Citation Nr: 21041289 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-15 330 DATE: July 8, 2021 ORDER An evaluation of 20 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar, for the period from January 31, 2011, until December 3, 2013, is granted. An evaluation in excess of 20 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar, prior to November 14, 2017 is denied. An evaluation in excess of 10 percent for right knee valgus laxity is denied. An evaluation in excess of 30 percent for status-post right total knee arthroplasty (previously rated as status post cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) prior to September 23, 2020 and in excess of 60 percent, thereafter, is denied. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis left knee, prior to March 16, 2015 is denied. Entitlement to an evaluation in excess of 10 percent for left knee valgus laxity, prior to March 16, 2015 is denied. Entitlement to a rating in excess of 30 percent for status-post left total knee arthroplasty with residual surgical scar, prior to September 23, 2020 and in excess of 60 percent, thereafter, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from January 31, 2011, until December 3, 2013, is granted. FINDINGS OF FACT 1. From January 31, 2011, the Veteran's status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar was manifested by symptoms of frequent episodes of joint "locking," and frequent episodes of joint pain. 2. Prior to November 14, 2017, the Veteran's right knee valgus laxity was characterized by slight recurrent subluxation or lateral instability. 3. Prior to September 23, 2020, the Veteran's status-post right total knee arthroplasty (previously rated as status post cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) was manifested by intermediate degree of residual weakness, pain or limitation of motion, flexion to 120 degrees and extension to 0 degrees. 4. From September 23, 2020, the Veteran's status-post right total knee arthroplasty (previously rated as status post cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) was manifested by symptoms of chronic severe pain and weakness. 5. Prior to March 16, 2015, the Veteran's left knee traumatic arthritis was not manifested by flexion limited to 30 degrees. 6. Prior to March 16, 2015, the Veteran's left knee valgus laxity was characterized by slight recurrent subluxation or lateral instability. 7. Prior to September 23, 2020, the Veteran's status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis and valgus laxity) associated with traumatic arthritis was manifested by intermediate degree of residual weakness, pain or limitation of motion, flexion to 120 degrees and extension to 0 degrees. 8. From September 23, 2020, the Veteran's status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis and valgus laxity) associated with traumatic arthritis has manifested by symptoms of chronic severe pain and weakness. 9. Prior to December 3, 2013, the Veteran service-connected disabilities were of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to December 3, 2013, the criteria for an evaluation of 20 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 2. Prior to January 1, 2017, the criteria for an evaluation in excess of 20 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 3. Prior to November 14, 2017, the criteria for an evaluation in excess of 10 percent for right knee valgus laxity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. Prior to September 23, 2020, the criteria for an evaluation in excess of 30 percent for right knee traumatic arthritis status post total right knee arthroplasty, and in excess of 60 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 5. Prior to March 16, 2015, the criteria for an evaluation in excess of 10 percent for left knee traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5010. 6. Prior to March 16, 2015, the criteria for an evaluation in excess of 10 percent for left knee valgus laxity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. Prior to September 23, 2020, the criteria for an evaluation in excess of 30 percent for status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis and valgus laxity) associated with traumatic arthritis, and in excess of 60 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 8. Prior to December 3, 2013, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1979 to August 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. During the pendency of the appeal, in a January 2014 rating decision the RO granted an increased rating for right knee status-post cruciate ligament reconstruction and torn meniscus with residual scar from 10 percent to 20 percent, effective December 3, 2013. In August 2015, the RO granted a temporary 100 percent rating for status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis, left knee and valgus laxity, left knee) from March 16, 2015 to April 30, 2016. Thereafter, a 30 percent rating was assigned for this disability, effective May 1, 2016. This new rating effectively combined the prior separate ratings for the left knee arthritis and left knee valgus laxity. The Board notes that because the increase and assignment of a separate evaluation did not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In December 2017 the Board remanded the appeal for additional development to include obtaining examinations. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. By way of history, in a January 2003 rating decision, the Veteran was granted service connection for status post cruciate ligament reconstruction and torn medial meniscus, right knee with residual scar (claimed as right knee condition) with a noncompensable evaluation, effective October 4, 2002. In September 2004, the RO increased the evaluation for status post cruciate ligament reconstruction and torn medial meniscus, right knee with residual scar from noncompensable to 10 percent, effective October 4, 2002. Additionally, the RO granted service connection for traumatic arthritis, left knee at 10 percent, effective September 2, 2004. In January 2007 the Veteran filed an increased evaluation claim. In a June 2007 rating decision, the RO granted service connection for right and left knee valgus laxity, both at 10 percent, effective February 12, 2007. The RO, also, continued the 10 percent rating for traumatic arthritis of the left knee and the status post cruciate ligament reconstruction and torn medial meniscus, right knee, with residual scar. The Veteran did not appeal the rating for the left and right knee conditions and the June 2007 rating decision became final. In September 2008, the Veteran filed another increased evaluation for his right and left knee conditions. A