Citation Nr: 21039988 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 11-32 081 DATE: July 2, 2021 ORDER An initial disability in excess of 10 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior to September 18, 2017 is denied. An initial disability in excess of 40 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior from September 18, 2017 is denied. FINDINGS OF FACT 1. Prior to September 18, 2017, the Veteran's service-connected osteoarthritis, left knee status post meniscectomy with normal healed surgical scar has manifested in flexion limited to, at worst, 80 degrees and full extension without further limitation after repetitive use testing due to pain, fatigue, weakness, lack of endurance or incoordination. 2. On and after September 18, 2017, the Veteran's service-connected osteoarthritis, left knee status post meniscectomy with normal healed surgical scar has manifested in extension limited to, at worst, 35 degrees without further limitation after repetitive use testing due to pain, fatigue, weakness, lack of endurance or incoordination. CONCLUSIONS OF LAW 1. The criteria for an initial disability in excess of 10 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior to September 18, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263. 2. The criteria for initial disability in excess of 40 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior from September 18, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from October 1985 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in October 2016, and a transcript of the hearing is of record. In November 2018, the Board disposed of the Veteran's claims, and, in January 2020, the Court of Appeals for Veterans Claims (Court) vacated the Board's disposition and remand the matter back to the Board for further consideration. Further development in substantial compliance with the Court's remand instructions has been completed. 1. An initial disability in excess of 10 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior to September 18, 2017 is denied. 2. An initial disability in excess of 40 percent for osteoarthritis of the left knee status post meniscectomy with normal healed surgical scar prior from September 18, 2017 is denied. At issue is whether the Veteran is entitled to increased rating claims for the Veteran's left knee disabilities. The weight of the evidence indicates that the Veteran is not entitled to an increased disability. The Veteran first filed a claim for service connection in February 2005, and, in August 2006, the RO granted service connection and assigned a disability rating of 10 percent effective the date the claim was received. The Veteran filed an increased rating claim in April 2010, and, January 2011, the RO denied the Veteran's increased rating claim. The Veteran appealed. During the pendency of the appeal, the Veteran's left knee disability was increased to 40 percent effective September 18, 2017. See June 2019 Rating Decision Code Sheet. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for the knee are assigned pursuant to Diagnostic Codes 5003 & 5256-5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion-to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 U.S.C. § 4.71 a, Diagnostic Code 5003. During the pendency of the appeal, revised criteria for Diagnostic Code 5257 became effective on February 7, 2021. See 85 Fed. Reg. 76460 (November 30, 2020). By law, amendments to regulations cannot be construed to have retroactive effect unless their language requires such a result. See Kuzma v. Principi, 341 F.3d 1327 (2003). There, however, is no such language in the amendments to the regulations at issue in this case. Therefore, the Board shall consider the Veteran's disability under the old criteria prior to February 7, 2021, and the Board shall consider the Veteran's disability under both criteria from February 7, 2021. Prior to February 7, 2021 Diagnostic Code 5257 provided for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010-2020). The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. Since February 7, 2021 Diagnostic Code provided for the assignment of a 10 percent rating when there was 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; and 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 disability rating of 20 percent is assigned when the Veteran manifests 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; 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; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A disability rating of 30 percent is assigned when the Veteran manifests 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; or 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). In VAOPGCPREC 9-98 (1998), the VA General Counsel explained that when a Veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. 64 Fed. Reg. 52,376 (1999). A separate rating for arthritis (in addition to Diagnostic Code 5257) could instead be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Limitation of motion of the knee is rated under Diagnostic Code 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a , Plate II. Under Diagnostic Code 5260, a noncompensable disability rating is warranted for flexion limited to 60 degrees. A 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable disability rating is warranted for extension limited to 5 degrees. A 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). In February 2005 the Veteran sought treatment for left knee pain and stiffness. The Veteran experienced swelling, which subsided within a day. Pain was worse with activity, but there was no limitation of range of motion. In June 2006 the Veteran underwent a private left knee assessment. The physician diagnosed the Veteran with a torn meniscus of the left knee in 1977. The Veteran complained of stiffness, swelling and a lack of endurance. He had constant pain, which was sharp and 8 out of 10 at its worst. The pain was elicited by walking long distances and relieved by Motrin. During the June 2006 assessment, the Veteran's gait was normal and he did not utilize an assistive device. The Veteran's right knee was within normal limits with no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, guarding of movement, or subluxation. The left knee showed some tenderness with no edema, effusion, weakness, redness, heat, abnormal movement, guarding of movement or subluxation. There was crepitus noted in both knees and there was a depressed hypopigmented scar over the right knee. There were no signs of cellulitis, deformity or ankylosis. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees in the bilateral knees. There was no pain with range of motion in either knee. There was no fatigue, weakness, lack of endurance, or incoordination after repetitive use only tenderness to palpation in the left knee. The patella was normal. There was no instability in the knee joint. The varus and valgus, drawer and McMurray's were negative. An August 2010 left knee x-ray report showed a diagnosis of osteoarthritis, left knee. The Veteran reported symptoms of weakness, stiffness, swelling, redness, giving way, locking, fatigability, deformity, tenderness and pain. He did not experience heat, lack of endurance, drainage, effusion, subluxation or dislocation. The Veteran reported flare-ups as often as four times per day, lasting for half an hour. He reported the flare-up as 10 on a 1 to 10 scale. Flare-ups were precipitated by stress and standing or walking, and they occur spontaneously. They were alleviated by Ibuprofen. During flare-ups he experienced functional impairment such as inability to walk or stand up sometimes due to the pain. He was last hospitalized for the condition in 1979 for a left knee meniscectomy. He condition did not result in any incapacitation in the past 12 months. His gait was normal, but he required a brace on the left knee. Examination of the left knee in August 2010 showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Tenderness and crepitus were present. There was no ankylosis of the left knee. Range of motion testing of the bilateral knees showed both initial and repetitive range of motion testing of flexion and extension to be within normal limits. There was no additional degree of limitation. On the left, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability tests were all within normal limits. An October 2010 VA treatment record noted left knee tenderness with small effusion and crepitus, no warmth, surgical scar medial aspect of left knee. A December 2010 VA surgery clinic noted moderate subluxation of the left knee. It was also noted that the Veteran had an antalgic gait, used a cane and wore a left knee sleeve. The Veteran also reported that he experienced knee buckling. In January 2014 the Veteran underwent a VA knee and lower leg examination. He was diagnosed with traumatic arthritis, status post medial meniscectomy. The examiner noted flare-ups with increased pain and buckling with lateral movements. Initial range of motion testing showed left knee flexion to 110 degrees with evidence of painful motion beginning at 25 degrees. Left knee extension ended at 0 degrees with no evidence of painful motion or extension. Repetitive use testing was not performed. The examiner found that the Veteran experienced functional loss in his left knee in the form of less movement than normal, weakened movement, pain on movement, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting, standing and or weightbearing. The Veteran also had tenderness or pain to palpation for joint line or soft tissues of the left knee. Strength testing resulted in active movement against gravity with left knee flexion and extension. Anterior, posterior and medial-lateral instability testing was normal. The examiner also noted that there was no evidence of recurrently patellar subluxation/dislocation. Although the Veteran underwent the noted knee surgery in 1979, he had never undergone total knee replacement. The examiner noted that the Veteran did not use any assistive devices. Functional impact included increased pain at times with increased weight bearing activities. An August 2015 VA treatment record showed that the Veteran's left knee buckled and he sustained a fall. A February 2016 rheumatology clinic note showed that the Veteran reported having worsening pain, pain was constant, mostly with any activity. The Veteran also reported occasional left knee swelling. A March 2016 treatment record noted that the Veteran was unable to hold his quadricep in extension. In April 2016 the Veteran underwent a second VA knee and lower leg examination. The Veteran was diagnosed with bilateral knee strain, left knee meniscal tear and bilateral patellofemoral pain syndrome. The flare-ups of the left knee were described as sharp pain in the knee, swollen knee, inability to walk and pain in the calf and ankle. Functional impact was reported as loss of muscle in the left thigh. Initial range of motion testing showed flexion in right knee of 0 to 120 degrees, extension of 120 to 0 degrees, both abnormal or outside of normal range. The loss of initial range of motion is flexion 20 and extension 0 degrees which indicates impairment with activities such as running, climbing and squatting. Pain was noted on rest/nonmovement, with evidence of pain on weight bearing and evidence of crepitus. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue included mild tenderness of the patella tendon. Initial left knee range of motion testing showed flexion of 0 to 100 degrees and extension of 100 to 0 degrees, which was abnormal or outside of normal range. The functional loss of initial range of motion is flexion 40 and extension degrees which indicated impairment with activities such as running, climbing and squatting. Pain was noted on rest/nonmovement, with evidence of pain on weight bearing and evidence of crepitus. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue included mild tenderness of the patella tendon. Observed repetitive use testing of the right knee showed flexion of 0 to 100 degrees and extension of 100 to 0 degrees. Factors that caused functional loss included pain and lack of endurance. Observed repetitive use testing of the left knee showed flexion of 0 to 80 degrees and extension of 80 to 0 degrees. Factors that caused functional loss included pain, fatigue and lack of endurance. Repeated use over time testing yielded identical results bilaterally. Flare-ups were also described identically bilaterally. Additional contributing factors to the Veteran's bilateral knee disabilities included less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc.) Muscle strength testing was normal bilaterally and there was no muscle atrophy. The examiner also noted that was no ankylosis of either knee joint. There was no history of recurrent subluxation or lateral instability. Joint stability testing also showed normal results bilaterally. There was no recurrent patellar dislocation, shin splints, fracture, chronic exertional compartment syndrome or any other tibial or fibular impairment found. The Veteran used a cane constantly. The Board finds that during the period on appeal prior to September 18, 2017, that the Veteran's osteoarthritis, left knee status post meniscectomy with normal healed surgical scar is most consistent with a 10 percent disability rating. The Veteran does not have and has not had ankylosis, symptomatic removal of semilunar cartilage, locking, an impairment of the tibia or fibula, or genu recurvatum of the left knee at any point, so a rating under DC 5256, 5257, 5258, 5259, 5262, or 5263 is not warranted. Although the October 2010 treatment record noted a small effusion, this is the only mention of effusion and it is not shown to be recurrent. Furthermore, the only mention of mild subluxation was in December 2010, but is not found by any of the subsequent examinations. The Veteran has a 10 percent rating under DC 5003 5261, limitation of left leg extension to 10 degrees, prior to September 18, 2017. He argues that he should have a higher rating. Although the Veteran has arthritis confirmed by x-ray evidence of the bilateral knees, which is sufficient to warrant a 10 percent disability rating for each knee under DC 5010, there is no evidence that the Veteran has ever experienced an incapacitating episode due to his bilateral knee arthritis. Therefore, he does not meet the criteria for a 20 percent disability rating under DC 5003 5010. None of the range of motion findings supports a rating higher than 10 percent under either DC 5260 or DC 5261 prior to September 18, 2017. The medical evidence during the appeal period documents initial range of motion flexion of at least 100 degrees and extension to zero degrees from on all range of motion testing, including after repetitive use testing. Even on repetitive use testing shows left knee flexion to 80 degrees and extension to zero degrees. Given the ranges of motion of at least 80 degrees of flexion and extension to zero degrees, the Board finds that the symptoms of weakness, fatigue, and pain warrant, at most, a 10 percent rating under DC 5260 and 5261. The limitations, particularly given the range of motion testing (including repetitive testing) results at both VA examinations and elsewhere in the medical records, do not meet or more closely approximate the limitations that would be associated with a flexion limited to 30 degrees (the criteria for a 20 percent rating under DC 5260) or extension limited to 15 degrees (the criteria for a 20 percent rating under DC 5261). Rather, the currently assigned 10 percent rating under DC 5260 and 5261 adequately accounts for the limitations of motion, including after considering the DeLuca factors, documented in the medical records and VA examinations. The Veteran's left knee disability does not more closely approximate the criteria for any rating in excess of 10 percent at any time during the period prior to September 18, 2017. For the foregoing reasons, entitlement to a 20 percent rating for osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar (other than the already assigned 10 percent rating under DC 5014) is denied. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5256-5263; Hart, 21 Vet. App. 505. The Board finds that even when taking into consideration additional impairment caused by factors such as pain, weakness, and fatigability the Veteran's left knee disability is not manifested by limitation of flexion to at least 30 degrees to warrant the next higher schedular rating of 20 percent under DC 5260 or 5261. The Veteran has reported that he has experienced flare-ups caused by walking and standing, with constant pain. However, he was not experiencing a flare-up at the time of any of the VA rating examinations or at the time of any treatment at a VA outpatient treatment clinic. The Board also notes that in the absence of ankylosis, a rating under DC 5256 is not warranted and in the absence of evidence of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, a rating under DC 5258 is not warranted. Similarly, there is no genu recurvatum or impairment of the tibia and fibula with malunion which would warrant ratings under DCs 5263 and 5262. The Board has considered whether staged ratings should be assigned but at no time during this appeal has the Veteran's service-connected osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar caused such symptomatology as to be productive of functional impairment warranting, or even approximating, an evaluation in excess of 10 percent. Thus, staged ratings are not warranted. Accordingly, the Board finds that the greater weight of the evidence is against the Veteran's claim, and so the doctrine of the favorable resolution of all reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From this it must be concluded that entitlement to a rating in excess of 10 percent for osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar prior to September 18, 2017, must be denied. In September 2017 the Veteran underwent a third VA knee examination. The Veteran was diagnosed with left knee meniscal tear, right knee strain, bilateral knee joint osteoarthritis and bilateral chondromalacia. It was reported that the Veteran experienced daily left knee pain that is all