Citation Nr: 21038812 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 05-19 348 DATE: July 2, 2021 ORDER A disability rating of 30 percent for the service-connected right knee instability associated with a chronic anterior cruciate ligament (ACL) tear is granted. An initial disability rating in excess of 10 percent for the service-connected right knee degenerative joint disease (DJD) associated with a chronic ACL tear is denied. An initial disability rating in excess of 10 percent for the service-connected right knee meniscus tear associated with a chronic ACL tear is denied. REMANDED A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is remanded. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's right knee instability has most closely approximated severe recurrent subluxation or lateral instability. 2. During the entire period on appeal, the Veteran's right knee DJD has been manifested by symptomatology most closely approximating limitation of flexion to no less than 90 degrees and extension to no more than 10 degrees. 3. During the entire period on appeal, the Veteran's right knee meniscus tear has not been manifested by frequent episodes of "locking," pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for the service-connected right knee instability associated with a chronic ACL tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for an initial disability rating in excess of 10 percent for the service-connected right knee DJD associated with a chronic ACL tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5261. 3. The criteria for an initial disability rating in excess of 10 percent for the service-connected right knee meniscus tear associated with a chronic ACL tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258, 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to January 1987. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a compensable disability rating for residuals of a right knee injury, rated as right knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In September 2004, VA received the Veteran's Notice of Disagreement (NOD). In April 2005, the RO issued a Statement of the Case (SOC). In July 2005, VA received the Veteran's VA Form 9 appeal to the Board. In February 2008, the Board remanded the case for further development and adjudicative action. In a December 2008 rating decision, the RO granted service connection for right knee DJD and assigned an initial disability rating of 10 percent, effective from October 18, 2008. In April 2009 and April 2011, the Board again remanded the case for further development and adjudication. In a November 2012 rating decision, the RO increased the disability rating for right knee instability from noncompensable to 10 percent, effective from October 22, 2012. In a February 2013 decision, the Board denied the Veteran's claims, now characterized as a compensable disability rating for right knee instability for the period on appeal prior to October 22, 2012, and in excess of 10 percent thereafter, an initial disability rating in excess of 10 percent for right knee DJD, and a separate rating for right knee dislocation of semilunar cartilage. Moreover, the Board declined to infer a claim for a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In the interim, in a December 2013 rating decision, the RO granted service connection for right knee dislocation of semilunar cartilage and assigned an initial disability rating for 10 percent, effective from August 29, 2003, assigned a 10 percent rating for right knee instability, now effective from August 29, 2003, and assigned a 10 percent rating for right knee DJD effective from August 29, 2003. In a July 2014 Court Order granting a Joint Motion for Remand (JMR) the Court vacated the Board's December 2013 decision and remanded the case for further development in compliance with the directives specified in the JMR. In March 2016, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMR. In April 2017 and October 2019, the Board remanded the case for further development and adjudication. In the October 2019 decision, the Board inferred a claim for a TDIU as part and parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's service-connected right knee DJD is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010. The right knee instability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Finally, the right knee meniscus tear is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, 38 C.F.R. § 5259. All ratings are effective from August 29, 2003. Under Diagnostic Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. Diagnostic Code 5260 rates limitation of leg flexion and Diagnostic Code 5261 rates limitation of leg extension. Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent rating. Finally, extension limited to 45 degrees warrants a 50 percent rating. A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). During the pendency of the appeal, the rating criteria for evaluating recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453. Prior to February 7, 2021, Diagnostic Code 5257 evaluated recurrent subluxation or lateral instability of the knee. It provided a 10 percent disability rating for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warranted a 30 percent disability rating. The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.38 C.F.R. § 4.6. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Under the amended criteria for rating recurrent subluxation or instability, a 10 percent disability rating is warranted for a 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 disability rating is warranted for either: (a) 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) an 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. 