before October 13, 2020. With that said, a rating in excess of 10 percent, which requires a finding of moderate recurrent subluxation or lateral instability, is unwarranted at any time. Before October 2020, examiners consistently found that the Veteran did not have a history of recurrent patellar subluxation or dislocation, and joint stability testing was consistently normal. While the Board has found that the Veteran's lay accounts of his symptoms of giving way indeed support a finding that he has experienced slight instability of the knees, it also finds that such accounts do not themselves support a finding of moderate instability of the knees. If the Veteran's symptoms of knee instability were indeed of a moderate degree, it would have been likely that the Veteran would have sought treatment for such symptoms, which the weight of the evidence does not support. The Board finds that the weight of the medical evidence is against a finding that the Veteran suffered moderate instability of the knees, and for the reasons assigned above, it assigns greater weight to the medical evidence than to the lay evidence in making this determination. A rating in excess of 10 percent for instability of the bilateral knees is unwarranted at any time. Having analyzed the appropriate ratings under the criteria of Diagnostic Code 5257 that were in effect before February 7, 2021, the Board will next address whether the Veteran's knees warrant ratings in excess of 10 percent on the basis of instability under the provisions of Diagnostic Code 5257 that are effective on and after February 7, 2021. Under these new criteria, a rating in excess of 10 percent based on recurrent subluxation or instability of the knees requires an unrepaired or failed repair of a complete ligament tear, a sprain, an incomplete ligament tear, or a repaired complete ligament tear. In this case, while the Veteran has experienced a tear and surgical repair of the meniscus (which is addressed under other diagnostic criteria) he has not experienced a ligament tear or a sprain of either knee. A rating in excess of 10 percent on the basis of recurrent subluxation or instability under the provisions of Diagnostic Code 5257 that are effective on and after February 7, 2021, is thus unwarranted. The provisions of Diagnostic Code 5257 that are effective on and after February 7, 2021 provide for greater ratings based on patellar instability. A rating in excess of 10 percent under these provisions are, however, unwarranted because the weight of the evidence does not show that the Veteran has experienced recurrent instability of the patellofemoral complex. Indeed, the October 2020 examiner found the Veteran not to have a history of patellar dislocation. A rating in excess of 10 percent on the basis of patellar instability under the provisions of Diagnostic Code 5257 that are effective on and after February 7, 2021, is thus unwarranted. Having determined that the Veteran's knees each warrant a maximum 10 percent rating on the basis of instability throughout the appeals period under both the old or new criteria established under Diagnostic Code 5257, the Board will next assess whether additional ratings are available to the knees on the basis of impairment of the semilunar cartilage. A maximum 20 percent rating is available under Diagnostic Code 5258, which is applicable to dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. A rating under this Diagnostic Code is unwarranted for either of the Veteran's knees. The evidence does not show meniscal symptoms affecting the left knee. While the evidence indeed shows meniscal symptoms affecting the right knee, the Veteran has not experienced a dislocation of the semilunar cartilage (that is, the meniscus). A rating of either knee under Diagnostic Code 5258 is thus unavailable. Diagnostic Code 5259, applicable to symptomatic removal of the semilunar cartilage, provides for a maximum 10 percent rating. See 38 C.F.R. § 4.71a. A rating under this Diagnostic Code is unwarranted for the left knee because the Veteran has not undergone a removal of the semilunar cartilage of the left knee. A rating under this Diagnostic Code is, however, warranted for the Veteran's right knee because the Veteran underwent a meniscectomy in November 2008. The record indicates that the Veteran has experienced symptoms as a result of this procedure, with clinicians noting symptoms such as effusion (May 2013) and locking (January 2017). With the Veteran experiencing symptoms following the removal of the semilunar cartilage of the right knee, a 10 percent rating is warranted under Diagnostic Code 5259. The Board's grant of a separate evaluation based on the symptomatic removal of the Veteran's right meniscus does not result in impermissible "pyramiding", or the evaluation of the same manifestation of a disability under different diagnostic codes. See 38 C.F.R. § 4.14. The existing ratings of the right knee address painful motion (Diagnostic Code 