February 2009 rating decision continued the 10 percent rating for left knee valgus laxity, right knee valgus laxity, traumatic arthritis left knee and status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar. The Veteran did not appeal the rating for the left and right knee conditions and the February 2009 rating decision became final. In January 2011, the Veteran filed an increased evaluation claim for his left knee and right knee disabilities, In an August 2012 rating decision, the RO confirmed and continued the 10 percent evaluation for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar and left knee valgus laxity. As mentioned above, in a January 2014 rating decision the RO granted an increased rating for right knee status-post cruciate ligament reconstruction and torn meniscus with residual scar from 10 percent to 20 percent, effective December 3, 2013. Next, in March 2015, the Veteran underwent a left knee total knee replacement. In August 2015, the RO granted a temporary 100 percent rating for status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis, left knee and valgus laxity, left knee) from March 16, 2015 to April 30, 2016 and an evaluation of 30 percent from May 1, 2016, thereafter. In November 2017, the Veteran underwent a right knee total knee replacement. Consequently, in September 2018, the RO granted a temporary evaluation of 100 percent for status post right total knee arthroplasty from November 14, 2017 to December 31, 2019 and an evaluation of 30 percent from January 1. 2019. More recently, in a January 22, 2020 rating decision, the RO increased the evaluation for status-post right total knee arthroplasty (previously rated as s/p cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) and for status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis and valgus laxity) both from 30 percent to 60 percent, effective September 23, 2020. In a March 2021 rating decision, the RO granted entitlement to TDIU, effective December 3, 2013. Because the increase and assignment of separate evaluations did not constitute a full grant of the benefits sought, the increased rating issues prior to March 16, 2015, for the left knee and prior to November 2017, for the right knee, remains on appeal. Further, because the January 2020 rating decision constitute less than the maximum available benefit for a schedular rating and because the higher rating was not awarded for the entirety of the claim's period, those claims also remains before the Board. Lastly, the issue of entitlement to TDIU was not awarded for the entirety of the claim's period and is also before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). For the period on appeal prior to March 16, 2015, for the left knee and prior to November 14, 2017, for the right knee, the Board finds that further development cannot add any additional value to the Veteran's increased rating claim in light of the Veteran's total left knee replacement surgery in March 2015 and the total right knee replacement surgery in November 2017. Lastly, a March 2021 rating decision granted entitlement to TDIU, effective December 3, 2013. A partial grant of TDIU does not bifurcate an appeal for TDIU. Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Payne v. Wilkie, 31 Vet. App. 373 (2019). Thus, the issue remains before the Board. The issue has been recharacterized as entitlement to a TDIU prior to December 3, 2013. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran's disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. It is essential that the examination on which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See id. The evaluation of joint disabilities must involve the following factors: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing must also be considered. See id. A rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated as though it were caused by another factor, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints should be carefully noted and definitely related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. In order to constitute functional loss, pain must affect some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate the evidence. See 38 U.S.C. § 7104 (a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102 , 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Diagnostic Codes (DC) 5256 through 5263 set forth the relevant provisions for disabilities of the knee. See 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. DC 5256 governs ankylosis of the knee and provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees, and a 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. The Rating Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. DC 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a. Because the terms "slight," "moderate," and "severe" are not defined in the Rating Schedule, instead of applying a mechanical formula, the Board must evaluate all the evidence of record to ensure that its adjudication of an increased rating claim is equitable and just. See 38 C.F.R. § 4.6. DC 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a. DC 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. See id. DC 5260 governs the limitation of leg flexion and provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum 30 percent rating for flexion limited to 15 degrees. See id. DC 5261 governs the limitation of leg extension and provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum 50 percent rating for extension limited to 45 degrees. See id. DC 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. See id. Impairment of the tibia and fibula manifesting nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating. See id. DC 5263 provides a maximum 10 percent rating for genu recurvatum that is acquired and traumatic and accompanied by objectively demonstrated weakness and insecurity in weight-bearing. See id. DC 5010 provides that traumatic arthritis established by X-ray findings is rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes 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 codes, a 10 percent rating may be assigned for each such major joint or group of minor joints so affected. See 38 C.F.R. § 4.71a; 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, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings may not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5003, Note 1. he Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, none of the relevant diagnostic codes for evaluating the Veteran's knee condition, that is, Diagnostic Codes 5055, 5260, and 5261, were changed. The assignment of a particular DC depends upon the facts of each particular case, and the Board is authorized to choose an appropriate DC that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the DC assigned to that disability is revised in order to more accurately reflect the veteran's relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). 