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 warrants a maximum 30 percent disability rating. Under the amended criteria for rating patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker warrants a 20 percent rating. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Diagnostic Code 5257, Note (1), as amended, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) instructs that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). In this case, prior to February 7, 2021, only the old rating criteria for rating instability of the knee may be considered; however, from February 7, 2021, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied. Finally, under Diagnostic Code 5259, a 10 percent disability rating is warranted for cartilage, semilunar, removal of, symptomatic. However, under Diagnostic Code 5258 a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee DJD associated with a chronic ACL tear. 2. Entitlement to a disability rating in excess of 10 percent for the service-connected right knee instability associated with a chronic ACL tear. 3. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee meniscus tear associated with a chronic ACL tear. The Veteran seeks an initial disability rating in excess of 10 percent for his service-connected right knee DJD, a disability rating in excess of 10 percent for right knee instability, and an initial disability rating in excess of 10 percent for the right knee meniscus tear. Facts Prior to the period on appeal, the Veteran underwent arthroscopic surgery of the right knee in 1990. The procedure revealed a torn ACL. However, the injury was not surgically repaired. In 1996, the Veteran suffered a work-related valgus injury of the right knee. An August 1996 MRI revealed a right knee ACL tear, diagnosed as "chronic," as well as a meniscal tear. See August 1996 MRI report. A physical evaluation of the right knee revealed full ROM, and joint stability measurements as follows: "1-2+ Lachman, 1+ anterior drawer, 2+ lateral laxity with varus stress.: There was no joint effusion. See Dr. G., orthopedic evaluation. An undated letter from a Dr. Lorber, which appears to have been written long prior to the period on appeal, reveals that the right knee "is too far gone to simply reconstruct the anterior cruciate ligament." Dr. Lorber opined that the Veteran "would continue to have significant difficulty with his knee, because of the post-traumatic arthritis." Accompanying ROM findings revealed flexion to 130 degrees and extension to 20 degrees. See Dr. Lorber, letter uploaded on July 16, 2004. During the long period on appeal, the Veteran did not receive an initial VA examination until October 2008 due to incarceration through January 2007. However, as of March 2004, the Veteran was able to ambulate with use of a knee brace. Nonetheless, the Veteran appears to have initiated use of a wheelchair during his incarceration. Other medical records from the Veteran's period of incarceration reveal that the Veteran reported right knee buckling and a fall down a flight of stairs due to his right knee giving out. A March 2007 nurse practitioner note shows that ROM of the right knee was "20-130," indicating extension to no less than 20 degrees and flexion to no more than 130 degrees. VA nurse practitioner note dated March 15, 2007. Additionally, in March 2007, the Veteran was prescribed a right knee brace. See VA orthotics prosthetics note dated March 15, 2007. A May 2007 MRI report indicated that the Veteran had a "complete tear [of] the anterior cruciate ligament," a "[h]orizontal tear involving the body and anterior horn of the lateral meniscus," and "degenerative cartilage changes of the lateral patellar facet." The MRI report provided no evidence of joint effusion. See May 2007 MRI report. Following his release, the Veteran received an initial VA examination for his right knee disability in October 2008. During the examination, the Veteran stated that he had been nonambulatory since 2003 and experienced "severe" pain in the right knee. He also reported swelling of the right knee. On ROM testing, flexion of the right knee was to 115 degrees and extension was to 0 degrees with "mild pain throughout the entire ROM of the knee." The examiner stated that there were no periods of flare-ups. At a physical medicine and rehabilitation (PM&R) evaluation dated December 2010, the Veteran was noted to have full ROM of both lower extremities, "gross muscle strength, and sitting posture that were within full limits, normal sitting balance, and fair endurance." No atrophy was noted, and the Veteran had no weight-bearing restrictions. The PM&R note also indicates use of a cane for transfers requiring no more than one foot of distance. See VA PM&R note dated December 23, 2010. The Veteran next received a VA examination for his right knee in May 2011. At that time, the Veteran continued to report "daily" right knee pain and was examined in his electric scooter. Flexion of the right knee was to 90 degrees and extension was to 0 degrees. Although active repetitive motion testing could not be completed, passive repetitive motion testing revealed no additional functional loss. There was no "locking" or effusion. The examiner opined that the Veteran's knee pain would cause fatigue and lack of endurance. Curiously, however, the examiner concluded that the Veteran did not experience instability of the right knee because he was "in an electric scooter and does not ambulate." An x-ray revealed "mild degenerative arthritis of the right knee (patella femoral joint), and medial and lateral meniscal tears." In October 