Citation Nr: 21032275 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-09 216 DATE: May 26, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to August 28, 2020 for degenerative arthritis of the thoracolumbar spine is denied. Entitlement to an initial evaluation in excess of 20 percent since August 28, 2020 for degenerative arthritis of the thoracolumbar spine is denied. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee (limitation of flexion) is denied. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee (limitation of flexion) is denied. Entitlement an initial evaluation in excess of 20 percent for right knee meniscal debridement prior to July 27, 2016, is denied. Entitlement an initial evaluation in excess of 20 percent for right knee meniscal debridement from September 1, 2016, to August 28, 2020, is denied. Entitlement an initial evaluation in excess of 10 percent for right knee meniscal debridement since August 28, 2020, is denied. Entitlement an initial evaluation in excess of 10 percent for left knee status post meniscectomy, prior to November 17, 2016, is denied. Entitlement an initial evaluation in excess of 10 percent for left knee status post meniscectomy since August 28, 2020, is denied. REMANDED Entitlement an initial evaluation in excess of 10 percent for instability, left knee prior to July 30, 2014; in excess of 30 percent from July 30, 2014, to August 28, 2020; and for a compensable evaluation since August 28, 2020, is remanded. FINDINGS OF FACT 1. Prior to August 28, 2020, degenerative arthritis of the spine manifested as no worse than forward flexion of the thoracolumbar spine to 80 degrees. 2. Since August 28, 2020, degenerative arthritis of the spine manifested as no worse than forward flexion of the thoracolumbar spine to 60 degrees. 3. Osteoarthritis of the right knee has manifested, at worst, by limitation of motion to 90 degrees in flexion; extension was full. 4. Osteoarthritis of the left knee has manifested, at worst, by limitation of motion to 90 degrees in flexion; extension was full. 5. Prior to July 27, 2016, right meniscal debridement manifested as semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 6. From September 1, 2016, to August 28, 2020, right meniscal debridement manifested as semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 7. Since August 28, 2020, right meniscal debridement remained symptomatic, but did not show frequent episodes of "locking," pain, and effusion into the joint. 8. Prior to November 17, 2016, left knee status post meniscectomy, was symptomatic, but did not show frequent episodes of "locking," pain, and effusion into the joint. 9. Since August 28, 2020, osteoarthritis, left knee status post meniscectomy was symptomatic, but did not show frequent episodes of "locking," pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative arthritis of the spine, prior to August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating in excess of 20 percent for degenerative arthritis of the spine, since August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial rating in excess of 10 percent for osteoarthritis right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260. 4. The criteria for an initial rating in excess of 10 percent for osteoarthritis left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260. 5. The criteria for an initial rating in excess of 20 percent for right knee meniscal debridement prior to July 27, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 6. The criteria for an initial rating in excess of 20 percent for right knee meniscal debridement from September 1, 2016, to August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 7. The criteria for an initial rating in excess of 10 percent for right knee meniscal debridement from August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 8. The criteria for an initial rating in excess of 10 percent for left knee status post meniscectomy prior to November 17, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 9. The criteria for an initial rating in excess of 10 percent for left knee, status post meniscectomy from August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1982 to July 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2006 and August 2008 rating decisions by Regional Offices (ROs) of the United States Department of Veterans Affairs (VA). These issues were previously before the Board, most recently in June 2018 at which time they were remanded for additional development. During the pendency of the appeal, the RO issued a rating decision which granted separate evaluations for right knee meniscal debridement, left knee status post meniscectomy, and left knee instability. As the Veteran was not awarded the maximum benefit provided by the rating schedule for these disabilities, the issues remain on appeal as part of the appeal for increased left and right knee evaluations. Periods for which a temporary total evaluation has been assigned are not considered part of the current appeal, as the maximum benefit has been awarded for those stages. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in January 2006. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Lumbar Spine The Veteran is seeking increased evaluations for his lumbar spine disability. The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Code 5242. Code 5242 pertains to degenerative arthritis of the spine and directs that evaluations of the lumbar spine are to be rated under the General Rating Formula for Diseases. The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Code 5243. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Codes 5003, 5242, 5243). However, the general rating criteria for diseases and injuries of the spine remains unchanged under the new rating criteria. Pursuant to the general rating criteria for diseases and injuries of the spine, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal, kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: 60 percent: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; 40 percent: Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; 20 percent: Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 10 percent: Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Under the former rating criteria, Code 5242 evaluated Degenerative arthritis of the Spine (see also Code 5003). 38 C.F.R. § 4.71a, Code 5242 . Under the new criteria, Code 5242 applies to Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Code 5003 or 5010). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Code 5242). Under the former rating criteria, Code 5243 evaluated Intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Code 5243. Under the new criteria, Code 5243 still applies to Intervertebral disc syndrome; but more specifically as this code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Code 5242 for all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Code 5243). The Board finds that the appropriate Code for evaluating the Veteran's lumbar spine disability, based on the new regulations, is Code 5242, Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. The Veteran underwent a VA examination in January 2006. The Veteran stated that mid to lower back pain started in 2002 or 2003 with no defining injury. The back began hurting on a recurring basis every 2-3 months, lasting 1 week which has persisted to the present. Working out, bending and twisting is most likely to aggravate. Pain was reported on the spine and left side, mid to lower back and non-radicular, described as an aching pain with disrupts his sleep regularly. Range of motion of the lumbar spine was flexion from 0 to 80 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 22 degrees, left lateral flexion from 0 to 27 degrees, and right and left lateral rotation to 42 degrees bilaterally. Pain was present on extension, right lateral flexion, and bilateral rotation. The VA examiner noted medical records dated March 2005 diagnosing lumbago. X-rays taken at this examination revealed minimal degenerative changes of the thoracolumbar spine, T12 and L1, and the disc spaces were preserved. The VA examiner diagnosed low back pain, no pathology/etiology found to render a diagnosis, only subjective pain. A May 2008 MRI of the Veteran's lumbar spine revealed significant disc extrusion at L4-L5 level with impingement upon the corresponding left L5 traversing nerve root in the central recess and postero-central disc bulge at L5-S1 level with no nerve root compression. The Veteran underwent a VA back examination in February 2017. The VA examiner noted the Veteran's diagnosis of degenerative arthritis of the spine in 2006. Subjective complaints included worsening back pain. Flare-ups were reported as occurring 4 to 5 times a week on bending, twisting, and lifting and improve with extra strength Tylenol. Functional loss or functional impairment was described as decreased activities including bending, twisting or sudden movement. Range of motion was flexion from 0 to 80 degrees, extension from 0 to 10 degrees, bilateral lateral flexion from 0 to 20 degrees and bilateral lateral rotation from 0 to 20 degrees. Range of motion itself contributed to functional loss as a decreased ability to bend and lift. Pain was noted on examination, in all ranges of motion, and caused functional loss. There was no evidence of pain with weight bearing. Objective evidence of pain over lumbar paraspinal muscles was noted. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. No guarding for muscle spasm was present. Additional contributing factors of disability included less movement than normal due to ankylosis, adhesions, disturbance of locomotion, interference with sitting and interference with standing. Muscle strength test results were normal, and no muscle atrophy was present. Reflex and sensory examination results were normal. The Veteran did not have ankylosis of the spine. The VA examiner determined the Veteran did not have intervertebral disc syndrome. The Veteran uses a back brace when exercising and a cane for walking distances when he leaves his home. Arthritis was noted to be documented by x-rays. VA treatment records continue to reflect complaints of back pain through 2019. The Veteran underwent a VA contract back examination in August 2020. The VA contract examiner noted the Veteran's diagnosis of degenerative arthritis of the spine in 2006. The Veteran reported that his condition has worsened. Subjective complaints included shooting pain in posterior aspect of bilateral lower limbs. Treatment consists of muscle relaxant and pain killers as necessary. No flare-ups were reported. The Veteran reported functional loss or functional impairment of the thoracolumbar spine as an inability to maintain straight posture and using a cane for assistance. Range of motion of the lumbar spine was flexion from 0 to 60 degrees; extension from 0 to 20 degrees; bilateral lateral flexion from 0 to 20 degrees; and bilateral lateral rotation from 0 to 20 degrees. Range of motion contributed to functional loss as an inability to maintain straight posture, difficulty in walking straight, and usage of a cane. Pain was noted on examination in flexion and extension and caused functional loss. Objective evidence of localized tenderness or pain on palpation was noted as moderate pain in lumbar area related to degenerative arthritis of the spine. There was no evidence of pain with weight bearing. Repetitive use testing did not result in additional loss of range of motion. No guarding or muscle spasm was present. No additional contributing factors of disability were noted. Muscle strength test results were 5 out of 5. No muscle atrophy was present, and reflex and sensory test results were normal. No ankylosis of the spine was present. The VA contract examiner determined that the Veteran did not have IVDS. The Veteran used a cane for assistance with ambulation due to osteoarthritis of his knees and degenerative arthritis of his back. No objective evidence of pain on non-weight bearing or of pain on passive range of motion was present. Prior to August 28, 2020 The Board has carefully considered all the evidence and potentially applicable Codes, including the DeLuca factors, and finds that the disability picture of the Veteran's degenerative arthritis of the lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level. Motion is, at worst, limited to forward flexion to 80 degrees, warranting the currently assigned 10 percent rating, even upon consideration of the functional impact of pain with use and on flare-ups. Flexion is not reduced to less than 60 degrees, nor has the Veteran experienced incapacitating episodes to warrant assignment of a yet higher rating. The Board finds that the overall disability picture prior to August 28, 2020 is not severe enough to warrant assignment of an evaluation in excess of 10 percent. Therefore, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected degenerative arthritis of the thoracolumbar spine prior to August 28, 2020, is not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Since August 28, 2020 The Board has carefully considered all the evidence and potentially applicable Codes, including the DeLuca factors, and finds that the disability picture of the Veteran's lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level. Motion was, at worst, limited to forward flexion to 60 degrees, in August 2020, warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use and on flare-ups. The evidence shows that flexion is not reduced to less than 60 degrees, nor has the Veteran experienced incapacitating episodes to warrant assignment of a yet higher rating. The Board finds that the overall disability picture from August 28, 2020 does not warrant assignment of an evaluation in excess of 20 percent. Therefore, the Board finds that a rating in excess of 20 percent for the Veteran's service-connected degenerative arthritis of the thoracolumbar spine, from August 28, 2020, is not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Knees There are numerous Codes which are potentially applicable to evaluation of knee disabilities. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Codes 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262). Code 5003 formerly was assigned to evaluate arthritis, degenerative (hypertrophic or osteoarthritis. 38 C.F.R. § 4.71a, Code 5257. Code 5003 is now assigned to evaluate Degenerative arthritis, other than posttraumatic. The rating criteria remain unchanged; degenerative arthritis that is established by x-ray finding will be rated on limitation of motion under the appropriate Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a single 10 percent rating is assigned for involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there is motion of both knees, this Code is not applicable here. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Under the former criteria, a 10 percent evaluation is assigned for slight, recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Code 5257. Pursuant to the new criteria, Code 5257, recurrent subluxation or lateral instability, assigns a 10 percent evaluation 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 20 percent evaluation is assigned for 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 (e.g. cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is assigned 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. 