Citation Nr: 21041611 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-10 462 DATE: July 9, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent for right knee degenerative joint disease, status post medial meniscus repair, with retropatellar pain syndrome and chondromalacia, is denied. Entitlement to a separate compensable evaluation for recurrent subluxation or lateral instability of the right knee prior to December 10, 2020, is denied. Entitlement to a disability rating greater than 10 percent for right knee instability from December 10, 2020, is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's service-connected right knee degenerative joint disease, status post medial meniscus repair, with retropatellar pain syndrome and chondromalacia, has manifested in extension to zero degrees; however, it has not been manifested by limitation of extension that more nearly approximated 10 degrees or greater. 2. The record does not show that the Veteran's right knee disability was manifested by recurrent subluxation or lateral instability of the right knee prior to December 10, 2020. 3. On and after December 10, 2020, there is evidence the Veteran's service connected right knee disability has been manifested by slight medial and lateral instability; however, it has not been manifested by instability that more closely approximates moderate or severe instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a right knee, status post medial meniscus repair, with retropatellar pain syndrome and chondromalacia, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71A, Diagnostic Codes (DC) 5260 and 5261. 2. The criteria for a separate evaluation for instability of the right knee prior to December 10, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. On and after December 10, 2020, the criteria for a rating of 10 percent, but no greater, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to October 2000. This matter comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). In November 2020, the Board remanded the appeal for another VA disability examination. The case was returned to the Board in March 2021 after the AOJ substantially complied the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes after the Veteran's claim was remanded, in November 2020, the AOJ assigned a separate compensable rating of 10 percent under DC 5257 for right knee medial and lateral instability from December 10, 2020. As a Veteran may obtain multiple separate evaluations for the knee, the matter of entitlement to a greater than 10 percent rating based on instability is also part of the appeal and before the Board. 1. Entitlement to an increased disability rating in excess of 10 percent for right knee degenerative joint disease, status post medial meniscus repair, with retropatellar pain syndrome and chondromalacia. The Veteran contends the current severity of his right knee degenerative joint disease, status post medial meniscus repair, with retropatellar pain syndrome and chondromalacia (right knee disability), warrants a greater than 10 degree disability rating. See July 2013 Notice of Disagreement (NOD) at 2. The question for the Board is whether the Veteran has established entitlement to a greater than 10 percent disability rating for his service-connected right knee disability at any time during the appeal period. For the reasons discussed below, the Board concludes the evidence does not support a greater than 10 percent disability rating at this time. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36- 39 (2011). The Veteran's service-connected right knee disability is rated as 10 percent disabling under Diagnostic Code (DC) 5010-5261, Limitation of Extension of the Leg. Hyphenated diagnostic codes are used when a rating under one DC (5010) requires the use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. The hyphenated codes for the Veteran's right knee disability reflect that limited motion of the knee is the basis for the rating assigned under DC 5261. Under DC 5261, rates are based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable (0 percent) disability rating is warranted. When it is limited to 10 degrees, a 10 percent disability rating is warranted. When limitation is at 15 degrees, a 20 percent disability rating is warranted. When it is limited to 20 degrees, a 30 percent disability rating is warranted. When it is limited to 30 degrees warrants a 40 percent disability rating is warranted. And when it is limited to 45 degrees, a 50 percent disability rating is warranted. A 50 percent disability rating is the maximum schedular rating. 38 C.F.R. § 4.71a. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R.§ 3.102. In September 2012, the first VA disability examination for the Veteran's knees during the appeal period was conducted. He reported he currently observes pain at the knee, daily. He did not report observing any flare-ups. See September 2012 VA Disability Benefits Questionnaire (DBQ) at 1-2. Range of motion testing was performed on the Veteran's right and left knees. Initial testing on the right knee showed the range of motion for flexion was 0 to 105 degrees; for extension, 140 to 0 degrees. Repetitive use testing did not reveal any additional loss of motion due to pain, fatigue, weakness, lack of endurance, and incoordination. Range of motion testing on the left knee was normal. Id. at 3-5. The examiner noted the diagnosis of degenerative joint disease of the right knee. The examiner also noted the Veteran's right knee disability impacts his ability to work because it interferes with his ability to bend, lift heavy objects, and perform prolonged standing. Id. at 1, 12. As