1. Entitlement to a staged rating in excess of 10 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar prior to December 3, 2013, and in excess of 20 percent, thereafter. 2. Entitlement to an evaluation in excess of 10 percent for right knee valgus laxity prior to November 14, 2017. 3. Entitlement to an evaluation in excess of 30 percent for status-post right total knee arthroplasty (previously rated as status post cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) prior to September 23, 2020 and in excess of 60 percent, thereafter. The Veteran contends that he is entitled to higher disability ratings than he is currently rated for bilateral knee conditions. A claim for increased rating was filed in January 2011. As such the question before the Board is whether higher ratings are warranted as of January 2011. In this case, the Veteran's service-connected right knee disability was assigned a 10 percent disability rating for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar from October 4, 2002 and 20 percent disabling from December 3, 2013 to November 14, 2017, under Diagnostic Code 5258-5260. Additionally, the Veteran was assigned a 10 percent rating for right knee valgus laxity from February 12, 2007 to November 14, 2017, under Diagnostic Code 5257. In November 2017, the Veteran underwent a right knee total knee replacement and was assigned a temporary 100 percent disability rating for status-post right total knee arthroplasty (previously rated as s/p cruciate ligament reconstruction, torn medial meniscus with degenerative arthritis and valgus laxity) from November 14, 2017 to December 31, 2018, a 30 percent from January 1, 2019 and a 60 percent from September 23, 2020, under Diagnostic Code 5055. The Board will evaluate entitlement to a rating in excess of 10 percent prior to December 3, 2013; a rating in excess of 20 percent prior to November 14, 2017; a rating in excess of 30 percent beginning January 1, 2019; and a rating in excess of 60 percent beginning September 23, 2020 for right knee disability. The Board will further evaluate entitlement to a rating in excess of 10 percent prior to November 14, 2017 for right knee valgus laxity. The period from March 16, 2015 to April 30, 2016 will not be evaluated as the Veteran is in receipt of a 100 percent evaluation. The Veteran has been afforded five (5) VA examinations throughout the appeal period in relation to his right knee disabilities. In March 2011, December 2013, June 2015, June 2018 and September 2020. Prior to November 14, 2017 VA treatment records from November 2010 note Veteran complaint of constant right knee pain, aggravated by prolonged weight bearing with occasional lock and give out. On physical examination the Veteran's right knee had no effusion, range of motion (ROM) intact, no click or cluck and no tenderness to palpation. A December 2010 X-ray of the right knee shows 1.7cm calcified intra-articular loose body versus dystrophic calcification overlying lateral compartment and a 0.7 cm calcified intra-articular loose body posterior to superior patella. Severe medial compartment degenerative disease with complete loss of joint space. Moderate patellofemoral compartment degenerative disease. No fracture. The record shows a January 2011 Note indicating that Veteran reported that he still has severe right knee pain and locking sensation. At the March 2011 VA examination, the Veteran reported his knee condition has been progressively worse. The Veteran has been treated with medication and bracing with fair response. The examiner noted the following symptoms on the right knee: pain, stiffness, and weakness, The Veteran is able to stand for 15-30 minutes and walk 1-3 miles. He uses a cane intermittent, but frequent. On physical examination, a weight bearing joint was affected, had normal gait. The anterior drawer test was positive, no crepitation, no instability. The examiner found subpatellar tenderness abnormality, locking noted, evidence of meniscus tear, McMurray's test was positive. Range of motion was flexion to 130 degrees, extension 0. No evidence of pain following repetitive motion and no additional limitation of ROM after 3 repetitions. No ankylosis. ROM not limited by pain, weakness, fatigue, incoordination, or lack of endurance with 3 repetitions of motion or flares. A March 2011 MRI shows chronic full thickness tear of the anterior cruciate ligament. The examiner noted diagnoses of chronic right ACL tear, S/P right knee partial medial meniscectomy, right lateral meniscal tear and DJD bilateral knee. The effects of the condition on usual daily activities is moderate for chores, shopping, exercise, sports and recreation. An April 2013 VA orthopedic surgery note indicates that the Veteran reported severe bilateral knee pain that has failed non operative treatment and is interested in knee replacement surgery. The examiner noted no lesions or wounds on right knee, varus alignment, pain to palpation medial joint line, ROM 0 to 120, corrects to neutral from varus alignment, stable to varus stress with knee in varus alignment, grade 2 laxity with valgus stress correcting to neutral, motor/sensation intact to dp/sp/tibial nerves. X-rays shows severe arthritis in right knee. At the December 2013 VA examination the Veteran reported that his arthritis has worsened and is now pending a total right knee replacement. He did not report flare ups. On examination, ROM was flexion 0 to 120, with pain beginning at 100 degrees. Extension 0 degrees with no objective evidence of painful motion. No additional limitation of ROM was noted after repetitive-use testing. The Veteran functional loss and functional impairment noted was less movement than normal, pain on movement, swelling, and interference with sitting, standing and weight-bearing. Tenderness on palpitation was also noted. Muscle strength on flexion and extension was normal. The Lachman test and posterior drawer test for instability were normal. Medial lateral instability was 2+ (5-10 mm). No patellar subluxation or dislocation was noted. The examiner noted meniscal condition with symptoms of meniscal tear, frequent episodes of joint "locking" and frequent episodes of joint pain. Veteran had meniscectomy of the right knee in 1981 with residuals of advance arthritis and valgus laxity. The Veteran uses a cane constantly. The examiner remarked that the Veteran does not currently experience flare ups in the knee but has chronic pain. Therefore, no change would be expected. All joints, including