2012, the Veteran received another VA examination for his right knee. During the examination, the Veteran reported symptoms of painful clicking and popping, feelings of locking, stiffness, feelings of giving way with falling, and inability to stand. Flare-ups occurred "on a daily basis with increased pain causing him to rest in his recliner." On ROM testing, flexion of the right knee was to 120 degrees with objective evidence of painful motion beginning at 100 degrees. Extension was to 0 with no objective evidence of painful motion. There was no additional functional loss after 3 repetitions. Contributing factors of disability included less movement than normal, weakened movement, and pain on movement. A Lachman test revealed a measurement of 1+ in the right knee but posterior drawer and medial-lateral instability tests were normal. The examiner noted the Veteran's history of meniscal tear but did not record frequent episodes of joint "locking," pain, or effusion. At the time of examination, the Veteran required constant use of a wheelchair, or "motorized chair"; however, the examiner opined that the use of the motorized chair was "due to his overall health condition including, COPD, neuropathy, CAD [coronary artery disease], knee condition, history of back pain, etc." In a January 2016 opinion, Dr. Carey, a private physician, opined that the Veteran's wheelchair use was primarily due to his ACL tear, which Dr. Carey found to preclude "any form of ambulation." The Veteran underwent yet another VA examination in August 2016. The Veteran again reported right knee pains, including flare-ups of "more severe pain," "every day," that his right knee would give out on him, and that he could not walk at "all." Notwithstanding, he indicated that he was able to stand "if he holds on to something." Notably, the Veteran stated his belief that he required an electric wheelchair due to his right knee impairment alone. The Veteran did not stand during the examination because he was afraid of falling. During the examination, flexion of the right knee was to 100 degrees and extension was to 10 degrees. No repetitive use testing was completed. Nevertheless, the examiner opined that there would be no additional functional loss following repeated use or during flare-ups. Muscle strength testing revealed no muscle movement (0/5) on flexion of the right knee. The examiner provided no objective findings regarding instability. An August 2016 VA addendum noted that the Veteran was able but move the right knee, but that flexion and extension were painful. See VA addendum dated August 23, 2016. Importantly, none of the examinations described above included Correia findings. Following the April 2017 Board remand for a Correia-compliant examination, the Veteran received a new VA examination of his right knee in April 2017. Notably, the examiner did not acknowledge the Veteran's history of ACL and meniscus tears, noting instead only that the Veteran had diagnoses of a right knee strain and right knee instability. Furthermore, the examiner was unable to test flexion and extension of the right knee because "[t]he veteran says he can not (sic) move the knee. He tried to pick up the leg with hand. This means there is no active ROM." The Veteran denied flare-ups of the right knee. Passive range of motion testing showed flexion to 140 degrees and extension to 0 degrees. Repeated use testing was not performed. Muscle strength on flexion and extension of the right knee revealed palpable or visible muscle contraction, but no joint movement (1/5). However, muscle strength on flexion and extension of the left knee was also 1/5. Regarding additional functional loss after repeated use over time, the examiner found that the examination was medically inconsistent with the Veteran's statements regarding additional functional loss after repeated use. In this regard, the examiner opined that the Veteran's "knee condition would not have caused weakness in the lower extremities"; nonetheless, as noted above, the examiner seems to have not considered the Veteran's history of ACL and meniscus tears in formulating this opinion and no further rationale was provided. The examiner noted "mild dis-use atrophy, due to wheelchair use." Regarding joint instability, a medial instability test revealed a measurement of 2+; all other joint stability tests were within normal limits. Regarding Correia, there was objective evidence of pain on passive ROM testing and objective evidence of pain on non-weight-bearing (in addition to pain on weight-bearing). A June 2017 electromyography (EMG) revealed evidence of sensory polyneuropathy affecting both lower extremities but "no unequivocal evidence of left peroneal mononeuropathy." June 2017 EMG report. Following the October 2020 Board remand for an opinion regarding the impact of the "right knee strain" (as described by the Board) and right knee stability on the necessity for use of a wheelchair, in a December 2019 addendum opinion, the April 2017 examiner opined that the Veteran's low back condition, diabetic neuropathy, conversion disorder, and COPD, from greatest to smallest physical impairment, necessitated the Veteran's wheelchair use. However, the examiner stated that the MCL strain with medial instability "is not an indication for wheelchair use." Again, the examiner made no reference to the Veteran's history of ACL and meniscus tears. VA has received statements from two of the Veteran's sisters, C.W. (received in October 2019) and S.L. (received in November 2015). C.W. stated that the Veteran's right knee "is not stable and does give out on him resulting in his falling and sometimes not being able to get up right away" and