Citation Nr: 21040157 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-01 262 DATE: July 2, 2021 ORDER For the rating period from October 21, 2011 to December 27, 2012, an increased disability rating of 20 percent, but no higher, for right knee osteoarthritis with chondromalacia and meniscal tear, status post arthroscopy (right knee arthritis), is granted. For the rating period from December 27, 2012 to October 19, 2017, an increased disability rating in excess of 20 percent for right knee arthritis is denied. For the rating period from October 19, 2017 to April 2, 2021, an increased disability rating in excess of 30 percent for right knee arthritis is denied. For the rating period from April 2, 2021, an increased disability rating in excess of 40 percent for right knee arthritis is denied. For the initial rating period from October 21, 2011 to February 7, 2021, an initial disability rating in excess of 10 percent for right knee instability is denied. For the initial rating period from February 7, 2021, an initial disability rating in excess of 20 percent for right knee instability is denied. For the initial rating period from October 21, 2011 to April 2, 2021, a higher (compensable) initial disability rating for right knee scars is denied. For the initial rating period from April 2, 2021, an initial disability rating in excess of 20 percent for the right knee scars is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the rating period from October 21, 2011 to December 27, 2012, the right knee arthritis disability has more nearly approximated dislocated semilunar cartilage with frequent episodes of joint pain, without ankylosis, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, or nonunion or malunion of the tibia and fibula. 2. For the rating period from December 27, 2012 to October 19, 2017, the right knee arthritis disability has not been manifested by ankylosis, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, or nonunion or malunion of the tibia and fibula. 3. For the rating period from October 19, 2017 to April 2, 2021, the right knee arthritis disability has not been manifested by ankylosis, extension limited to 30 degrees or more, or nonunion or malunion of the tibia and fibula. 4. For the rating period from April 2, 2021, the right knee arthritis disability has not been manifested by ankylosis or extension limited to 45 degrees or more. 5. For the initial rating period from October 21, 2011 to February 7, 2021, the right knee instability was not manifested by moderate recurrent subluxation or lateral instability. 6. For the initial rating period from February 7, 2021, the right knee instability was not manifested by severe recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device 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. 7. For the initial rating period from October 21, 2011 to April 2, 2021, the right knee scars have not manifested in superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater. 8. For the initial rating period from April 2, 2021, the right knee scars have not manifested in five or more scars that are unstable or painful, or three or four scars that are unstable or painful, at least one of which is both unstable and painful. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from October 21, 2011 to December 27, 2012, the criteria for an increased disability rating of 20 percent, but no higher, for the right knee arthritis disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 2. For the rating period on appeal from December 27, 2012 to October 19, 2017, the criteria for an increased disability rating in excess of 20 percent for the right knee arthritis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. For the rating period on appeal from October 19, 2017 to April 2, 2021, the criteria for an increased disability rating in excess of 30 percent for the right knee arthritis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 4. For the rating period on appeal from April 2, 2021, the criteria for an increased disability rating in excess of 40 percent for the right knee arthritis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261. 5. For the initial rating period on appeal from October 21, 2011 to February 7, 2021, the criteria for a higher initial disability rating in excess of 10 percent for the right knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 6. For the initial rating period on appeal from February 7, 2021, the criteria for a higher initial disability rating in excess of 20 percent for the right knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 7. For the initial rating period on appeal from October 21, 2011 to April 2, 2021, the criteria for a higher (compensable) rating for the right knee scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.118, Diagnostic Code 7802. 