healthy joints, can lead to fatigue with repetitive use that would force an individual to discontinue the activity until rested. A February 2015 medical treatment note indicates that the Veteran reported knee pain 8-9/10 at its worst. Pain is worse in the mornings and in the afternoon, after activity. He points to his pain being in the lateral and front aspect of his knee and under his patella. His pain is a constant, deep, dull, and achy pain with sharp pains depending on his activity. At the June 2015 VA examination report, the examiner noted right knee ROM was flexion to 95 degrees, extension to 0. Pain was noted at examination on flexion and extension, causing functional loss. Functional loss was described as "moderately increased time required to complete, as well as ability to perform only occasionally, certain occupational tasks such as climbing, stooping, kneeling and crouching as well as decreased standing and ambulation potential secondary to pain." There was evidence of pain with weight-bearing. No evidence of localized tenderness or pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss after 3 repetitions. The Veteran was not examined immediately after repeated use over time. Pain significantly limit functional ability with repeated use over a period of time. The examiner noted been "unable to provide degree of additional ROM loss as the examinee does not indicate that his flare ups are always of the same intensity. This would suggest flare ups range from a mild to severe magnitude with a corresponding difference in additional loss of ROM. Theoretically a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever. Furthermore, the claimant does not indicate a specific numerical loss of range of motion either when discussing the anatomical regions in question." The Veteran was not examined during a flare up, however, the examiner noted that the Veteran reported daily flare ups, moderate to severe that lasts from hours to all day. Pain significantly limit functional ability with flare ups. The examiner was not able to describe in terms of range of motion and provided the same reasonings as above. Additional contributory factors of the right knee disability are less movement than normal, deformity, disturbance of locomotion and interference with standing. Muscle strength is normal. No ankylosis. No recurrent subluxation. No instability. No recurrent effusion. Joint stability testing was performed, and it was normal. No meniscus condition was noted. Private treatment records from September 2017 shows the Veteran's ROM for right knee was flexion to 100 degrees, extension -5 degrees. The examiner noted alignment 10 degrees varus, effusion 2+. Pain with valgus stress examination and varus stress examination. No instability. The examiner noted assessment severe DJD right knee with 10 degrees of Varus deformity, flexion contracture, patellar malalignment, prepatellar bursitis, obesity (BMI=36), prior surgery right knee. The Veteran's right knee disability is rated at 10 percent under DC 5260 -5010 for the period before December 3, 2013. The Board finds that the evidence for this period warrants a higher rating of 20 percent under DC 5258. The March 2011 examiner noted the Veteran's right knee had no effusion, no locking episodes, however, VA treatment records from January 2011 show the Veteran's complaint of right knee joint pain and locking sensation. MRI's of record noted that there had been meniscus tears. This evidence establishes that the 20 percent rating under DC 5258 is warranted for this period. The Board finds that the Veteran is competent to report the observable symptoms of his service-connected right knee disability, and that the record contains no evidence undermining the credibility of the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The 20 percent rating is the highest available under DC 5258. 38 C.F.R. § 4.71a. Though this rating is based on evidence from 2011 and 2013, the Board will resolve any reasonable doubt in the Veteran's favor and award the increased rating from the date the Veteran filed his claim for an increased rating, which is January 31, 2011. It is noted that there is no evidence in the record to suggest that the Veteran's knee was not of this severity at the time he was experiencing symptoms that led him to seek an increased rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.400(o), 4.3. For this period, the 20 percent rating under DC 5258 will replace the current 10 percent rating under DC 5260-5010. As explained above, DC 5010 provides that the disability be rated under DC 5003, and DC 5003 in turn provides that the disability be evaluated for limitation of motion of the affected part. Here, the 10 percent rating has been assigned for limitation of motion under DC 5260. Under DC 5258, a 20-percent rating is warranted for symptoms that include locking and pain, which are symptoms that limit motion and therefore likewise fall within the category of limitation of motion. Thus, if a rating under DC 5258 were awarded along with the present 10 percent rating under DC 5010, the Veteran would be compensated twice for symptoms creating limitation of range of motion in the knee. Such double-payment, which is referred to as "pyramiding," is expressly forbidden by the regulations, and therefore VA cannot award both ratings simultaneously. 38 C.F.R. § 4.14. Because the rating under DC 5258 results in the highest rating for the Veteran, it is the rating that the Board will award for this period. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board further finds, however, that a higher rating, for limitation of motion of the leg is not warranted. At no time during the appeal period was his right knee flexion limited to 60 degrees, or his right knee extension limited to 5 degrees. The Board has also considered whether a separate or increased rating may be assigned under other diagnostic codes but finds that there is no competent medical evidence to assign evaluations in excess of the rating already assigned for the period of appeal prior to November 14, 2017. Specifically, in the VA examinations and treatment records, there is no evidence of ankylosis, recurrent subluxation, dislocated or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum that would support a separate or increased evaluation under the criteria set forth in Diagnostic Codes 5256 (ankylosis), 5259 (removal of semilunar cartilage), 5262 (malunion or nonunion of the tibia and fibula), and 5263 (genu recurvatum). As for the Veteran's right knee valgus laxity, he does not qualify for an evaluation in excess of 10 percent prior to November 14, 2017 because the record does not show moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Joint