that the Veteran uses an electric wheelchair at all times. S.L., who lived with the Veteran from approximately February 2007 to September 2009, recalled four occasions on which the Veteran "fell because his knee gave out while he was trying to transfer to or from his wheelchair or trying to get off the shower stool to his wheelchair, and other places in my home, once while trying to get into the car. S.L. noted that the Veteran "was always in enormous knee pains and taking pain medicine because of his knee." Despite no such instruction in the October 2020 Board remand directives, an in-person physical examination was scheduled for the Veteran's right knee disability. However, the Veteran did not attend that examination. Nonetheless, in December 2019, the examiner tasked with carrying out that examination appears to have completed another opinion regarding whether the Veteran's right knee disability necessitated use of a wheelchair, finding that the right knee "doesn't have the severe disease till (sic) need wheelchair." The proposed VA examination was rescheduled and completed in February 2020 by a different examiner. During that examination, the Veteran reported "inability to maintain balance, frequent fall[s] and constant pain" and inability to ambulate "for almost 20 years now." Furthermore, the Veteran reported inability to sit for long periods of time. He denied flare-ups. The examiner was unable to complete ROM testing because the Veteran stated that "he is unable to move his right LE [lower extremity]." As a result, repetitive use testing was also not performed. However, the examiner further noted that there were "no signs of immobility however like atrophy, contractures. When talking, small movements of the right LE were noted." There was no muscle movement (0/5) on flexion and extension of the right and left knees. Although the examiner noted the Veteran's history of meniscal, the examiner found that there were no frequent episodes of joint "locking," pain, or effusion. Moreover, in the "Remarks" section, the examiner explained that the question on why the Veteran could not walk "remained unanswered" and that, during the Veteran's history of care, a kinesiologist, psychiatrist, neurologist, and orthopedist could not explain how the Veteran was unable to walk. Furthermore, regarding Correia, the examiner noted that there was no objective evidence of pain on passive range of motion testing or non-weight-bearing of the right knee. The report gave no indication of pain on weight-bearing as the Veteran declined to stand during the examination. Finally, in April 2021, the Veteran's representative submitted an opinion from Dr. Grier, a private orthopedic surgeon. Dr. Grier did not personally examine the Veteran but did review the claims file. In the opinion, Dr. Grier responded directly to the April 2017 examiner's assertion that the Veteran's right knee disability would not cause weakness in the lower extremities. Specifically, Dr. Grier cited medical literature showing that ACL injuries may lead to decreases in strength in several muscle groups of the lower leg, and even "bilateral quadriceps weakness." Dr. Grier further opined that the Veteran's right knee disability was the product of an ACL tear that was never repaired and noted that an "unstable, ACL deficient knee will not develop stability over time as the ligament has no mechanism to repair itself." As a result of the ACL and meniscus tears, Dr. Grier found that the Veteran "developed weakness of his lower extremities and severe symptoms of knee instability, locking and pain and, eventually, osteoarthritis of the knee." She further opined that the Veteran's "original ACL injury plays a primary role in his wheelchair use," and that at a minimum, the Veteran "would certainly require a walker or cane in order to ambulate due solely to his right knee disability." Nonetheless, Dr. Grier conceded that "it is unlikely that his torn ACL would result in a biological inability to move the lower extremities and being completely wheelchair bound," but nonetheless stated that "severe weakness, combined with long-term disuse, could certainly result in such significant functional loss that it mimics the feeling that the extremity is non-functional, which likely occurred in this veteran's case." There is no evidence of ankylosis of the right knee at any time during the period on appeal. Analysis The Board concludes that the maximum 30 percent rating is warranted for the Veteran's service-connected right knee instability associated with a chronic ACL tear for the entire period on appeal, under both the pre- and post-amendment criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, an initial disability rating in excess of 10 percent for the service-connected right knee DJD associated with a chronic ACL tear and an initial disability rating in excess of 10 percent for the service-connected right knee meniscus tear associated with a chronic ACL tear are not warranted. At the outset, the Veteran's representative, and the evidence does not show, that an extraschedular rating is warranted for the Veteran's right knee disability. Right Knee Instability As noted above, a 30 percent disability rating is warranted for the service-connected right knee instability for the entire period on appeal. Regarding the period prior to February 7, 2021, the evidence shows that the Veteran's right knee disability resulted in symptoms approximating severe recurrent subluxation or lateral instability. Specifically, there is objective evidence of joint instability on Lachman and medial instability tests during this period. See October 2012 and August 2016 VA examination