38 C.F.R. § 4.71a, Code 5257 (Effective February 7, 2021). Additionally, pursuant to the new criteria for Code 5257, a 10 percent evaluation is assigned for patellar instability when the condition is diagnosed and involves the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provided for a brace, cane or walker. A 20 percent evaluation is assigned for diagnosed patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provided for one of the following: a brace, cane, or walker. A 30 percent evaluation is assigned for a diagnosed patellofemoral instability 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. Note (1) to Code 5257 for patellar instability, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) specifies that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Code 5257 (Effective February 7, 2021). Code 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking" pain, and effusion into the joint. 38 C.F.R. § 4.71a, Code 5258. Code 5259 assigns a 10 percent evaluation for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Code 5259. For limitation of motion, there are two potentially applicable Codes; the rating criteria for these codes were unaffected by the new regulations. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. Limitation to 5 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 10 degrees. Limitation to 15 degrees extension warrants a 20 percent evaluation. A 30 percent evaluation is assigned for limitation to 20 degrees of extension. A 40 percent evaluation is assigned for extension limited to 30 degrees. A 50 percent evaluation is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under the former criteria for Code 5262, tibia and fibula, impairment of, a 10 percent disability evaluation is assigned for malunion of with slight knee or ankle disability. A 20 percent disability evaluation is assigned for malunion with moderate knee or ankle disability. A 30 percent evaluation is assigned for malunion with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibular with loose motion, requiring brace. 38 C.F.R. § 4.71a, Code 5262. Pursuant to the new criteria for Code 5262, for medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is assigned for treatment for less than 12 consecutive months, one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of tibia and fibula is evaluated under Codes 5256, 5257, 5260, or 5261 for the knee, of 5270 or 5271 for the ankle whichever results in the highest evaluation. Nonunion of tibia and fibula with loose motion, requiring brace is assigned a 40 percent evaluation. 38 C.F.R. § 4.71a, Code 5262 (Effective February 7, 2021). In January 2006 the Veteran underwent a VA examination. The VA examiner noted the Veteran's left knee meniscal surgery in 1981. The Veteran reported that he was able to resume normal activity after one year. He had a third dislocation in 1991. An arthroscopy revealed there was too much damage to reconstruct the knee, so it was "cleaned up." Since that time, he has been told he is a candidate for knee replacement by that he is too young. Symptoms include daily pain, which is controlled by significant management of activities, including avoidance of weight bearing sporting activities, grinding, and popping in the knee, and pain going up and down stairs. The VA examiner noted the Veteran's documented left knee severe degenerative joint disease and need for a joint replacement. Range of motion of the left knee was flexion from 0 to 115 degrees and extension was normal. Crepitus was noted on range of motion and knee flexion was limited secondary to pain. The VA examiner noted the Veteran's history of significant internal derangement, left knee, with bilateral meniscectomy in 1981 and ACL deficiency with subsequent instability and subsequent degenerative tricompartmental arthritis. The VA examiner further noted that this is a significant issue for the Veteran, and that a recent orthopedic note discussed joint replacement and recommended a lateral unlocking brace and that this problem will continue with a joint replacement being inevitable. A May 2008 MRI report of the left knee revealed a bucket handle tear of the posterior horn of the lateral meniscus, chronic complete ACL tear, osteoarthritic changes in the left knee and moderate joint effusion. MRI of the right knee revealed grade II tear of posterior horn of lateral meniscus, degenerative osteo-arthritic changes in the right knee, and moderate joint effusion. The Veteran underwent a VA contract knee examination in July 2014. The VA contract examiner noted the Veteran's diagnosis of medial meniscus tear, and osteoarthritis of left knee. No flare-ups of the left knee were reported. Range of motion of the right knee was flexion from 0 to 130 degrees with objective evidence of pain at 120 degrees. Left knee flexion was from 0 to 120 degrees with objective evidence of pain at 110 degrees. Additional functional