stability tests were normal at the December 2013 and June 2015 VA examinations, and the record does not otherwise show that there was instability during this period. The preponderance of the evidence is against the award of a disability rating greater than 20 percent for status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar, or an evaluation in excess of 10 percent for right knee valgus at any time during the appeal period before November 14, 2017. As such, the benefit of the doubt doctrine is inapplicable, and the claims must otherwise be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). From January 1, 2019 The Veteran asserts that his right total knee arthroplasty warrants a rating in excess of 30 percent prior to September 23, 2020. The Veteran's right total knee arthroplasty is rated under Diagnostic Code 5055. Under Diagnostic Code 5055, 30 percent is warranted when the Veteran shows signs of intermediate degree of residual weakness, pain or limitation of motion and is rated analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted when the Veteran suffers from chronic residuals consisting of severe painful motion or weakness in the affected extremity. A rating between 30 and 60 percent may be granted based upon the analogous ratings of the aforementioned codes. A 40 or 50 percent rating could also be assigned for intermediate degrees of residual weakness, pain, limitation of motion, and other symptoms related to a knee replacement with prosthesis, because Diagnostic Code 5055 allows to rate such symptoms by analogy to Codes 5256, 5261, or 5262. Under Diagnostic Code 5256, a 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees and maximum 60 percent rating is assigned for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. Under Diagnostic Code 5261, a 40 percent rating is assigned for extension of a leg limited to 30 degrees, and a maximum 50 percent rating is assigned for extension limited to 45 degrees. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with marked knee warrants a 30 percent rating, while impairment of the tibia and fibula manifested by nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The record shows X-rays from November 2017 for right knee status post-surgery showing right knee replacement in anatomic location, no acute fracture or dislocation is seen. Private treatment records from December 2017, indicate that the Veteran reported minimal pain and stiffness. The Veteran's ROM was flexion to 110 degrees and extension to 0 degrees. No effusion. At the June 2018 VA examination, the Veteran reported he is better able to walk after knee replacements, but he is unable to kneel, run, climb ladders and has pain with stair climbing. Since knee replacement veteran has not fallen, he has gained greater stability with the knees, swelling and popping of the knees has stopped. Veteran continues to complain of pain in bilateral knees but says it has decreased significantly since surgery. Initial ROM of right knee was flexion to 120 degrees, extension to 5 degrees. No pain noted on exam. No evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No crepitus. The Veteran able to perform repetitive use testing with no additional functional loss. No additional factors contributing to disability. Normal muscle strength. No ankylosis. No recurrent subluxation, lateral instability, or recurrent effusion. No instability. No current symptoms of meniscus condition. The examiner noted residuals of total knee joint replacement, right knee, as intermediate degrees of residual weakness, pain or limitation of motion. There is no evidence of pain on passive range of motion testing. The examiner remarked that there is no evidence of pain when the joint is used in non-weight bearing. Veteran has had knee replacements in bilateral joints. Range of motion testing was completed bilaterally. VA treatment records from June 2019 shows the Veteran reported continuous knee pain. At the September 2020 VA examination report, the examiner noted that the Veteran's knee condition has progressed. Symptoms of stiffness, decreased range of motion, and constant ache to bilateral knees were noted. The Veteran reported flare ups at least 3 to 4 times per week and described functional loss as unable to stand for long periods of time, "I need to sit down and rest." On examination, the right knee ROM was flexion to 120, extension to 0. Pain noted on flexion and extension but does not result in functional loss. There is objective evidence of localized tenderness or pain on palpation of the right knee of mild severity due to status-post right knee meniscus with degenerative arthritis with residual scar. There is evidence of pain with weight bearing. No crepitus. Veteran was able to perform repetitive-use testing without additional loss of function. Pain significantly limit functional ability with repeated use over a period of time. In terms of ROM flexion to 120 degrees and extension to 0 degrees. Additional contributing factors of right knee disability are weakened movement, disturbance of locomotion, interference with sitting, interference with standing, weak movement, pain with walking, standing, and sitting. No ankylosis, no instability. Meniscal condition with frequent episodes of pain. The Veteran uses a brace regularly and cane and walker, occasionally. There is pain in non-weight bearing. In January 2021 an Addendum report was obtained as the September 2020 examiner did not complete the corresponding section of the knee DBQ for VA to properly evaluate the left and right knees, status post total knee arthroplasty. The examiner noted for the right knee total knee arthroplasty, chronic residuals consisting of severe painful motion or weakness. Scar, chronic pain, mild tenderness, stiffness, and decreased ROM. Prior to September 23, 2020, the record shows intermediate degrees of residual weakness, pain or limitation of motion and does not show evidence of chronic residuals consisting of severe painful motion or weakness. Thus, the Board finds a rating in excess of 30 percent for total right knee arthroplasty is not more nearly approximated under Diagnostic Code 5055. The Board also finds that an increased disability rating is not warranted under the other available knee rating criteria under Diagnostic Codes 5256, 5261 and 5262. While the Veteran reported continuous right knee pain in June 2019, there was no objective evidence of limitation of right knee extension to 30 degrees, so as to warrant a 40 percent rating under Diagnostic Code 5261. Likewise, there is no evidence in the claims file showing ankylosis or impairment of the tibia or fibula, warranting a higher rating under Diagnostic Codes 5256 and 5262. As such, prior to September 23, 2020, the Veteran is not entitled to a higher rating under DCs 5256, 5261, or 5262 respectively. For the period from September 23, 2020, the record shows chronic residuals consisting of severe painful motion or weakness. Scar, chronic pain, mild tenderness, stiffness, and decreased ROM. Thus, the Board finds a rating in excess of 60 percent for total right knee arthroplasty is not more nearly approximated under Diagnostic Code 5055. A rating in excess of 60 percent is not warranted at any point during the appeal. Diagnostic Code 5055 does not allow for a rating higher than 60 percent other than during the year following implantation of prosthesis. 