reports. Moreover, significant probative value is assigned to the statement by S.L., the Veteran's sister, who witnessed firsthand falls due the Veteran's right knee giving way. This evidence supports the Veteran's reports of inability to stand without his right knee giving way. Additionally, the evidence of right knee muscle weakness documented by several examiners during the period on appeal further supports the Veteran's statements about his right knee instability. In this regard, greater probative value is afforded to the April 2021 opinion by Dr. Grier, which concluded that the weakness of the right knee was due to the Veteran's service-connected ACL tear and supported that finding by citing medical literature, than the April 2017 VA opinion, which did not include a rationale to support the finding that the Veteran's right knee disability (incorrectly characterized as a right knee strain). Given the above, the lay and medical evidence of record is consistent with severe recurrent subluxation or lateral instability. Accordingly, the criteria for the maximum 30 percent disability for right knee instability for the period on appeal prior to February 7, 2021 have been met. Furthermore, a 30 percent disability rating is warranted under the post-February 7, 2021 criteria. Specifically, the evidence shows that the Veteran's has an unrepaired ACL tear that results in persistent instability, and furthermore, that use of a knee brace and or other assistive device, e.g. a cane or walker, has been deemed medically appropriate. First, the May 2007 MRI report discussed above revealed a complete tear of the Veteran's ACL. Second, the lay and medical evidence reveals that the Veteran experiences persistent instability due to the ACL tear. Third, the Veteran has been prescribed a knee brace during the period on appeal and, additionally, Dr. Grier in the April 2021 opinion found that use of a cane or walker would be appropriate given the Veteran's disability picture. In light of the above, the criteria for the maximum 30 percent disability rating for right knee instability for the period on appeal from February 7, 2021 have also been met. Right knee DJD An initial disability rating in excess of 10 percent for the service-connected right knee DJD is not warranted. In this regard, the preponderance of the evidence shows that flexion of the right knee has not been limited to 30 degrees or less and extension has not been limited to 15 degrees or less. ROM testing during the October 2008, May 2011, October 2012, and August 2016 examinations revealed flexion to no less than 90 degrees and extension to no more than 10 degrees. Although active ROM testing was not completed during the April 2017 and February 2020 examinations, which are the only examinations to contain Correia findings, passive ROM testing during the April 2017 examination revealed normal flexion and extension. These findings outweigh the isolated notation of limitation of extension to 20 degrees in the March 2007 nurse practitioner note. The evidence also does not show that the Veteran's right knee is completely immobile. Notably, VA treatment records indicate that the Veteran was able to move the right knee as late as August 2016. There is nothing to suggest significant worsening of the Veteran's right knee disability in the six months between August 2016 and the April 2017 examination such that the Veteran would no longer be able to move the right knee at all, given that muscle strength on flexion of the right knee was already recorded as 0/5 during the August 2016 examination and VA treatment records show that the Veteran was able to move the right knee during that month. Furthermore, there is no evidence since that period to suggest that the Veteran has become completely unable to move the knee outside of the Veteran's assertions during the April 2017 and February 2020 VA examinations. Additionally, the April 2017 examiner noted only mild disuse atrophy and the February 2020 examiner noted no atrophy of the right knee. As stated by Dr. Grier, the Veteran's unrepaired ACL tear alone would not be expected to result in complete inability to move the right knee. Although Dr. Grier noted that weakness and long-term disuse of the right knee could "mimic," as stated by Dr. Grier, the feeling that the extremity is non-functional, this is not equivalent to a finding that the right knee is non-functional for purposes of ROM testing. Furthermore, no nexus has been proposed either by Dr. Grier or any other provider between long-term disuse of the right knee and the claimed complete inability to move the right knee. Finally, as noted above, there is no evidence of ankylosis of the right knee at any point during the period on appeal. To the extent that the April 2017 and February 2020 examiners failed to consider the Veteran's history of meniscus and ACL tears, this error is immaterial for purposes of consideration of a rating based on limitation of motion assigned based on ROM testing on examination. The Board has considered whether the Veteran may be entitled to higher ratings for right knee DJD based on additional functional loss due to pain, weakened movement, excess fatigability, incoordination, during flare-ups and after repeated use. See, e.g., DeLuca, 8 Vet. App. at 202. However, the evidence does not show additional limitation due to weakness that results in additional functional loss warranting a disability rating in excess of 10 percent. As noted above, with consideration of painful motion and other factors, the criteria for a 20 percent rating have not been more nearly approximated. In this regard, there is no evidence of additional functional loss during