loss was described as excess fatigability bilaterally, pain on movement bilaterally, instability of station left knee, and disturbance of locomotion left knee. Pain on palpation of both knee joints was present. Muscle strength was normal bilaterally. Anterior instability of the left knee was present 3+. There was no evidence of patellar subluxation or dislocation. The Veteran's residual symptoms of left knee meniscectomy included frequent episodes of joint pain and joint effusion. X-rays revealed severe, degenerative arthritis, both knees, worse on left. The VA contract examiner noted that despite Veteran's age, total knee arthroplasty should be considered. A July 2016 Certification of Health Care Provider for Medical Leave indicates the Veteran sought medical leave due to pain and locking in his right knee and underwent right knee meniscal debridement in July 2016. VA treatment records dated November 2016 reflect the Veteran's initial visit to establish care. He reported complaints of chronic bilateral knee pain. Right knee pain was described as 9 to 10 out of 10 in intensity, resolved at rest. Left knee pain was described as 78 t to 8 out of 10 in intensity while walking, and as 5 out of 10 at rest. The Veteran underwent a VA knee examination in February 2017. The VA examiner noted the Veteran's bilateral knee pain, bilateral meniscal tears, and bilateral knee joint osteoarthritis. Flare-ups were reported bilaterally on weight-bearing, left worse than right. Functional loss and or functional impairment was described as inability to run, can't squat, and has to ascend and descend stairs one step at time using railing or cane to steady himself. Range of motion of the right and left knee was flexion from 0 to 90 degrees and extension from 90 to 0 degrees, bilaterally. Pain was noted on examination and causes functional loss bilaterally. Objective evidence of pain to touch over anterior knee was noted bilaterally. Additional factors contributing to disability were less movement than normal, due to ankylosis, adhesions, swelling, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was normal. No evidence of muscle atrophy or ankylosis was present. No history of recurrent subluxation or lateral instability was noted; a history of recurrent effusion was noted. No joint instability was present in either knee. The Veteran's history of bilateral meniscal tears was noted. Symptoms included frequent episodes of joint "locking," joint pain and joint effusion, bilaterally, were noted. The Veteran underwent a right knee meniscal debridement in 2016 and reported residual symptoms including pain and effusion. Residuals symptoms of left knee meniscectomy included pain and effusion. The Veteran required regular use of bilateral knee braces and a cane for assistance with ambulation. The Veteran attended physical therapy for his knees VA treatment records reflect continued treatment for complaints of bilateral knee pain. In March 2017, an MRI of the Veteran's left knee showed tricompartmental osteoarthritis, complete chronic tear of ACL, likely partial tear at the anterior origin of the MCL, findings suggesting tendinopathy, nondisplaced undersurface partial tear of the posterior horn of the medial meniscus. A June 2017 treatment note indicated the Veteran was given knee braces with improvement of symptoms and reported improved knee stability. A November 2017 treatment note indicated the Veteran had steroid injections in both knees two weeks earlier. VA treatment records show that in July 2018 the Veteran was fitted for bilateral knee wraps. 2019 Treatment records reflect bilateral primary osteoarthritis of the knee and bilateral knee pain. The Veteran underwent a VA contract knee examination in August 2020 noted the Veteran's diagnoses of osteoarthritis right knee with meniscal debridement and osteoarthritis left knee status post meniscectomy. The Veteran reported that his conditions have worsened. Subjective complaints included constant right knee pain. The Veteran did not report having flare-ups or any functional loss of the knees. Range of motion of the right knee was flexion from 0 to 120 degrees; extension from 120 to 0 degrees. Pain was noted on flexion. Objective evidence of localized moderate pain was noted in the medial aspect, osteoarthritis was noted. There was no evidence of pain on weight bearing and no evidence of crepitus. Range of motion of the left knee was flexion from 0 to 140 degrees; extension from 140 to 0 degrees. Pain was noted on flexion and there was objective evidence of moderate pain in the medial aspect of the left knee, osteoarthritis was noted. There was no evidence of pain with weight bearing and no evidence of crepitus. The Veteran was able to perform repetitive use testing which did not result in additional loss of function or range of motion bilaterally. No additional factors contributing to disability were noted for either knee. Muscle strength testing was 5 out of 5 bilaterally. No muscle atrophy and no ankylosis was present. Joint stability test results were normal bilaterally. Residual pain was