8. For the initial rating period on appeal from April 2, 2021, the criteria for a higher initial disability rating in excess of 20 percent for the right knee scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1987 to December 1991. These matters were initially before the Board in January 2019, at which time the Board issued a decision that, in pertinent part, denied a higher disability rating in excess of 10 percent for the right knee arthritis from October 21, 2011 to December 27, 2012, an in excess of 20 percent from December 27, 2012 to October 19, 2017; the January 2019 Board decision also granted a 30 percent rating for the right knee arthritis from October 19, 2017 and granted a separate 10 percent rating for right knee instability from October 21, 2011. Finally, the January 2019 Board decision dismissed the issue of a higher (compensable) rating for the right knee scars based on the Veteran's withdrawal of the issue. The Veteran appealed the Board's January 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that a remand was warranted for the Board to obtain a new VA examination for the right knee and that the Board should provide adequate reasons and bases as to whether a higher rating for the right knee scars was withdrawn by the Veteran. In a July 2020 decision, the Board remanded the issues of higher disability ratings for right knee arthritis pursuant to the January 2020 JMPR, reinstated the appeal for a higher (compensable) rating for the right knee scars, and remanded the appeal for a higher rating for the right knee scars for further examination. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the right knee arthritis from October 21, 2011 to December 27, 2012 For the rating period on appeal from October 21, 2011 to December 27, 2012, the Veteran is in receipt of a 10 percent rating for the right knee arthritis disability under Diagnostic Code 5003. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the knee) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The Diagnostic Codes for rating compensable limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." Id. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Id. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Id. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. Id. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 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 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the left knee disability does not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. After a review of all the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the rating period on appeal from October 21, 2011 to December 27, 2012, the right knee arthritis disability has more nearly approximated dislocated semilunar cartilage with frequent episodes of joint pain, without ankylosis, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, or nonunion or malunion of the tibia and fibula. As such, the Board finds that a 20 percent rating under Diagnostic Code 5258 for dislocated semilunar cartilage is warranted. The change in Diagnostic Code to 5258 is more appropriate because it recognizes the nature of the right knee arthritis disability (anatomical location and functional impairment), rates on the symptoms the Veteran has (dislocation of semilunar cartilage with frequent episodes of pain, and limitation of flexion and extension to a noncompensable degree), and is both potentially and actually more favorable to the Veteran in this case. As noted above, the Veteran was in receipt of a 10 percent rating under Diagnostic Code 5003. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts, 5 Vet. App. at 538. One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Because the Board is granting a 20 percent rating under Diagnostic Code 5258, the 10 percent rating under Diagnostic Code 5003 will be discontinued because assigning separate ratings under both Diagnostic Codes 5003 and 5258 would constitute pyramiding; both Diagnostic Codes 5003 and 5258 overlap in symptoms or findings of pain and locking as forms of limitation of motion, such that assigning separate ratings under both codes would violate the prohibition against pyramiding because it would compensate the Veteran twice for the same symptomatology. 38 C.F.R. § 4.14 (directing that the evaluation of the same disability or the same manifestation under various diagnoses is to be avoided); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that, for purposes of determining whether separate evaluations violate VA's anti-pyramiding provisions, the critical element is that none of the symptoms for any one of the conditions is duplicative of or overlapping with the symptomatology of the other conditions); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Moreover, this change in Diagnostic Code does not amount to a reduction, as the rating of the Veteran's right knee arthritis disability increases from 10 percent to 20 percent as a result of this decision. VA and private treatment records throughout the rating period on appeal reflect the Veteran suffered a lateral meniscus tear in the right knee in 2004, and underwent a partial lateral meniscectomy, arthroscopy, and debridement of the lateral compartment and trochlear grove in March 2005. See October 2004 private treatment record; March 2005 private treatment record. Although VA and private treatment records throughout the rating period from October 21, 2011 to December 27, 2012, reflect negative findings for effusion into the joint, the evidence also demonstrates the Veteran reported frequent episodes of joint pain. See e.g. September 2010 private treatment record; October 2011 private treatment record; June 2012 VA examination report. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of the right knee arthritis disability more closely approximate the criteria under Diagnostic Code 5258 of dislocated semilunar cartilage with frequent episodes of joint pain; therefore, a 20 percent disability rating is warranted under Diagnostic Code 5258 from October 21, 2011 to December 27, 2012. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. The Board further finds that an increased rating in excess of 20 percent is not warranted for the rating period from October 21, 2011 to December 27, 2012. The evidence of record shows that, for the entire rating period from October 21, 2011 to December 27, 2012, the right knee arthritis disability did not manifest in symptoms of ankylosis or nonunion or malunion of the tibia and fibula. See June 2012 VA examination report. The evidence shows that right knee flexion was, at most, limited to 110 degrees with extension limited to 5 degrees. See June 2012 VA examination report; therefore, the criteria for an increased rating in excess of 20 percent under Diagnostic Codes 5256, 5260, 5261, and 5262 have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.45, 4.59, 4.71a. 2. Rating the right knee arthritis from December 27, 2012 to October 19, 2017 For the rating period on appeal from December 27, 2012 to October 19, 2017, the Veteran is in receipt of a 20 percent rating for the right knee arthritis disability under Diagnostic Code 5261. 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence of record, the Board finds that an increased disability rating for right knee arthritis in excess of 20 percent under Diagnostic Code 5261 is not warranted for the rating period from December 27, 2012 to October 19, 2017. For the rating period from December 27, 2012 to October 19, 2017, the right knee arthritis disability has not been manifested by ankylosis, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, or nonunion or malunion of the tibia and fibula. The evidence of record shows that, for the rating period from December 27, 2012 to October 19, 2017, the right knee arthritis disability did not manifest in symptoms of ankylosis or nonunion or malunion of the tibia and fibula. See e.g. June 2012 VA examination report; December 2012 VA treatment record; November 2015 VA treatment record; December 2016 VA treatment record; December 2016 VA examination report; November 2017 VA treatment record. Furthermore, the evidence shows that right knee flexion was, at most, limited to 104 degrees, with extension at most limited to 17 degrees. See December 2012 private treatment record; November 2015 VA treatment record. Therefore, the criteria for an increased rating in excess of 20 percent under Diagnostic Codes 5256, 5260, 5261, and 5262 have not been met or more nearly approximated for the rating period from December 27, 2012 to October 19, 2017. 38 C.F.R. §§ 4.3, 4.7, 4.45, 4.59, 4.71a. In the January 2020 JMPR, the parties agreed that the Board should discuss whether a separate rating under Diagnostic Code 5258 for the right knee arthritis disability is warranted. For the rating period on appeal from December 27, 2012 to October 19, 2017, the Board finds that a separate compensable rating under Diagnostic Code 5258, in addition to the 20 percent rating already assigned under Diagnostic Code 5261, is not warranted as a separate compensable rating under Diagnostic Code 5258 would constitute impermissible pyramiding. The Veteran may not be assigned separate ratings under both Diagnostic Code 5258 (dislocation of semilunar cartilage) and Diagnostic Code 5261 (limitation of extension). As discussed above, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Diagnostic Codes 5258 and 5261 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of Diagnostic Code 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. In the case of Diagnostic Code 5261, such limitation of motion is encompassed by the limitation of extension, including limitation of motion due to pain. Both diagnostic codes overlap in "locking" as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate based on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board the grant separate ratings under both Diagnostic Codes 5258 and 5261, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Veteran is not entitled to separate disability ratings under both Diagnostic Codes 5258 and 5261 for the painful limitation of motion, here, extension, associated with the right knee arthritis disability. 3. Rating right knee arthritis from October 19, 2017 to April 2, 2021 For the rating period on appeal from October 19, 2017 to April 2, 2021, the Veteran is in receipt of a 30 percent disability rating for the right knee arthritis disability under Diagnostic Code 5261. 38 C.F.R.§ 4.71a. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from October 19, 2017 to April 2, 2021, the right knee arthritis disability has not been manifested by ankylosis, extension limited to 30 degrees or more, or nonunion or malunion of the tibia and fibula. Therefore, an increased disability rating in excess of 30 percent under Diagnostic Code 5261 is not warranted. The evidence of record shows that, for the rating period from October 19, 2017 to April 2, 2021, the right knee arthritis disability did not manifest in symptoms of ankylosis or nonunion or malunion of the tibia and fibula. See e.g., November 2017 VA treatment record; April 2021 VA examination report. Furthermore, the evidence shows that right knee extension was, at most, limited to 26 degrees. See October 2017 VA treatment record. Therefore, the criteria for an increased rating in excess of 30 percent under Diagnostic Codes 5256, 5261, and 5262 have not been met or more nearly approximated for the rating period from October 19, 2017 to April 2, 2021. 