to instability, ankylosis, and meniscal conditions, the examiner did not find instability at either knee or locking at the knees. The examiner also noted the Veteran's meniscal condition is not associated with joint locking, pain, or effusion. Id. at 6-7, 9. In February 2016, the Veteran underwent another VA disability examination for his knees. He reported he continues to observe pain at his right knee. He denied having observed flare-ups. He reported his job requires him to climb in and out of trucks but has not lost time at work. See February 2016 VA DBQ at 2, 3, 5. Although the examiner performed range of motion testing on the knees, the Board has found the examination inadequate to evaluate the Veteran's disability. See November 2020 Board Remand at 3. Although the Veteran did not report flare-ups, the examiner noted ankylosis caused less movement than normal due to ankylosis. But later noted there is no ankylosis. In April 2016, the VA received a medical letter by W.S.B., MD, wherein he reports findings pertaining to the knees from an examination earlier that month. Dr. W.S.B. asserts the Veteran reported pain in both knees with greater pain in the right knee. See April 2016 statement at 1. Dr. W.S.B. also provided range of motion findings for the Veteran's right and left knees. Dr. W.S.B.'s testing on the right knee showed range of motion for flexion was 5 to 10 degrees; for extension, 100 to 105 degrees. Range of motion at the left knee was 0 to 100 degrees for flexion. Measurements for left knee extension were not provided. The examiner did not find instability at the Veteran's left or right knee. Id. at 9. He also noted the diagnoses of osteoarthritis and chondromalacia in both knees. Id. The Board notes Dr. W.S.B.'s opinion was found inadequate to decide the Veteran's claim because it did not provide pertinent information, such as consideration of flare-ups. See November 2020 Board Remand at 2. Following the Board's November 2020 Remand, two more VA disability examinations for the Veteran's knees were conducted in December 2020 and May 2021. Beginning with the December 2020 examination, the Veteran reported he currently observes stiffness. He also reported flare-ups involving pain and weakness brought on by prolonged standing, walking, and that interfere with his ability to lift heavy objects. See VA DBQ at 4. Range of motion testing was performed on the Veteran's right and left knees. Initial testing on the right knee showed range of motion for flexion was 0 to 110 degrees; for extension, it was 115 to 0 degrees. Objective evidence of pain with active motion was noted on flexion and extension. Additional loss of motion due to pain, fatigue, and weakness, was noted at repetitive use testing and consideration of repeated use over time revealed. The additional loss of motion for flexion was estimated 0 to 90 degrees; for extension, it was 90 to 0 degrees. Although the examiner did not examine the Veteran during a flare-up, he provided an opinion based on the Veteran's statements describing flare-ups: the examiner opined that pain, weakness, and fatigue results in functional loss. He also described the functional loss in terms of range of motion limitations: flexion was 0 to 90 degrees; extension was 90 to 0 degrees. Range of motion testing on the left knee was normal, without evidence pain. Id. at 5-8. The examiner noted the diagnosis of right knee degenerative joint disease, status post medical meniscus repair with retropatellar pain syndrome and chondromalacia. Id. at 3. As to instability, ankylosis, and meniscal conditions, the examiner found evidence of right knee lateral joint stability. Joint stability testing showed medial and lateral instability of 0 to 5 millimeters. Id. at 11-12. The examiner also remarked the Veteran's right knee instability is residual of his right knee degenerative joint disease. Id. at 11-12, 18. The examiner did not find ankylosis at either knee or frequent locking pain associated with a meniscus condition. Id. at 11, 14. The Board notes the AOJ has granted a separate evaluation for right knee instability in a January 2021 Statement of the Case (SOC). During the May 2021 VA disability examination, the examiner focused his evaluation on the Veteran's left knee. For example, the examiner did not conduct any range of motion testing of the Veteran's right knee. See VA DBQ at 5. The examiner did note the Veteran does not have instability of the right knee. Id. at 15, 19. A. Whether a greater than 10 percent rating for a right knee disability is warranted at any time across the appeal period. Turning to the Veteran's claim for disability compensation, the first question is whether there is sufficient evidence to find a disability rating greater than 10 percent for his right knee disability is warranted at any time across the appeal period. The Board recognizes the Veteran's lay statements describing pain and functional limitations resulting from it. The Veteran has personal knowledge of symptoms like pain, stiffness, and greater difficulty using his right knee. So, he is competent to report it. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, he has consistently reported to the VA examiners who conducted his September 2012, February 2016, and December 2020 disability examinations that he observes pain, thus the Board finds his statements credible. See September 2012 VA DBQ at 1-2; February 2016 VA DBQ at 2, 3, 5; December 2020 VA DBQ at 4. Although the Board finds the Veteran observations of pain and stiffness crediblethey are not sufficient to assign an increased disability rating under DC 5261. Under 5261, disability ratings are assigned based on evidence of limited motion. A Veteran's descriptions of symptoms may be helpful in making that determination, but the statements of record here do not. Although he has reported stiffness, it is too general to translate in to range of motion measurements for flexion or extension. Thus, his statements were assigned some, but not significant, probative weight in favor of an increased rating. The Board notes VA examiners have considered the Veteran's statements and portrayed them in terms of the range of motion limitations DC 5261 requires. The limitations portrayed by the examiners in September 2012 (extension limited to zero degrees, with no reported flare-ups) and December 2020 (extension limited to zero degrees during flare-ups) provide medical evidence that weighs heavily against finding an increased disability rating is warranted. See September 2012 VA DBQ at 3-5; December 2020 VA DBQ at 5-8. The next higher rating, a 20 percent rating, requires a limitation of extension at 15 degrees. Thus, the lay evidence of record does not establish that an increased disability rating is warranted. The December 2020 VA DBQ provides medical evidence that weighs strongly against assigning a greater than 10 percent disability rating under DC 5261. The examiner considered the lay statements found throughout the record, to include the Veteran's pain, stiffness, as well as his difficulty lifting heavy objects. See VA DBQ at 4. The examiner acknowledged and considered the Veteran's reports of flare-ups. Id. Then, the examiner quantified those effects in terms of additional range of motion limitations. Id. at 8. So, the record reflects the examiner elicited information from the Veteran regarding the disabling effects of pain during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner also noted the functional loss due to fatigue, weakness, lack of endurance, and coordination. And he quantified those effects in terms of range of motion limitations. Mitchell, 25 Vet. App. at 37-38. Since the examiner considered the Veteran's lay statements and addressed any functional loss during flare-upsthe Board finds the December 2020 VA DBQ provides a clear picture of the extent to which pain is disablingand assigned it significant probative weight. Id. at 44. Based on the examiner's description of range of motion limitations during flare-ups, the Veteran is entitled to a 10 percent disability rating under DC 5261, which is the rating currently assigned. The Board notes the September 2012 VA disability examination also weighs against assigning an increased disability rating. The range of motion limitation for extension was also zero degrees, which warrants a 10 percent rating. Although that examination does not capture the effects of the Veteran's current flare-ups, it still provides competent and credible medical evidence of his range of motion limitations during a time he had not been reporting them. And that finding was assigned some, but not significant, weight against an increased disability rating for the period before he was observing flare-ups. Because the examinations throughout the appeal period do not show a greater than 10 percent disability rating is warranted, consideration of staged ratings is also not warranted. Hart, 21 Vet. App. at 509-10. The Board recognizes Dr. W.S.B. has found the Veteran's range of motion for extension was limited to five to 10 degrees; however, the Board favors the findings in the September 2012 and December 2020 VA DBQs. It is not apparent to the Board that Dr. W.S.B. evaluated the Veteran's range of motion as thoroughly as indicated in the DBQs; therefore, it is less informative than the DBQs. Although he has provided some range of motion findings, he provided an approximate range, which puts the Board in the position of evaluating whether extension was closer to 5 degrees or 10 degrees at that time. Considering the DBQs show it has been limited to zero degrees between September 2012 and December 2020, doubt could not be resolved in favor of finding the Veteran's right knee extension closely approximated limited extension of 10 degrees or more. 38 C.F.R. § 4.3. In this case, the evidence is not approximately balanced in favor of an increased disability rating. The probative weight assigned to the September 2012 and December 2020 VA DBQs outweigh the weight assigned to the lay evidence of record. As discussed above, the Veteran's lay statements did not provide a disability picture that was sufficient to evaluate the claim under DC 5261. But the examiner, in the September 2012 and December 2020 VA DBQs did. Thus, it is the evidence of record that provides the clearest picture of the disabling effects of his right knee disability. Since the evidence weighing against an increased rating outweighs the evidence in favor of one, reasonable doubt cannot be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that a disability rating in excess of 10 percent for his right knee disability is not warranted. B. Entitlement to a greater than 10 percent disability rating under other applicable diagnostic codes. Since the Board must consider all other potentially applicable diagnostic codes, the next question is whether an analogous rating is warranted. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Since the Veteran may be assigned separate ratings under DCs 5257 (instability) 5258/5259 (dislocated/removal of semilunar cartilage), 5256 (ankylosis), the next issue is whether there is evidence that warrants a separate rating under 5258/5259 or 5256. Here, the Veteran has not complained of frequent episodes of locking at his right knee. Also, the July 2012 and December 2020 VA disability examinations noted the Veteran's meniscal condition is not associated with joint locking, pain, or effusion. See September 2012 VA DBQ at 9; December 2020 VA DBQ at 14. Thus, a separate rating under DC 5258/5259 is not warranted at this time. As to the Veteran's observations of "stiffening," the examiners who conducted the December 2020 VA disability examinations did not find the Veteran's right knee is ankylosed. See VA DBQ at 11. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLANDS) 92 (33rd ed. 2020). Thus, consideration of a separate rating under DC 5256 is not warranted. The Board also notes the range of motion measurements for flexion across the entire appeal period did not warrant an assignment of a higher disability rating greater that 10 percent or a separate compensable rating under DC 5260. See September 2012 VA DBQ at 3-5; December 2020 VA DBQ at 5-8. Since the Veteran has been diagnosed with right knee arthritis, the next issue is whether rating under that applicable code would provide a greater than 10 percent disability rating. There are two versions of DC 5010 that has been in effect since the filing of the Veteran's increased rating claim. One that was in effect before February 7, 2021, and one that became effective on and after that date. Under the version of 5010 that was in effect before February 7, 2021, the rating official is instructed to rate under 5003, degenerative arthritis. Under 5003, limited motion is rated under the appropriate diagnostic code for the specific joint, which in this case, is 5261. Thus, a rating under that 5010 would not result in a higher rating. See 38 C.F.R. § 4.71a, DC 5010. Similarly, under the version of DC 5010 that became effective on and after February 7, 2021, the rating official is instructed to rate under the appropriate code, which is 5261. Thus, neither set of criteria is more favorable to the Veteran. Also, neither set of criteria results in a greater than 10 percent disability rating. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5010). In sum, the evidence of record does not show that the severity of the Veteran's service-connected right knee disability rated under DC 5261 warrants a greater than 10 percent rating at any time during the appeal period. Hart, 21 Vet. App. at 505. Nor under any other applicable code. 38 C.F.R. § 4.7. 2. Entitlement to an increased disability rating in excess of 10 percent for right knee instability. Although the Veteran has not sought an increased rating for his service-connected right knee instability, he is presumed to be seeking the maximum possible rating. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). The questions for the Board are whether the evidence of record supports finding a separate compensable evaluation is warranted before December 10, 2020. Also, whether a greater than 10 percent disability rating for his service-connected right knee instability is warranted on and after that date. For the reasons discussed below, the Board concludes the evidence does not support a separate compensable evaluation before December 10, 2020, or a greater than 10 percent disability rating from that date. The Veteran's service-connected right knee disability is rated under DC 5257, Recurrent Subluxation or Instability and Patellar Instability. There are two versions of DC 5271 that has been in effect since the filing of the Veteran's increased rating claim. One that was in effect before February 7, 2021, and one that became effective on and after that date. Under the version of DC 5257 that was in effect before February 7, 2021, rates are based on severity of the impairment. That code provides when the impairment is slight, a 10 percent rating is warranted. When the impairment is moderate, a 20 percent rating is warranted. When the impairment is severe, a 30 percent rating is warranted. A 30 percent rating is the maximum schedular disability rating available under this code. 38 C.F.R. § 4.71a, DC 5257. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriamwebster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. Under the version of DC 5257 that became effective on and after February 7, 2021, a 10 percent rating for recurrent subluxation or instability is warranted when there is a sprain, incomplete ligament tear, complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (for example, cane(s), crutch(es), walker, or bracing for ambulation). A 20 percent rating is warranted when there is one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device. A 30 percent rating is warranted when unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 30 percent rating is the highest rating available under the code for recurrent subluxation or instability. See 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, DC 5257). The updated DC 5257 also includes ratings specifically for patellar instability. A 10 percent rating is warranted when 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 when 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 when 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 walker. A 30 percent rating is the highest rating available under that code for patellar instability. As noted above, the examiners who conducted the Veteran's September 2010 and February 2016 VA disability examinations did not find instability at the right knee. The December 10, 2020, examination is the first item of medical evidence that diagnosed lateral instability at the right knee. The examiner also noted there is no history of recurrent subluxation. Joint stability testing showed medial and lateral instability of 0 to 5 millimeters and the examiner noted the Veteran occasionally wears a brace. See