flare-ups due to pain and no ascertainable functional loss following repeated use over time due to pain and/or weakness that limit flexion of the right knee to 30 degrees or less or extension to 10 degrees or more. Importantly, ratings under Diagnostic Codes 5260 and 5261 are based on limitation of motion, and any additional factor listed under 38 C.F.R. §§ 4.40 and 4.45, to include weakened movement, must be quantified in terms of additional degrees of motion lost; there are no separate ratings available under 38 C.F.R. §§ 4.40 or 4.45. See Thompson, 815 F.3d at 785. In this case, there is no evidence to show any additional range of motion lost due to pain or weakened movement following repeated use over time or during flare-ups. Nonetheless, the 30 percent disability rating assigned for right knee instability recognizes that the Veteran's weakness of the right knee affects the stability of the knee joint due to the Veteran's ACL tear. However, the criteria for a disability rating in excess of 10 percent for the service-connected right knee DJD are not more nearly approximated. Right Knee Meniscus Tear An initial disability rating in excess of 10 percent for the Veteran's service-connected right knee meniscal tear is not warranted. Specifically, during the period on appeal, there has been no evidence of frequent episodes of "locking," pain, and effusion into the joint. Although the Veteran has reported locking of his knee and the knee joint is manifestly painful, there is no objective evidence of locking and joint effusion during the period on appeal. No VA examination report of record has noted either of these symptoms. Although an April 2021 brief submitted by the Veteran's representative identifies a September 2019 medical report that states that the Veteran's medical history is "strongly suggestive of a history of joint effusion," the record contains no evidence of actual joint effusion. Notably, the May 2007 MRI revealed no evidence of joint effusion and no effusion. In light of the above, the criteria for a disability rating in excess of 10 percent for the service-connected right knee meniscal tear have not been met. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis. The Veteran, through his representative, contends that a TDIU is warranted for the period on appeal from September 12, 2008. The Veteran's service-connected disabilities currently do not meet the criteria for a TDIU on a schedular basis. Specifically, the Veteran does not have one disability ratable as 60 percent disabling or at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As of August 29, 2003, the Veteran's service-connected disabilities included right knee instability associated with a chronic ACL tear, rated as 30 percent disabling, right knee DJD associated with a chronic ACL tear, rated as 10 percent disabling, and a right knee meniscus tear associated with a chronic ACL tear, rated as 10 percent disabling. As of September 12, 2008, the Veteran's service-connected disabilities also included bilateral lateral hearing loss, rated as 10 percent disabling, and as of October 22, 2012, a right knee scar, rated as noncompensable. Regarding his employment history, the Veteran has reported completing an associate degree in information technology in July 2016. Between 1973 and 1998, the Veteran worked as a lift truck operator. See October 2019 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. He was incarcerated between 1998 and 2007. Following his release, in approximately October 2007, the Veteran reported working as a "house manager" for a VA shelter and there is some evidence that he unsuccessfully attempted a phone-based sales job. See May 2011 SSA disability determination. Of record is an April 2021 vocational opinion by T.D., who reviewed the Veteran's vocational history and analyzed the occupational requirements of the Veteran's prior jobs based on the Dictionary of Occupational Titles (DOT). T.D. found that the Veteran's military work in food service and post-service work as a machine operator required prolonged standing and walking, which T.D. concluded that Veteran could no longer perform due to his right knee disability and hearing loss. Furthermore, T.D. noted that the Veteran had never obtained employment in an information technology job after his graduation from an information technology associate degree program. Nonetheless, T.D. noted that the Veteran's right knee disability and associated weakness and instability would create barriers to all vocations that require "appropriate and safe transfer abilities, occasional standing, walking, and sitting." In the April 2021 medical opinion, Dr. Grier noted that the Veteran's frequent opioid use for right knee pain would preclude operation of heavy machinery in many states. Under present law, the Board is precluded from assigning an extraschedular TDIU in the first instance. Accordingly, the Board may only at present consider whether referral to the Director of Compensation and Pension Services (Director) for extraschedular consideration is warranted. See 38 C.F.R. § 4.16(b); Floyd v. Brown, 9 Vet. App. 88 (1996). The Veteran's claim for extraschedular TDIU has not yet been referred to the Director. Based on the evidence of unemployability due to service-connected disabilities described above, the Board concludes that the Veteran's claim should be referred to the Director for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU to the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis. (CONTINUED ON NEXT PAGE) 2. After the above development has been completed, readjudicate the issue of entitlement to a TDIU. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.