around the kneecap. He had grinding, clicking and buckling from his left knee. The Veteran stated that his left knee pain affects his job, because he has to walk stairs and climb ladders. He had missed at least four days from work due to his knee condition. The Veteran did not report flare-ups of the knee. However, the Veteran did report functional loss which he described as affecting his ability to work and sometimes he has to just sit down at work. It also affected his ability to do household chores and yard work. It also affects his ability to interact with and care for his children. The Veteran also stated that his knee condition affects his ability to walk for a long time or stand still for even short periods. Initial range of motion testing of the right knee showed abnormal or outside of range of motion with flexion from 0 to 110 degrees and extension from 110 to 30 degrees. Range of motion itself does not contribute to functional loss. Pain was noted with flexion and extension, weight bearing and diffuse pain on palpation of both knees involving the distal quadriceps tendon, patellar tendon, anterior patella, and both the lateral and medial joint lines. There was also objective evidence of crepitus. Initial range of motion testing of the left knee showed abnormal or outside of range of motion with flexion from 0 to 100 degrees and extension from 100 to 35 degrees. Range of motion itself does not contribute to functional loss. Pain was noted with flexion and extension, weight bearing and diffuse pain on palpation of both knees involving the distal quadriceps tendon, patellar tendon, anterior patella, and both the lateral and medial joint lines. There was also objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. However, there was no additional functional loss or range of motion after three repetitions. The examiner found that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Muscle strength testing revealed active movement against some resistance on flexion and extension in his bilateral knees. There was also bilateral reduction in muscle strength. However, the reduction was not entirely due to the claimed condition, because the Veteran also had lumbar spine degenerative disc disease which can contribute to lower extremity weakness and sensory abnormalities such as paresthesias and pain. There was no muscle atrophy or ankylosis present. Joint stability tests showed no history of recurrent subluxation, lateral instability or recurrent effusion. Right knee joint stability testing showed no joint instability. Anterior instability, posterior instability, medial instability and lateral instability testing was normal. The examiner was not able to perform left knee joint stability testing because the Veteran was experiencing significant pain after manipulation of the knee and was unable to tolerate the pain caused by the examiner initiating joint stability testing. The Veteran did not now have or ever had recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. Both knees showed evidence of pain on passive range of motion testing, non-weight bearing testing and joint damage. The Veteran also regularly used a brace and a cane. The Veteran currently has a 40 percent rating under DC 5003 5261, limitation of left leg extension to 30 degrees. He argues that he should have a higher rating. None of the range of motion findings supports a rating higher than 40 percent under either DC 5260 or DC 5261 on or after September 18, 2017. The medical evidence during the appeal period documents initial range of motion flexion of at least 100 degrees and extension to 35 degrees from on all range of motion testing, including after repetitive use testing. Even on repetitive use testing there was no additional functional loss or range of motion. Given the ranges of motion of at least 100 degrees of flexion and extension to 35 degrees, the Board finds that the symptoms of weakness, fatigue, and pain warrant, at most, a 40 percent rating under DC 5260 and 5261. The limitations do not meet or more closely approximate the limitations that would be associated with extension limited to 45 degrees (the criteria for a 50 percent rating under DC 5261). Rather, the currently assigned 40 percent rating under DC 5261 adequately accounts for the limitations of motion, including after considering the DeLuca factors, documented in the medical records and VA examinations. The Veteran's left knee disability does not more closely approximate the criteria for any rating in excess of 40 percent at any time during the period on and after September 18, 2017. For the foregoing reasons, entitlement to a 50 percent rating for osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar (other than the already assigned 40 percent rating under DC 5014) is denied. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5256-5263; Hart, 21 Vet. App. 505. The Board finds that even when taking into consideration additional impairment caused by factors such as pain, weakness, and fatigability the Veteran's left knee disability is not manifested by limitation of extension to at least 45 degrees to warrant the next higher schedular rating of 50 percent under DC 5261. The Veteran has reported that he has experienced flare-ups caused by walking and standing, with constant pain. The Board also notes that in the absence of ankylosis, a rating under DC 5256 is not warranted. It is acknowledged by the Board that the Veteran was unable to perform joint stability testing. However, none of the Diagnostic Codes relating to joint stability of the knee provide for a disability rating in excess of 40 percent. The Board has considered whether staged ratings should be assigned but at no time during this appeal has the Veteran's service-connected osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar caused such symptomatology as to be productive of functional impairment warranting, or even approximating, an evaluation in excess of 40 percent. Thus, staged ratings are not warranted. Accordingly, the Board finds that the greater weight of the evidence is against the Veteran's