38 C.F.R. § 4.71a. Thus, the Veteran is now receiving the highest schedular rating available for right knee replacement. The Board has considered the Veteran's lay statements. The Veteran is competent to report symptoms. However, the overall evidence of record is based on review by medical examiners. This evidence is highly probative and does not show that the Veteran suffers from severe symptoms associated with his right total knee arthroplasty, prior to September 23, 2020 and a rating in excess of 60 percent under Diagnostic Code 5055 is not allowed during the period on appeal. Accordingly, the Veteran's entitlement to an increased rating above 30 percent for his right total knee arthroplasty prior to September 23, 2020 and above 60 percent, thereafter, is denied. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis left knee, prior to March 16, 2015 5. Entitlement to an evaluation in excess of 10 percent for left knee valgus laxity, prior to March 16, 2015. 6. Entitlement to a rating in excess of 30 percent for status-post left total knee arthroplasty with residual surgical scar, effective May 1, 2016 The Veteran's service-connected left knee disability was assigned a 10 percent disability rating for traumatic arthritis, left knee from September 2, 2004 to March 16, 2015, under Diagnostic Code 5260-5010. Additionally, the Veteran was assigned a 10 percent rating for left knee valgus laxity from February 12, 2007 to March 16, 2015, under Diagnostic Code 5257. In March 2015, the Veteran underwent a left knee total knee replacement and was assigned a temporary 100 percent disability rating for status-post left total knee arthroplasty with residual surgical scar (previously rated as traumatic arthritis and valgus laxity) associated with traumatic arthritis, left knee from March 16, 2015 to April 30, 2016, a 30 percent from May 1, 2016 and a 60 percent from September 23, 2020, under Diagnostic Code 5055. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to March 16, 2015; a rating in excess of 30 percent beginning May 1, 2016; and a rating in excess of 60 percent beginning September 23, 2020 for left knee disability. The Board will further evaluate entitlement to a rating in excess of 10 percent prior to November 14, 2017 for left knee valgus laxity. The period from March 16, 2015 to April 30, 2016 will not be evaluated as the Veteran is in receipt of a 100 percent evaluation. The Veteran has been afforded five (5) VA examinations throughout the appeal period in relation to his left knee disabilities. In March 2011, December 2013, June 2015, June 2018 and September 2020. Prior to March 16, 2015 VA treatment records from November 2010 note Veteran complaint of constant left knee pain, aggravated by prolonged weight bearing with occasional lock and give out. On physical examination the Veteran's left knee had no effusion, ROM intact, no click or cluck and no TTP. A December 2010 X-ray of the left knee shows mild medial compartment degenerative disease. Mild patellofemoral compartment degenerative disease. No fracture or subluxation. At the March 2011 VA examination, the Veteran reported his knee condition has been progressively worse. The Veteran has been treated with medication and bracing with fair response. The examiner noted the following symptoms on the left knee: pain and stiffness. The Veteran is able to stand for 15-30 minutes and walk 1-3 miles. He uses a cane intermittent, but frequent. On physical examination, Range of motion was flexion to 130 degrees, extension 0 degrees. No evidence of pain following repetitive motion and no additional limitation of ROM after 3 repetitions. No ankylosis. ROM not limited by pain, weakness, fatigue, incoordination, or lack of endurance with 3 repetitions of motion or flares. The effects of the condition on usual daily activities is moderate for chores, shopping, exercise, sports and recreation. At the December 2013 VA examination the Veteran reported that his arthritis has worsened and is now pending a total left knee replacement. He did not report flare ups. On examination, ROM was flexion 0 to 120, with pain beginning at 100 degrees. Extension 0 degrees with no objective evidence of painful motion. No additional limitation of ROM was noted after repetitive-use testing. The Veteran functional loss and functional impairment noted was less movement than normal, pain on movement, and interference with sitting, standing and weight-bearing. Tenderness on palpitation was also noted. Muscle strength on flexion and extension was normal. All joint stability tests were normal. The Veteran uses a cane constantly. The examiner remarked that the Veteran does not currently experience flare ups in the knee but has chronic pain. Therefore, no change would be expected. All joints, including healthy joints, can lead to fatigue with repetitive use that would force an individual to discontinue the activity until rested. December 2014 X-rays for left knee shows chronic severe complete loss of medial compartment joint space with adjacent degenerative changes. Chronic 1 cm medial subluxation of distal femur relative to tibia. Possible mild degenerative disease of the patella femoral compartment. No acute fracture. A February 2015 medical treatment note indicates that the Veteran reported knee pain 8-9/10 at its pain is worse in the mornings and in the afternoon, after activity. He points to his pain being in the lateral and front aspect of his knee and under his patella. His pain is a constant deep dull and achy pain with sharp pains depending on his activity. The Veteran is schedule for left TKA in March 2015. The Veteran's left knee traumatic arthritis disability is rated at 10 percent under DC 5260 -5010 for the period before March 16. 