December 10, 2020, VA DBQ at 11-12, 15, 18. The May 2021 VA disability examination did not include joint stability testing of the right knee. See VA DBQ at 13. A search of the record did not show the Veteran a prescription from a medical provider for a knee brace or assistance device. A. Whether the VA regulations in effect before February 7, 2021, will be used to evaluate the Veteran's increased rating claim after that date. Because this claim involves a change in the way VA regulations evaluate the Veteran's service-connected right knee instability, the first question is whether the regulations in effect before the change will be used to evaluate his disability for the period of time after the change. To answer that question, the Board must determine whether the regulations in effect before February 7, 2021, or after that date, are more favorable to the Veteran's claim. Kuzma, 341 F.3d at 1328. Here, the main difference between the two regulations is, in the old regulations (in effect before February 7, 2021), rates were evaluated according to subjective terms whereas the new version provided specific criteria that must be met before assigning the next higher rating. If the Board applied the criteria in the new regulations, a disability rating greater than 10 percent rating is not available for this claim because the Veteran has not been prescribed a brace or assistance device by a medical provider. Considering the old regulations do not rule out the availability of a greater than 10 percent rating based on whether or not the Veteran has been prescribed a brace or assistance device, they provide they afford him the opportunity to be assigned the next higher rating. In this case, the Board finds the VA regulations in effect before February 7, 2021, are more favorable to the Veteran's claim. Because the VA regulations in effect before February 7, 2021, are more favorable to the Veteran's claim, the criteria in those regulations will be used to evaluate his increased rating claim throughout the entire appeal period. Kuzma, 341 F.3d at 1328. B. Entitlement to a greater than 10 percent disability for the appeal period before December 10, 2020. Because the Veteran was assigned a disability rating at least eight years after the appeal period began, the next question is whether an increased rating is warranted for any period of time before December 10, 2020. The Board notes the Veteran's complaints of right knee pain, weakness, and difficulties engaging with prolonged standing, walking, and difficulty lifting heavy objects. See September 2012 VA DBQ at 1-2; February 2016 VA DBQ at 2; December 2020 VA DBQ at 4. But, physical examinations in September 2012 and February 2016 did not reveal any recurrent subluxation or lateral instability. Although the regulations in effect before February 7, 2021, rate according to terms that are not defined in the rating schedule, his lay observations from February 2016 through December 2020 do not provide much, if any, detail that helps the Board approximate any degree of instability. Accordingly, assignment of a separate evaluation under DC 5257 is not warranted prior to December 10, 2020. C. Entitlement to a greater than 10 percent disability for the appeal period on and after December 10, 2020. With respect to whether a greater than 10 percent disability is warranted for instability from December 10, 2020, the VA DBQ conducted on that date provides sufficient evidence to find that Veteran's right ankle disability manifested slight instability on and after that date. See VA DBQ at 11-12. As noted above, from February 2016, the record reflects a few reports of weakness and his knee giving out, but he did not provide sufficient details about the frequency, duration, and severity of those observations to provide enough information to determine if the instability was slight, moderate, or severe. Considering the examiner's testing showed instability was in a range close to normal stability and determined it to be slight, the Board concludes the medical evidence does not support finding moderate (a 20 percent rating) or severe (a 30 percent rating) instability. Id. So, the evidence supports finding his right knee is manifested by slight disability, which provides for a 10 percent rating. In this case, the evidence is not approximately balanced in favor of finding a greater than 10 percent disability rating is warranted for the Veteran's service-connected right knee instability on and after December 10, 2020. The Veteran's lay observations do not provide enough information to evaluate the severity of his instability. In contrast, the VA examiner who conducted the December 2020 VA disability examination provided competent evidence that shows a 10 percent rating, but no greater, is warranted for slight instability from December 10, 2020. In sum, the Board finds that the evidence does not support finding a separate compensable evaluation under DC 5257 for right knee instability before December 10, 2020, is warranted. But the Board concludes that the criteria for a 10 percent disability rating, but no greater, for instability of the right knee are met from December 10, 2020. The Board notes that this case does not raise a claim for a Total Disability Rating Based Upon Individual Unemployability (TDIU). Although the Veteran reported his right knee disability interferes with his ability to work, he has not reported it rendered him unable to work. See December 2020 VA DBQ at 4, 16. Thus, the Board will not address the merits of whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities at this time. 38 C.F.R. § 4.16(a); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.