Citation Nr: 22015085 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-07 097 DATE: March 16, 2022 ORDER Entitlement to an evaluation in excess of 40 percent for a herniated nucleus pulposus, postoperative L4-5 hemilaminectomy and discectomy, and postoperative fusion of L4-S1 (exclusive of a temporary total evaluation from July 23, 2014, to September 1, 2014), is denied. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee prior to November 1, 2019 (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011), is denied. Entitlement to an evaluation in excess of 30 percent for patellofemoral syndrome of the left knee on or after November 1, 2019, is denied. Entitlement to a separate 20 percent evaluation, but no higher, for a left knee meniscal tear is granted effective from November 1, 2019, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the right knee (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011), is denied. Entitlement to a separate 20 percent evaluation effective from November 1, 2019, but no higher, for a right knee meniscal tear is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 1, 2019, is remanded. FINDINGS OF FACT 1. The Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. He also does not have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. The Veteran's service-connected right knee disability is not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 15 degrees; lateral instability or recurrent subluxation; patellar instability; symptomatic removal of semilunar cartilage; ankylosis; impairment of the tibia and fibula; medial tibial stress syndrome or shin splints; or genu recurvatum. 3. Since November 1, 2019, the Veteran has been shown to have a left knee meniscal tear with dislocated semilunar cartilage and frequent episodes of locking, pain, and effusion into the joint. 4. Prior to November 1, 2019, the Veteran's service-connected left knee disability was not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 15 degrees; lateral instability or recurrent subluxation; patellar instability; symptomatic removal of semilunar cartilage; ankylosis; impairment of the tibia and fibula; medial tibial stress syndrome or shin splints; or genu recurvatum. 5. Since November 1, 2019, the Veteran's service-connected left knee disability has not been productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 30 degrees; lateral instability or recurrent subluxation; patellar instability; symptomatic removal of semilunar cartilage; ankylosis; impairment of the tibia and fibula; medial tibial stress syndrome or shin splints; or genu recurvatum. 6. Since November 1, 2019, the Veteran has been shown to have a right knee meniscal tear with dislocated semilunar cartilage and frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for herniated nucleus pulposus, postoperative L4-5 hemilaminectomy and discectomy, and postoperative fusion of L4-S1 (exclusive of a temporary total evaluation from July 23, 2014, to September 1, 2014) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee prior to November 1, 2019 (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011), and in excess of 30 percent on or after November 1, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5261. 3. Since November 1, 2019, the criteria for a separate 20 percent evaluation, but no higher, for the Veteran's left knee meniscal tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5258. 4. The criteria for an evaluation in excess of 10 percent for patellofemoral syndrome of the right knee (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5261. 5. Since November 1, 2019, the criteria for a separate 20 percent evaluation, but no higher, for the Veteran's right knee meniscal tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the case for further development in June 2019. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in an April 2020 rating decision, the agency of original jurisdiction (AOJ) granted a temporary total evaluation for a laminectomy, effective from July 23, 2014, and a 40 percent evaluation, effective from September 1, 2014, for the Veteran's low back disability. The AOJ also assigned separate temporary total evaluations for left and right knee arthroscopic surgeries, effective from September 8, 2011, and 10 percent evaluations, effective from November 1, 2011. The AOJ also increased the evaluation for the Veteran's left knee disability to 30 percent, effective from November 1, 2019. Excluding the periods of temporary total evaluations, the evaluations assigned are less than the maximum award allowed under VA law and regulations; therefore, the claims for increased ratings for the service-connected low back, left knee, and right knee disabilities remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, in the April 2020 rating decision, the AOJ granted entitlement to TDIU, effective from November 1, 2019. However, the issue of entitlement to TDIU remains pending for the time period prior to November 1, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In June 2020, the Board again remanded the case to the AOJ for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis In the June 2019 remand, the Board directed the AOJ to request that the Veteran provide the names and addresses of any and all health care providers who have provided him treatment for his low back and knees. The Board noted that a specific request should be made for outstanding private treatment records from the private facilities and practices listed in a June 2011 notification letter addressed to the Veteran. Thereafter, in August 2019, the Veteran submitted authorization forms for the release of private treatment records. The AOJ subsequently requested the private treatment records with mailed copies of the release forms signed by the Veteran. However, in an October 2019 response, the private hospital indicated that the release form included with the records request was for another facility. Although the AOJ attempted to contact a private