5261) and instability (Diagnostic Code 5257), but they do not otherwise address his meniscal symptoms of effusion and locking. REASONS FOR REMAND The Board must again remand the Veteran's claim for service connection for cardiomyopathy in order to ensure that the claim is decided upon a complete evidentiary record. The Veteran contends his cardiomyopathy is either directly related to his service or secondarily related to his service-connected sleep apnea and bilateral knee disabilities. More specifically, the Veteran has argued that his knee disabilities impaired his ability to exercise, causing him to gain weight, which in turn resulted in the development or aggravation of cardiomyopathy. In this regard, in November 2012, the Board found that the Veteran's service-connected right knee disability led or contributed to his development of obesity. The Veteran has additionally argued that his sleep apnea aggravated his cardiomyopathy, including as the result of fluid retention around his heart. The Board most recently remanded this issue in April 2020, at which time it requested that an examiner opine as to whether the Veteran's cardiomyopathy was related directly to the Veteran's service, caused by his service-connected sleep apnea or bilateral knee disabilities, or aggravated by his service-connected sleep apnea or bilateral knee disabilities. The examiner was additionally asked to opine whether the Veteran's obesity was a substantial factor in causing the Veteran's cardiomyopathy, and whether the Veteran's cardiomyopathy would not have occurred but for the Veteran's obesity. In October 2020, an examiner provided a number of inadequate opinions in response to these requests. The examiner opined that the Veteran's cardiomyopathy was not related to his active duty service, noting only that the Veteran's service treatment records did not show treatment for a cardiac condition. The absence of in-service treatment for a claimed disability is not itself an adequate rationale for the examiner's conclusion. The Board therefore remands this issue in order to obtain an additional opinion addressing the direct relationship between the Veteran's cardiomyopathy and his service. The examiner stated that the Veteran's knee disability did not cause or aggravate his cardiomyopathy but did not explain this conclusion. The examiner further stated that the Veteran's sleep apnea did not cause his cardiomyopathy because the Veteran was diagnosed with sleep apnea after he was diagnosed with cardiomyopathy, which the Board finds to be an inadequate rationale. The examiner did not opine as to whether sleep apnea aggravated his cardiomyopathy. The examiner also failed to sufficiently address the question of whether the Veteran's obesity was a substantial factor in causing the Veteran's cardiomyopathy, and whether the Veteran's cardiomyopathy would not have occurred but for the Veteran's obesity. The matters are REMANDED for the following action: 1. Obtain the following addendum opinions from an examiner with expertise in assessing the etiology of cardiac disabilities, and not from the examiner who conducted the October 2020 examination. If the examiner determines that an additional examination is required in order to offer the following opinions, such an examination should be ordered. After reviewing the claims file, considering the medical evidence and lay contentions, the examiner should provide the following opinions: (a.) Is it at least as likely as not (that is, a 50 percent probability or greater) that cardiomyopathy had its onset in service or is otherwise etiologically related to service? When explaining this opinion, the examiner should note that the absence of in-service treatment for a cardiac condition is not itself an adequate justification for a negative opinion. (b.) Is it at least as likely as not (that is, a 50 percent probability or greater) that cardiomyopathy was caused by his service connected sleep apnea or bilateral knee disabilities? When rendering this opinion, the examiner should address the Veteran's contention that his sleep apnea has resulted in fluid retention around his heart. (c.) Is it at least as likely as not (that is, a 50 percent probability or greater) that cardiomyopathy underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service connected sleep apnea or bilateral knee disabilities. When rendering this opinion, the examiner should address the Veteran's contention that his sleep apnea has resulted in fluid retention around his heart. An "incremental increase in disability" is an additional impairment of earning capacity. Objective measurement or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) Was the Veteran's obesity, which the Board has found to be caused by the Veteran's knee disability, a substantial factor in the development of cardiomyopathy? (e.) Would the Veteran's cardiomyopathy have not occurred but for the Veteran's obesity? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.