claim, and so the doctrine of the favorable resolution of all reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From this it must be concluded that entitlement to a rating in excess of 40 percent for osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar on and after September 18, 2017, must be denied. In November 2018, the Board disposed of the Veteran's increased rating claim for the left knee. In January 2020, the Court vacated the November 2018 disposition of the Veteran's increased rating claim for the left knee. Specifically, the Court found that a VA examination conducted in September 2017 did not adequately conform to the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 26 (2017). Additionally, the Court also found that the September 2017 examination did not adequately demonstrate that the examiner's inability to estimate the Veteran's additional functional loss during flare-ups was based on all available information. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, this matter must be remanded in order to provide the Veteran with a new VA examination in substantial compliance with the Board's previous remand instructions. See Stegall. The Board also notes that the Court found that the Board did not provide an adequate statement of reasons for failing to assign separate compensable disability ratings under Diagnostic Codes 5257 (recurrent subluxation or lateral instability), 5258 (dislocated semilunar cartilage), and 5259 (removal of semilunar cartilage). Consequently, the Board remanded this matter in November 2020. The Veteran was provided a new VA examination in April 2021. The Veteran reported left knee symptoms including throbbing and shooting pain. The Veteran also reported flare-ups of the left knee which resulted in swelling and aching pain that would occur on a daily basis for 60 minutes at a time after standing or sitting for long periods of time. As a result of these flare-ups, the Veteran claimed that would be unable to walk, stand, or sit, and that this would result in difficulty sleeping. The examiner indicated that the Veteran did not have a history of instability or recurrent subluxation of the knee, and the Veteran did not report a history of effusion into the knee. The Veteran's flexion was to 90 degrees, and the Veteran's extension was to 0 degrees. The examiner noted that there was evidence of pain on active and passive motion, but the examiner also opined that this did not contribute to additional functional loss. There was evidence of crepitus as well as localized tenderness, pain, or palpation of the joint. The Veteran was unable to perform repetitive range of motion testing over time. The examiner opined that the Veteran's inability to perform repetitive range of motion testing as well as the Veteran's reported history of flare-ups suggested that the Veteran manifested additional functional loss, but, when the examiner estimate the reduced range of motion, the Veteran's flexion and extension were unchanged. Factors impacting the Veteran's additional functional loss included pain, disturbance of locomotion, and less movement than normal. The examiner opined that the Veteran did not have muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or a tibial or fibular impairment. The examiner indicated that the Veteran had been diagnosed with a meniscus tear. That had resulted in a meniscectomy in 1979. The examiner did not identify any residual symptoms associated with the surgery. The examiner also provided a separate medical opinion in which the examiner indicated the following. Medical records and examinations in 2010 and 2016 do not show that [V]eteran's service-connected left knee disability described as left knee osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar progressed to include ankylosis, subluxation, nonunion of the tibia, and fibula with loose motion, and dislocated semilunar cartilage, frequent episodes of locking, pain, and effusion or severe painful motion or weakness of either the left or right knee. Imaging the dated [October 2015] impression showed no fracture, subluxation, or effusion of the left knee. MRI of right knee [i]mpression [March 5, 2015] did not show ankylosis, subluxation, or effusion of the right knee. Additionally, the [V]eteran presented with no left knee or right knee ankylosis, effusion, or subluxation, locking, or severe painful motion or weakness of either knee on the examination dated [April 11, 2021]. Examination findings, imaging, and medical records do support that left knee disability described as left knee osteoarthritis, left knee status post left knee meniscectomy with normal healed surgical scar progressed to include ankylosis, subluxation, nonunion of tibia and fibula with loose motion, and dislocated semilunar cartilage frequent episodes of locking, pain, and effusion or severe painful motion or weakness of either the left or right knee. However, bilateral knee pain and weakness were documented on the previous and the present exams during [range of motion]. The evidence submitted into the record since the November 2018 Board decision does not warrant revising the Veteran's evaluation for the left knee. The additional evidence does not support the contention that the Veteran's left knee warrants and additional disability rating, and the additional evidence to include due to the functional impairment documented in the April 2021 examination does not indicate that the Veteran is entitled to an increased disability rating for the left knee at any point in time during the period on appeal. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, an increased disability rating for a left knee disability rating is denied. The Board has considered whether or not the issue of entitlement to a total disability rating due to individual unemployability (TDIU) was raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that it has not, because, in November 2018, the Board explicitly remanded the issue of TDIU; and, in June 2020, the issue was withdrawn at the Veteran's request. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.