noted from the Veteran's right meniscal tear with debridement and his left meniscal tear with meniscectomy. Pain and osteoarthritis were noted to be complications of each procedure. The Veteran was noted to use a cane for his osteoarthritis of the knees. Left and Right Knee Osteoarthritis, Flexion The Veteran is seeking increased evaluations in excess of 10 percent each for right knee osteoarthritis and left knee osteoarthritis. Hyphenated Codes are used when a rating under one Code requires use of an additional Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran's left and right knee osteoarthritis are evaluated under Code 5003-5260. The Veteran is currently evaluated under the criteria of Code 5260, for limitation of flexion of the leg. This Code provides that the provisions of Code 5003, for degenerative arthritis generally, are also potentially applicable; however, as a compensable evaluation is assigned under the Code specific to the affected body part, Code 5003 is not applied. 38 C.F.R. § 4.71a, Code 5003. Based upon the medical evidence of record, the RO granted service connection and assigned a 10 percent disability evaluation for each knee. The evidence does not show that the Veteran's symptoms meet the criteria for a 20 percent rating pursuant to Code 5260 because the Veteran does not have flexion limited to 30 degrees in either knee. Range of motion is limited to 90 degrees at most, bilaterally, with some functional impairment due to pain as noted on the examinations. Therefore, the currently assigned 10 percent disability rating for each knee contemplates the Veteran's diagnosed conditions and functional limitations and compensates him for such. See DeLuca. Accordingly, entitlement to initial ratings in excess of 10 percent for right knee osteoarthritis and for left knee osteoarthritis are not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Thus, the Board finds that the evidence of record is consistent with the 10 percent disability evaluations previously assigned for the Veteran's right knee osteoarthritis and for his left knee osteoarthritis and adequately compensates him for his symptoms. Right Knee Meniscal Debridement The Veteran is seeking increased evaluations for right knee meniscal debridement evaluated as 20 percent disabling prior to July 27, 2016 under Code 5003-5258; 20 percent disabling from September 1, 2016 to August 28, 2020, under Code 5003-5258; and as 10 percent disabling since August 28, 2020 under Code 5299-5259. Hyphenated Codes are used when a rating under one Code requires use of an additional Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran was granted a temporary total disability evaluation based on the need for convalescence due to his right knee meniscal debridement from July 27, 2016 to September 1, 2016. As the Veteran is in receipt of the maximum rating available for this period, the Board will not address entitlement to increased disability ratings for the right knee meniscal debridement for the period from July 27, 2016 to September 1, 2016. Prior to July 27, 2016; and September 1, 2016 to August 28, 2020 The Board has carefully considered all the evidence of record and potentially applicable Codes, including the DeLuca factors, and finds that the disability picture of the Veteran's osteoarthritis, right knee meniscal debridement most closely approximates the criteria associated with the 20 percent disability evaluation previously assigned for these appellate periods. This is the maximum disability provided for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion of the joint; symptoms the Veteran exhibited during these appellate periods. Consideration has been given to assigning a higher evaluation under a different Code; however, as the Veteran does not have any instability of the right knee, limitation of extension, or impairment of tibia and fibula, a higher disability evaluation under another Code is not warranted. Therefore, the currently assigned 20 percent disability ratings contemplate the Veteran's diagnosed condition and functional limitations and compensates him for such. See DeLuca. Accordingly, entitlement to an initial rating in excess of 20 percent prior to July 27, 2016, and to a rating in excess of 20 percent from September 1, 2016 to August 28, 2020 is not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Thus, the evidence of record is consistent with the 20 percent disability evaluations previously assigned for the Veteran's osteoarthritis, right meniscal debridement and adequately compensates him for his symptoms. Since August 28, 2020 The Board has carefully considered all the evidence of record and potentially applicable Codes, including the DeLuca factors, and finds that the disability picture of the Veteran's osteoarthritis, right knee meniscal debridement most closely approximates the criteria associated with the 10 percent disability evaluation previously assigned for this appellate period. This is the maximum disability provided for symptomatic removal of semilunar cartilage. At the Veteran's August 2020 VA examination, he