2015. The Board finds that the criteria for a rating in excess of 10 percent have not been met or more nearly approximated. At no time during the appeal period was his left knee flexion limited to 60 degrees, or his left knee extension limited to 5 degrees. The Board has also considered whether a separate or increased rating may be assigned under other diagnostic codes but finds that there is no competent medical evidence to assign evaluations in excess of the rating already assigned for the period of appeal prior to March 2015. Specifically, in the VA examinations and treatment records, there is no evidence of ankylosis, recurrent subluxation, dislocated or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum that would support a separate or increased evaluation under the criteria set forth in Diagnostic Codes 5256 (ankylosis), 5259 (removal of semilunar cartilage), 5262 (malunion or nonunion of the tibia and fibula), and 5263 (genu recurvatum). As for the Veteran's left knee valgus laxity, he does not qualify for an evaluation in excess of 10 percent prior to March 16, 2015 because the record does not show moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Joint stability tests were normal at the December 2013 and June 2015 VA examinations, and the record does not otherwise show that there was instability during this period. The preponderance of the evidence is against the award of a disability rating greater than 10 percent for traumatic arthritis, left knee, or an evaluation in excess of 10 percent for left knee valgus laxity at any time during the appeal period before March 16, 2015. As such, the benefit of the doubt doctrine is inapplicable, and the claims must otherwise be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). From March 16, 2015 The Veteran asserts that his left total knee arthroplasty warrants a rating in excess of 30 percent prior to September 23, 2020. The Veteran's left total knee arthroplasty is rated under Diagnostic Code 5055. At the June 2015 VA examination report, the examiner noted that the knee arthroplasty has corrected the left knee valgus laxity. The Veteran reported that an active day causes much pain around the kneecap area. He reported flare ups, knee area hurts at night. When swollen or in pain, it is very hard to stay on his feet. On examination, left knee ROM was flexion to 120 degrees, extension to 0. Pain was noted at examination on flexion and extension, causing functional loss. Functional loss was described as "moderately increased time required to complete, as well as ability to perform only occasionally, certain occupational tasks such as climbing, stooping, kneeling and crouching as well as decreased standing and ambulation potential secondary to pain." There was no evidence of pain with weight-bearing. No evidence of localized tenderness or pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss after 3 repetitions. The Veteran was not examined immediately after repeated use over time. Pain significantly limited functional ability with repeated use over a period of time. The examiner noted he was "unable to provide degree of additional ROM loss as the examinee does not indicate that his flare ups are always of the same intensity. This would suggest flare ups range from a mild to severe magnitude with a corresponding difference in additional loss of ROM. Theoretically a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever. Furthermore, the claimant does not indicate a specific numerical loss of range of motion either when discussing the anatomical regions in question." The Veteran was not examined during a flare up, however, the examiner noted that the Veteran reported daily flare ups, moderate to severe that lasts from hours to all day. Pain significantly limit functional ability with flare ups. The examiner was not able to describe in terms of range of motion and provided the same reasonings as above. Additional contributory factors of the left knee disability are less movement than normal, disturbance of locomotion and interference with standing. Muscle strength is normal. No ankylosis. No recurrent subluxation. No instability. No recurrent effusion. Joint stability testing was performed, and it was normal. No meniscus condition was noted. The examiner noted the residuals of total left knee joint replacement as intermediate degrees of residual weakness, pain or limitation of motion. VA treatment records from April 2015 show the Veteran was using a cane, his pain was 1 at rest and 3 with walking. The examiner noted mild swelling, anterior wound scar, normal alignment active/passive motion 5 to 100 degrees, varus stress opens <5 degrees, stable to anterior/posterior stress df/pf intact. The examiner further indicated that the Veteran is doing well and is happy with his results. In June 2016, he reported that left knee is still bothering him, and in December 2016, he complained of bilateral knee pain 8/10, triggered from prolonged walking. Private treatment records from September 2017 shows the Veteran ROM for left knee was flexion to 135 degrees, extension 0 degrees. The examiner noted alignment 5 degrees varus, no effusion. Pain with valgus stress examination and varus stress examination. No instability. At the June 2018 VA examination, the Veteran reported that since he is better able to walk after knee replacements, but he is unable to kneel, run, climb ladders and has pain with stair climbing. Since knee replacement veteran has not fallen, he has gained greater stability with the knees, swelling and popping of the knees has stopped. Veteran continues to complain of pain in bilateral knees but says it has decreased significantly since surgery. Initial ROM of left knee was flexion to 120 degrees, extension to 0 degrees. Pain noted on extension and causes functional loss. There is pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No crepitus. The Veteran able to perform repetitive use testing with no additional functional loss. No additional factors contributing to disability. Normal muscle strength. No ankylosis. No recurrent subluxation, lateral instability, or recurrent effusion. No instability. The examiner noted residuals of total knee joint replacement, left knee, as intermediate degrees of residual weakness, pain or limitation of motion. There is no evidence of pain on passive range of motion testing. The examiner remarked that there is no evidence of pain when the joint is used in non-weight bearing. Veteran has had knee replacements in bilateral joints. Range of motion testing was completed bilaterally. VA treatment records from June 2019 shows the Veteran reported continuous knee pain. At the September 2020 VA examination report, the examiner noted that the Veteran's knee condition has progressed. Symptoms of stiffness, decreased range of motion, and constant ache to bilateral knees were noted. The Veteran reported flare ups at least 3 to 4 times per week and described functional loss as unable to stand for long periods of time, "I need to sit down and rest." On