hospital via phone calls and faxes in October 2019, there was no indication that any further efforts were made to obtain the Veteran's private records from these hospitals. Therefore, in June 2020, the Board remanded the case again to request authorization to obtain records from those facilities. In September 2020 and October 2020, the AOJ obtained the private treatment records and associated them with the claims file. Thus, The Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran and his representative have not raised any other issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 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 disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including some of the diagnostic codes for rating back and knee disabilities, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5010 stated that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the regulations in effect from February 7, 2021, Diagnostic Code 5003 now only applies to degenerative arthritis, other than posttraumatic. Otherwise, Diagnostic Code 5003 remains the same under the revised regulations. Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Lumbar Spine The Veteran is currently assigned a 40 percent evaluation for his service-connected herniated nucleus pulposus, postoperative L4-5 hemilaminectomy and discectomy, and postoperative fusion of L4-S1 (exclusive of a temporary total evaluation from July 23, 2014, to September 1, 2014), pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent evaluation is contemplated for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5243 for IVDS is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than IVDS. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 40 percent for his service-connected lumbar spine disability. Initially, the Board finds that, under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's lumbar spine disability does not warrant a rating in excess of 40 percent. Specifically, he has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. During a February 2011 VA examination, the Veteran demonstrated forward flexion to 35 degrees, and he had forward flexion to 70 degrees during a December 2015 VA examination. A November 2019 VA examination also found him to have forward flexion to 20 degrees. Moreover, based on the range of motion findings, the record shows that the Veteran's thoracolumbar spine is not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In fact, the December 2015 and November 2019 VA examiners specifically stated that there was no ankylosis of the spine. Therefore, the Veteran has not been shown to have met the criteria for an evaluation in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. In addition, there is no indication that the Veteran has incapacitating episodes. with a total duration of at least 6 weeks during a 12-month period. As noted above, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Although the December 2015 VA examiner found that the Veteran did not have IVDS of the thoracolumbar spine, the November 2019 VA examiner noted that he did have IVDS of the thoracolumbar spine. During the February 2011 VA examination, the Veteran reported that he was prescribed bed rest by a private physician for an incapacitating episode in October 2010 for 14 days. In addition, during the November 2019 VA examination, the Veteran reported that he would be "stuck in bed" due to severe pain in his back and knees for approximately seven to ten days per year. However, there are no treatment records indicating that the Veteran was prescribed bed rest by any physician for his low back disability. The November 2019 VA examiner also reported that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As such, to the extent these criteria are for application, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board further finds that a separate disability rating is not warranted at any time during the appeal period because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability, neurogenic bladder, and radiculopathy of the lower extremities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran is already in receipt of separate disability ratings for a neurogenic bladder and radiculopathy of the right and left lower extremities associated with his lumbar spine disability, and there is no other separate neurological disability shown by the evidence of record. In fact, the February 2011 VA examiner stated that the Veteran's IVDS did not cause any bowel dysfunction, bladder dysfunction, or erectile dysfunction. The December 2015 VA examiner also found that he does not have any other neurologic abnormalities or findings related to his thoracolumbar spine disorder, such as bowel or bladder problems/pathologic reflexes. The November 2019 VA examiner did note that the Veteran had other neurologic abnormalities or findings related to his thoracolumbar spine disorder, but only noted a neurogenic bladder, which is already service-connected. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of the assigned 40 percent evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 40 percent rating, and no higher. The Veteran has complained of pain throughout the appeal period. However, the effect of the pain in the Veteran's back is contemplated in the assigned 40 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The February 2011 VA examiner noted that the Veteran reported experiencing stiffness, fatigue, spasms, and decreased motion in his lower back. He also reported that he experienced loss of flexibility and range of motion during flare-ups of pain. The February 2011 VA examiner indicated that there was objective evidence of painful motion on range of motion testing of the thoracolumbar spine, but there was no additional loss of motion with repetitive motion. The February 2011 VA examiner further stated that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The December 2015 VA examiner also stated that pain was noted on examination, but