did not endorse symptoms of joint "locking" or joint effusion; rather his sole residual symptom was joint pain. His symptoms did not meet the criteria for a higher 20 percent evaluation pursuant to the criteria for Code 5258. Consideration has been given to assigning a higher evaluation under a different Code; however, as the Veteran does not have any instability of the right knee, limitation of extension, or impairment of tibia and fibula, a higher disability evaluation under another Code is not warranted. Therefore, the currently assigned 10 percent disability rating assigned from August 28, 2020, contemplates the Veteran's diagnosed condition and functional limitations, and compensates him for such. See DeLuca. Accordingly, entitlement to an increased rating in excess of 10 percent from August 28, 2020 is not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Thus, the Board finds that the Veteran's symptoms documented in the evidence of record are consistent with the 10 percent disability evaluations previously assigned for the Veteran's osteoarthritis, right meniscal debridement from August 28, 2020 and adequately compensates him for his symptoms. Left Knee Status Post Meniscectomy The Veteran is seeking increased evaluations for osteoarthritis, left knee, status post meniscectomy evaluated as 10 percent disabling prior to November 17, 2016, and as 10 percent disabling since August 28, 2020 under Code 5003-5259. Hyphenated Codes are used when a rating under one Code requires use of an additional Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran is in receipt of the maximum rating of 20 percent under 5003-5258 for the period from November 17, 2016 to August 28, 2020. As the Veteran is in receipt of the maximum rating available for this period, the Board will not address entitlement to increased disability ratings for the left knee status post meniscectomy for the period from November 17, 2016 to August 28, 2020. Prior to November 17, 2016, and From August 28, 2020 The Board has carefully considered all the evidence of record and potentially applicable Codes, including the DeLuca factors, and finds that the disability picture of the Veteran's osteoarthritis, left knee, status post meniscectomy most closely approximates the criteria associated with the 10 percent disability evaluation previously assigned for these appellate periods. This is the maximum disability provided for removal of semilunar cartilage, symptomatic. Prior to November 2016 and at his August 2020 VA examination, he did not endorse symptoms of joint "locking" or joint effusion; rather his sole residual symptom was joint pain. His symptoms did not meet the criteria for a higher 20 percent evaluation pursuant to the criteria for Code 5258. Consideration has been given to assigning a higher evaluation under a different Code; however, the Veteran has been assigned a separate evaluation for instability of the left knee and as he does not have any limitation of extension, or impairment of tibia and fibula, a higher disability evaluation under Code 5261 or 5262 is not warranted. Therefore, the currently assigned 10 percent disability rating assigned for the appellate periods prior to November 17, 2016 and from August 28, 2020, contemplates the Veteran's diagnosed condition and functional limitations and compensates him for such. See DeLuca. Accordingly, entitlement to an increased rating in excess of 10 percent prior to November 17, 2016 and from August 28, 2020 is not warranted. 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 a higher rating. 38 C.F.R. §§ 4.7, 4.21. Thus, the Board finds that the Veteran's symptoms documented in the evidence of record are consistent with the 10 percent disability evaluations previously assigned for the Veteran's osteoarthritis, left knee status post meniscectomy prior to November 17, 2016 and from August 28, 2020 and adequately compensates him for his symptoms. REASONS FOR REMAND The issue of entitlement to increased evaluations for left knee instability are remanded for additional development. Pursuant to the new rating criteria for Code 5257, higher disability evaluations may be awarded in cases where a Veteran is prescribed assistive devices such as a cane and/or braces by a medical provider. A review of the file reveals the most recent VA treatment records associated with the Veteran's file are dated September 2019. On remand updated treatment records should be associated with the file, including any prescriptions for assistive devices and/or knee braces. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records, to include any prescriptions for assistive devices such as a cane and/or knee braces. 2. Take appropriate steps to obtain treatment records from any private providers, including but not limited to any medical provider's prescription for assistive devices such as a cane and/or knee braces. Secure any necessary releases from the Veteran. 3. Then, readjudicate the remanded issue. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate revies if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.