examination, the left knee ROM was flexion to 125, extension to 0. Pain noted on flexion and extension but does not result in functional loss. There is objective evidence of localized tenderness or pain on palpation of the left knee of mild severity due to left knee tenderness due to total knee arthroplasty with scar. There is evidence of pain with weight bearing. No crepitus. Veteran was able to perform repetitive-use testing without additional loss of function. Pain significantly limit functional ability with repeated use over a period of time. In terms of ROM flexion to 125 degrees and extension to 0 degrees. Additional contributing factors of left knee disability are weakened movement, disturbance of locomotion, interference with sitting, interference with standing, weak movement, pain with walking, standing, and sitting. No ankylosis, no instability. The Veteran uses a brace regularly and cane and walker, occasionally. There is pain in non-weight bearing. In January 2021 an Addendum report was obtained as the September 2020 examiner did not complete the corresponding section of the knee DBQ for VA to properly evaluate the left and left knees, status post total knee arthroplasty. The examiner noted for the left knee total knee arthroplasty, chronic residuals consisting of severe painful motion or weakness. Scar, chronic pain, mild tenderness, stiffness, and decreased ROM. Prior to September 23, 2020, the record shows intermediate degrees of residual weakness, pain or limitation of motion and does not show evidence of chronic residuals consisting of severe painful motion or weakness. Thus, the Board finds a rating in excess of 30 percent for total left knee arthroplasty is not more nearly approximated under Diagnostic Code 5055. The Board also finds that an increased disability rating is not warranted under the other available knee rating criteria under Diagnostic Codes 5256, 5261 and 5262. While the Veteran reported continuous left knee pain in June 2019, there was no objective evidence of limitation of left knee extension to 30 degrees, so as to warrant a 40 percent rating under Diagnostic Code 5261. Likewise, there is no evidence in the claims file showing ankylosis or impairment of the tibia or fibula, warranting a higher rating under Diagnostic Codes 5256 and 5262. As such, prior to September 23, 2020, the Veteran is not entitled to a higher rating under DCs 5256, 5261, or 5262 respectively. For the period from September 23, 2020, the record shows chronic residuals consisting of severe painful motion or weakness. Scar, chronic pain, mild tenderness, stiffness, and decreased ROM were also noted. Thus, the Board finds a rating in excess of 60 percent for total left knee arthroplasty is not more nearly approximated under Diagnostic Code 5055. A rating in excess of 60 percent is not warranted at any point during the appeal. Diagnostic Code 5055 does not allow for a rating higher than 60 percent other than during the year following implantation of prosthesis. 38 C.F.R. § 4.71a. Thus, the Veteran is now receiving the highest schedular rating available for left knee replacement. On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Regardless, these changes did not substantively impact Diagnostic Code 5055 or Diagnostic Codes 5260 / 5261 (for limitation of flexion and extension of the knees). The Board has considered the Veteran's lay statements. The Veteran is competent to report symptoms. However, the overall evidence of record is based on review by medical examiners. This evidence is highly probative and does not show that the Veteran suffers from severe symptoms associated with his left total knee arthroplasty, prior to September 23, 2020 and a rating in excess of 60 percent under Diagnostic Code 5055 is not allowed during the period on appeal. Accordingly, the Veteran's entitlement to an increased rating above 30 percent for his left total knee arthroplasty prior to September 23, 2020 and above 60 percent, thereafter, is denied. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) for the period prior to December 3, 2013. A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran's service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. Factual Background & Analysis The Veteran is currently in receipt of a TDIU effective December 3, 2013. The issue of entitlement to TDIU was raised by the record in the December 2017 Board decision. The Veteran completed a VA Form 21-8940 in January 2021. The Veteran reported he last worked fulltime in May 2009; the Veteran did not list any employers. However, he stated that between 2009-2010 his employer laid off many employees and that with his bad back and bad knees he could not run, jump, squat, sit or stand for long periods of time. He reported having completed high school education and no additional education or training before he became too disabled to work. The Veteran's record shows examinations throughout the period at issue which provided insight as to how his service-connected disabilities would affect his employment. The March 2011 VA examiner found the Veteran's symptomatology is a negative impact on his life. The examiner noted the Veteran's bilateral knee disability has significant effect on usual occupation and his decreased mobility, problem with lifting and carrying, and pain impact on occupational activities. As previously mentioned, total ratings may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). (Continued on the next page) Prior to December 3, 2013, service connection was in effect for intervertebral disc space narrowing, L4-L5-S1 at 20 percent, status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar at 20 percent, lumbosacral strain with degenerative joint disease at 10 percent, traumatic arthritis, left knee associated with status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar at 10 percent, right knee valgus laxity associated with status post cruciate ligament reconstruction and torn medial meniscus with degenerative arthritis, right knee and residual scar at 10 percent, left knee valgus laxity associated with traumatic arthritis, left knee at 10 percent. As such, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied for that period of time. The evidence of record also reasonably establishes that prior to December 3, 2013, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. §§ 3.340, 4.16(a). Accordingly, the Board concludes that the evidence supports a finding that prior to December 3, 2013, the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment, and that the criteria for establishing entitlement to TDIU are met. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, Associate 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.