found that it did not result in or cause functional loss. The December 2015 VA examiner further noted that there was no additional loss of function or range of motion after repetitive use testing. In addition, the December 2015 VA examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. The November 2019 VA examiner noted that the Veteran had limitation in bending and twisting and that pain on examination caused functional loss; however, he also found that there was no additional loss of function or range of motion after repetitive use testing. The November 2019 VA examiner further noted that no further limitation of motion was anticipated after repeated use over a period of time or during flare-ups, only increased symptoms of pain, fatigability, etc. Thus, even taking into account the Veteran's reports, the evidence does not show that he more nearly approximates the criteria for a higher evaluation. Indeed, he has still maintained a range of motion greater than required by the rating criteria for an increased evaluation. Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For these reasons, the Board concludes that the Veteran's lumbar spine disability does not warrant a rating in excess of 40 percent. Bilateral Knees In this case, the Veteran's service-connected patellofemoral syndrome of the left and right knees have been assigned separate 10 percent evaluations from December 15, 2010 (exclusive of separate temporary total evaluations from September 8, 2011, to November 1, 2011), and his left knee patellofemoral syndrome has been assigned a 30 percent evaluation effective from November 1, 2019, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, a 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5257 pertains to recurrent subluxation or instability. A 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Under the regulations in effect from February 7, 2021, Diagnostic Code 5257 now provides rating criteria for patellar instability and recurrent subluxation or instability. Under the criteria for patellar instability, a 10 percent rating is warranted where there is 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 assigned where there is 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 where there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) indicates that for patellar instability, the patellofemoral complex consists of the quadriceps tendon the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under the regulations in effect from February 7, 2021, under the section of Diagnostic Code 5257 pertaining to recurrent subluxation or instability, a 10 percent evaluation is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent evaluation is warranted for one of the following: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g, cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). A 20 percent rating is the maximum schedular evaluation available under Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under the regulations in effect prior to February 7, 2021, Diagnostic Code 5262 pertains to impairment of the tibia and fibula. A 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. Under the regulations in effect from February 7, 2021, under the section of Diagnostic Code 5262 pertaining to medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is warranted for MTSS or shin splints requiring treatment less than 12 consecutive months of one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment of one or both lower extremities. A 20 percent evaluation is warranted for MTSS or shin splints requiring no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of one or both lower extremities. A 30 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased ratings for his service-connected left and right knee disabilities, but he does meet the criteria for separate evaluations for left and right knee meniscal tears as of November 1, 2019. Initially, the Board finds that the Veteran is not entitled to higher evaluations for recurrent subluxation or lateral instability under the version of Diagnostic Code 5257 in effect prior to February 7, 2021, for the right or left knee. The Board also finds that the Veteran is not entitled to a separate or higher evaluation for recurrent subluxation, lateral instability, or patellar instability, under the revised version of Diagnostic Code 5257 in effect since February 7, 2021. During a February 2011 VA examination, the Veteran reported that his left knee gave way unexpectedly at times. However, the February 2011 VA examiner found no signs of instability or subluxation in the right and left knees on examination. Specifically, the February 2011 VA examiner noted that stability testing was within normal limits for the right and left knees for the anterior and posterior cruciate ligaments and medial and lateral collateral ligaments. The December 2015 VA examiner also found no instability on testing of both knees. In fact, anterior, posterior, and medial-lateral stability tests were normal, and the December 2015 VA examiner specifically reported that there was no history of right or left knee joint instability. During a November 2019 VA examination, the Veteran reported that he had instability and giving way in both knees. However, the November 2019 VA examiner again stated that stability testing was within normal limits for the right and left knees for the anterior and posterior cruciate ligaments and medial and lateral collateral ligaments. The November 2019 VA examiner also specifically stated that there was no joint instability in the right and left knees on joint stability testing. In addition, the December 2015 and November 2019 VA examiners found that the Veteran did not have recurrent subluxation in the right and left knees. As such, increased evaluations are not warranted under Diagnostic Code 5257 for the right knee for the entire appeal period or for the left knee prior to November 1, 2019. Moreover, as of November 1, 2019, the Veteran was assigned a 30 percent