38 C.F.R. §§ 4.3, 4.7, 4.45, 4.59, 4.71a. Furthermore, right knee flexion was, at most, limited to 90 degrees; therefore, the criteria for a separate compensable rating under Diagnostic Code 5260 has not been met or more nearly approximated. See October 2017 VA treatment record; November 2017 VA treatment record. In the January 2020 JMPR, the parties agreed that the Board should discuss whether a separate rating under Diagnostic Code 5258 for the right knee arthritis disability is warranted. For the reasons discussed above, the Board finds that, for the rating period on appeal from October 19, 2017 to April 2, 2021, the Veteran is not entitled to separate disability ratings under both Diagnostic Codes 5258 and 5261 for the painful limitation of extension associated with the right knee arthritis disability, as this would constitute impermissible pyramiding (38 C.F.R. § 4.14), as it would be rating twice for pain and the consequent limitation of motion. Locking is a form of limitation of motion, whether cause by pain or other orthopedic limiting factors that guide such ratings outlined at 38 C.F.R. §§ 4.40, 4.45, 4.59. 4. Rating the right knee arthritis from April 2, 2021 For the rating period on appeal from April 2, 2021, the Veteran is in receipt of a 40 percent disability rating for the right knee arthritis disability under Diagnostic Code 5010-5261. 38 C.F.R. § 4.71a. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. Diagnostic Code 5010 (traumatic arthritis) directs a rating to be assigned under Diagnostic Code 5003 for degenerative arthritis (10 percent for painful, noncompensable limitation of motion). 38 C.F.R. § 4.71a. Diagnostic Code 5261, as discussed above, provides for disability ratings based on compensable limitation of extension. After a review of all the lay and medical evidence of record, the Board finds that for the rating period on appeal from April 2, 2021, the criteria for an increased disability rating in excess of 40 percent for the right knee arthritis disability have not been met. For the rating period from April 2, 2021, the right knee arthritis disability has not been manifested by ankylosis or extension limited to 45 degrees or more. The Veteran underwent a VA examination in April 2021, the examination report for which reflects negative findings for ankylosis. Additionally, extension in the right knee was, at worst, limited to 40 degrees, including when accounting for additional functional limitation of motion due to pain, fatiguability, weakness, lack of endurance, and incoordination during episodes of flare ups. Furthermore, flexion in the right knee was at worst, limited to 70 degrees, including when accounting for additional functional limitation of motion due to pain, fatiguability, weakness, lack of endurance, and incoordination during episodes of flare ups; therefore, the criteria for a separate compensable disability rating for limitation of right knee flexion under Diagnostic Code 5260 has not been met or more nearly approximated. Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the criteria for an increased disability rating in excess of 40 percent under Diagnostic Codes 5256 and 5261 for the right knee arthritis disability have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.45, 4.59, 4.71a. In the January 2020 JMPR, the parties agreed that the Board should discuss whether a separate rating under Diagnostic Code 5258 for the right knee arthritis disability is warranted. For the reasons discussed above, the Board finds that, for the rating period on appeal from April 2, 2021, the Veteran is not entitled to separate disability ratings under both Diagnostic Codes 5258 and 5261 for the painful limitation of extension associated with the right knee arthritis disability, as this would constitute impermissible pyramiding. 38 C.F.R. § 4.14. 5. Rating right knee instability from October 21, 2011 to February 7, 2021 For the initial rating period from October 21, 2011 to February 7, 2021, the Veteran is in receipt of an initial 10 percent rating for right knee instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. As noted above, Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. A September 2010 private treatment record shows the Veteran complained of right knee pain but denied any episodes of the knee giving way. During a June 2012 VA examination, the Veteran complained of right knee pain. Upon examination, joint stability testing revealed normal results in all planes tested. Although the Veteran has reported instability in a June 2012 Statement in Support of Claim, both the June 2012 VA examination and a right knee examination done in October 2012 revealed no instability in the right knee. See October 2012 VA treatment record. A December 2012 VA treatment record reflects the Veteran reported wearing a knee sleeve with some relief and an examination of the right knee revealed mild laxity of the lateral collateral ligament. A December 2016 VA examination report shows the Veteran reported a range of right knee symptoms, including daily chronic pain, stiffness, fatigability and lack of endurance. The Veteran reported locking and catching in the right knee but denied ongoing feelings of giving way or instability. The Veteran was noted to use a brace for support and to help minimize right knee pain. The December 2016 VA examiner stated that joint stability testing was not indicated and explained that the Veteran did not describe any ongoing issues with instability or feelings of giving way in the knees. An October 2017 VA treatment record reflects findings of some medial-lateral instability in the right knee. A December 2018 VA treatment record shows the Veteran complained of continued right knee discomfort and sensation of instability to the lateral aspect of the right knee. Such symptomatology represents a "slight" impairment of the Veteran's right knee functionality, and not a "moderate" impairment of right knee functionality. Based on the foregoing, the Board finds that the weight of the evidence is against finding that symptomatology of right knee instability more nearly approximates a "moderate" impairment of right knee functionality; therefore, an increased disability rating in excess of 10 percent for right knee instability is not warranted under Diagnostic Code 5257. 38 C.F.R. §§ 4.3, 4.7, 4.71a. 6. Rating right knee instability from February 7, 2021 For the initial rating period from February 7, 2021 forward, the Veteran is in receipt of an initial 20 percent rating for right knee instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections recurrent subluxation or instability and patellar instability, each with its own criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For recurrent subluxation or instability, three ratings are available. A 10 percent 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 is warranted under one of two scenarios: 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 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 rating is warranted 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. For patellar instability, three ratings are available. 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 20 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 one of the following: a brace, cane, or walker. A 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. Two Notes accompany the revised Diagnostic Code 5257. Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 states 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). After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against assigning a higher initial rating in excess of 20 percent for right knee instability for the initial rating period from February 7, 2021. The weight of the evidence of record demonstrates that the right knee instability did not manifest in severe recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device 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. While the medical evidence of record shows the Veteran was prescribed a knee brace, the evidence does not demonstrate that the Veteran has been prescribed an assistive device for ambulation or either a cane or a walker. See February 2016 VA treatment record; December 2017 VA treatment record. Although the April 2021 VA examination report reflects the Veteran reported occasional use of a wheelchair and regular use of a cane, VA and private treatment records do not reflect that these assistive devices have been prescribed by a medical provider. Instead, the April 2021 VA examiner specifically noted that only the knee brace had been prescribed by a medical provider. Furthermore, the April 2021 VA examiner noted positive findings for recurrent subluxation or persistent instability, but noted negative findings for recurrent patellar instability. Based on the foregoing, the Board finds that the weight of the evidence is against finding that the right knee instability had manifested in severe recurrent subluxation or lateral instability. Although the April 2021 VA examiner found recurrent subluxation or persistent instability, the VA examiner also noted negative findings for recurrent patellar instability. Other VA and private treatment records throughout the rating period on appeal from February 7, 2021 also do not reflect findings of severe instability of the right knee joint measuring between 10 and 15 millimeters (required for a 30 percent rating under Diagnostic Code 5257). Furthermore, while the April 2021 VA examination report noted occasional use of a wheelchair and regular use of a cane, the VA examiner specifically noted that only a knee brace had been prescribed by a medical provider and did not find that the Veteran had been prescribed both bracing for ambulation and an assistive device such as a cane or a walker (requirement for a 30 percent rating under revised Diagnostic Code 5257). As such, the Board finds that a higher initial disability rating in excess of 20 percent for right knee instability is not warranted under either the old or revised Diagnostic Code 5257 for the initial rating period from February 7, 2021. 38 C.F.R. § 4.71a. 7. Rating right knee scars from October 21, 2011 to April 2, 2021 For the initial rating period on appeal from October 21, 2011 to April 2, 2021, the Veteran is in receipt of a noncompensable (0 percent) initial disability rating for the right knee scars under Diagnostic Code 7802. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, for disfigurement of the head, face, or neck, a 10 percent disability rating is warranted for scarring with one characteristic of disfigurement. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. A 50 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five characteristics of disfigurement. An 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or six or more characteristics of disfigurement. 38 C.F.R. § 4.118. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1). Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that, for the initial rating period on appeal from October 21, 2011 to April 2, 2021, the right knee scars have not manifested in superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran underwent a VA examination in March 2013, the examination report for which reflects the right knee scars consist of three scars: one linear scar measuring 3 cm. and two superficial non-linear scars measuring 0.75 cm. by 0.3 cm. and 1 cm. by 0.4 cm., totalling 0.625 sq. cm. The Veteran underwent another VA examination in December 2016, the examination report for which reflects the right knee scars were unchanged from the time they were examined during the March 2013 VA examination. The right knee scars were again measured at 3 cm., 0.75 cm. by 0.3 cm., and 1 cm. by 0.4 cm., totalling 0.625 sq. cm. The right knee scars have been measured to cover approximately 0.625 sq. cm., which does not more nearly approximate a scar covering an area or areas of 929 sq. cm. or greater (criteria for 10 percent rating). Based on the foregoing, the Board finds that a higher initial compensable disability rating for the right knee scars are not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7802. The Board has considered whether increased (or separate compensable) disability ratings may be awarded under any other diagnostic code. As the evidence reflects that the right knee scars have not manifested in a burn scar of the head, face, or neck, a higher rating cannot be assigned under Diagnostic Code 7800. The evidence also demonstrates that the right knee scars have manifested in superficial scars not associated with underlying soft tissue damage, thus a higher initial rating cannot be assigned under Diagnostic Code 7801. Additionally, as the right knee scars have not been found to be painful or unstable, a higher initial compensable rating cannot be assigned under Diagnostic Code 7804. Finally, as the right knee scars do not result in any additional disabling effects, a higher initial compensable disability rating may not be awarded under Diagnostic Code 7805. 8. Rating right knee scars from April 2, 2021 For the initial rating period on appeal from April 2, 2021, the Veteran is in receipt of an initial 20 percent disability rating for the right knee scars under Diagnostic Code 7804. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that, for the initial rating period from April 2, 2021, the right knee scars have manifested in one or two scars that are unstable or painful, one of which is both painful and unstable. The right knee scars have not manifested in five or more scars that are unstable or painful, or three or four scars that are unstable or painful, at least one of which is both unstable and painful. Therefore, the criteria for a higher 30 percent rating under Diagnostic Code 7804, have not been met. 38 C.F.R. § 4.118. The Veteran underwent a VA examination in April 2021, the examination report for which reflects the right knee scars have manifested in three scars. Scar 1 measured 3 cm. by 0.5 cm, scar 2 measured 2 cm. by 0.5 cm, and scar 3 measured 1 cm. by 0.3 cm. The April 2021 VA examiner found that scar 1 and scar 2 were painful and that scar 1 was also unstable upon inspection. The April 2021 VA examination report demonstrates the right knee scars have manifested in two scars that are unstable or painful (criteria for a 10 percent rating), and that scar 1 was found to be both unstable and painful (criteria for additional 10 percent rating under Note 2). Neither the April 2021 VA examination report or VA or private treatment records for the initial rating period from April 2, 2021 show that the right knee scars have manifested in five or more scars that are unstable or painful (criteria for a 30 percent rating), or that the right knee scars have manifested in three or four scars that are unstable or painful, at least one of which is both unstable and painful (criteria for a 20 percent rating and additional 10 percent rating under Note 2). The Board has considered whether increased (or separate compensable) disability ratings may be awarded under any other diagnostic code. As the evidence reflects that the right knee scars have not manifested in a burn scar of the head, face, or neck, a higher rating cannot be assigned under Diagnostic Code 7800. The evidence also demonstrates that the right knee scars have manifested in superficial scars not associated with underlying soft tissue damage, thus a higher initial rating cannot be assigned under Diagnostic Code 7801. Finally, as the right knee scars do not result in any additional disabling effects, a higher initial compensable disability rating may not be awarded under Diagnostic Code 7805. REASONS FOR REMAND 9. A TDIU is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record or a veteran during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). In several correspondences to the Board, the Veteran has asserted using the Family and Medical Leave Act (FMLA) to take substantial time off work due to the service-connected right knee arthritis disability. See e.g. June 2021 correspondence. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the rating issues decided herein; however, a remand is required prior to adjudication of the claim for a TDIU for the Agency of Original Jurisdiction (AOJ) to adjudicate TDIU in the first instance. The issue of TDIU is REMANDED for the following actions: 1. Send the Veteran an Individual Unemployability form (VA Form 21-8940). The specific information in that form is requested from the Veteran; the Veteran should thoroughly complete and return this form. Failure to fully complete this form may result in denial of the TDIU claim. See 38 C.F.R. § 3.158(a). (Continued on the next page) 2. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for TDIU. The AOJ should take any additional development as deemed necessary. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.