evaluation for his left knee disability, which is the maximum rating under Diagnostic Code 5257. In reaching this determination, the Board again notes that that the rating criteria under Diagnostic Code 5257 were recently amended; however, the revisions do not impact this case, as the Veteran does not meet the threshold of having lateral or patellar instability or subluxation. Thus, the criteria used to evaluate such impairment do not materially affect the outcome of this appeal. In addition, the Board finds that the Veteran is not entitled to separate or higher ratings under Diagnostic Code 5260 for limitation of flexion for the right or left knees. In this regard, the record does not show that the Veteran's right or left knee flexion was limited to 45 degrees or less to warrant a separate evaluation during the entire period on appeal for the right knee or either period on appeal for the left knee. In fact, during the February 2011 VA examination, the Veteran demonstrated right knee flexion to 120 degrees and left knee flexion to 110 degrees, and he had right knee flexion to 125 degrees and left knee flexion to 110 degrees during the December 2015 VA examination. The November 2019 VA examination also revealed right knee flexion to 90 degrees and left knee flexion to 75 degrees. As such, separate or increased evaluations are not warranted under Diagnostic Code 5260 for the right or left knee. The Board also finds that the Veteran is not entitled to separate or increased evaluations under Diagnostic Code 5261 for limitation of extension of his right or for left knees prior to November 1, 2019. The record does not show that extension was limited to 10 degrees or more to warrant a separate evaluation for the right or left knee prior to November 1, 2019. In fact, during February 2011 and December 2015 VA examinations, the Veteran demonstrated right and left knee extension to 0 degrees. As such, separate or increased evaluations under Diagnostic Code 5261 are not warranted for the right or left knee prior to November 1, 2019. Nevertheless, during the November 2019 VA examination, the Veteran demonstrated right knee extension to 10 degrees and left knee extension to 25 degrees. Under Diagnostic Code 5261, a 10 percent evaluation is assigned for limitation of extension to 10 degrees or more; a 30 percent evaluation is assigned for limitation of extension to 20 degrees or more. However, the Veteran is currently assigned a 10 percent disability evaluation for his right knee and a 30 percent evaluation for his left knee from November 1, 2019. The Board notes that the evidence supports these assignments of 10 and 30 percent evaluations under Diagnostic Code 5261 for limitation of extension rather than the current assignment under Diagnostic Code 5257 for instability. In fact, as discussed above, there is no objective evidence of instability or subluxation. Moreover, in the April 2020 rating decision, the AOJ noted that the 10 percent evaluations had been assigned based on painful limitation of motion and specifically granted the 30 percent evaluation for the Veteran's left knee disability based on limitation of extension, but did not change the diagnostic code despite that finding. Based on the foregoing, the Board finds that the evidence supports the assignment of a 10 percent evaluation for the right knee and a 30 percent evaluation from November 1, 2019, for the left knee more appropriately under Diagnostic Code 5261. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (assignment of a proper diagnostic code" completely dependent upon the facts of a particular case"); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (a change in a diagnostic code by a VA adjudicator should be specifically explained). In an effort to afford the Veteran the highest possible ratings, the Board has also considered whether any other rating criteria are applicable. As discussed above, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning separate or higher ratings under other diagnostic codes. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Nevertheless, the Board finds that separate or higher evaluations are not warranted for the right or left knee under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or under Diagnostic Code 5259 for the symptomatic removal of semilunar cartilage prior to November 1, 2019. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). In this regard, the February 2011 VA examiner stated that right and left knee stability tests were normal for the medial and lateral meniscus. In addition, the December 2015 VA examiner specifically noted that the Veteran did not have any meniscal conditions or surgical procedures in either knee. Thus, separate or higher evaluations cannot be granted under Diagnostic Codes 5258 or 5259 prior to November 1, 2019. However, during the November 2019 VA examination, the VA examiner noted that the Veteran had bilateral meniscus tears with current frequent right and left joint pain, locking, and effusion. Under Diagnostic Code 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Therefore, the Board finds that separate 20 percent evaluations are warranted for the right and left knees, effective from November 1, 2019, under Diagnostic Code 5258, which is the maximum evaluation for a meniscal condition. The Board has also considered whether separate or higher evaluations are warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the tibia and fibula, MTSS or shin splints, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran's right and left knees are not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the December 2015 and November 2019 VA examiners specifically reported that the Veteran had no ankylosis of the right or left knee. In addition, the December 2015 and November 2019 VA examiners noted that the Veteran did not have did not have shin splints or any other tibial and/or fibular impairments. Therefore, separate or higher evaluations are not warranted under Diagnostic Codes 5256, 5262, and 5263. In addition, the Board notes that the Veteran has been assigned separate 10 and 30 percent ratings for his right and left knee disabilities, which contemplate painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In addition, the 10 percent evaluation for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010. In reaching this determination, the Board acknowledges that the revised rating criteria under Diagnostic Code 5010 provides that post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. However, as previously discussed, separate or higher ratings are not warranted for limitation of motion, dislocation, or instability. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran's right and left knee disabilities are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain and decreased range of motion throughout the appeal period. However, the effect of the pain in the Veteran's right and left knees and his limitation of motion are already contemplated in the assigned evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations beyond the 10 and 30 percent evaluations already assigned for the right and left knees. During the February 2011 VA examination, the Veteran reported that he experienced weakness, swelling, giving way, locking, fatigability, and pain in his knees. He also indicated that he experienced flare-ups as often as four times per week. However, as noted above, joint stability testing was normal during the February 2011, December 2015, and November 2019 VA examinations. Nevertheless, during the February 2011, December 2015, and November 2019 VA examinations, the Veteran was also able to perform repetitive use testing for the right and left knee, and there was no additional limitation of motion. The February 2011 and December 2015 VA examiners also noted that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination in either knee after repetitive use testing. During the December 2015 VA examination, the Veteran reported functional loss of motion due to pain in his right and left knees; however, the December 2015 VA examiner found that, although pain was noted on examination, it did not result in or cause functional loss in either knee. Further, the November 2019 VA examiner indicated that no further limitation of motion was anticipated after repeated use of the knees or during flare-ups, but that he anticipated that the Veteran would experience increased symptoms of pain, fatigability, etc. However, the Board again notes that pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). In addition, the December 2015 and November 2019 VA examiners found that the Veteran had normal muscle strength of the right and left knees and that he had no muscle atrophy of the right or left leg. Thus, even taking into account the Veteran's reports, the evidence does not show that he more nearly approximates the criteria for higher evaluations. Indeed, he has still maintained flexion and extension greater than required by the rating criteria for an increased evaluation in the right and left knees. Accordingly, the Board concludes that separate or increased evaluations are not warranted for the Veteran's service-connected right and left knee disabilities under DeLuca. For these reasons, the Board concludes that the Veteran's right knee disability does not warrant a rating in excess of 10 percent (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011), that the Veteran's left knee disability does not warrant a rating in excess of 10 percent prior to November 1, 2019 (exclusive of a temporary total evaluation from September 8, 2011, to November 1, 2011); and that the Veteran's left knee disability does not warrant a rating in excess of 30 percent from November 1, 2019. However, the Board finds that the Veteran's right and left knee meniscal tears do warrant separate 20 percent ratings effective from November 1, 2019. Conclusion Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As previously noted, the issue of entitlement to TDIU remains on appeal for the time period prior to November 1, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to November 1, 2019, the Veteran was service-connected for a lumbar spine disability, evaluated as 40 percent disabling, exclusive of a temporary total evaluation from July 23, 2014, to September 1, 2014; left and right knee disabilities, separately evaluated as 10 percent disabling, exclusive of temporary total evaluations from September 8, 2011, to November 1, 2011; radiculopathy of the left and right lower extremities affecting the sciatic nerve, separately evaluated as 10 percent disabling; an ingrown right toenail, evaluated as noncompensable; postoperative scars of the lumbar spine and bilateral knees, evaluated as noncompensable; and a neurogenic bladder, evaluated as noncompensable. Prior to November 1, 2019, his combined evaluation was 50 percent from October 28, 2010, to December 15, 2010, and 60 percent thereafter (exclusive of temporary total evaluations from September 8, 2011, to November 1, 2011, and from July 23, 2014, to September 1, 2014). Thus, the Veteran does not meet the schedular criteria for TDIU prior to November 1, 2019. The Board is precluded from assigning an extraschedular TDIU evaluation in the first instance, but it must specifically adjudicate the issue of whether referral for AOJ consideration of such is warranted. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The record shows that the low threshold standard has been met based on the evidence in this case. See e.g., records from the Social Security Administration (SSA). Therefore, the Board finds that a remand is needed so that a referral may be made for extraschedular consideration. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should refer the case to VA's Director of Compensation (or a designee) for consideration of whether entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted at any time prior to November 1, 2019. 2. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.