Citation Nr: 22018095 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-18 028 DATE: March 28, 2022 ORDER Restoration of a 40 percent rating for left knee osteoarthritis with limitation of extension is granted. From December 1, 2015, entitlement to a rating of 40 percent, but no higher, for left knee osteoarthritis with limitation of extension is granted FINDINGS OF FACT 1. The evidence of record at the time of the December 2015 rating reduction does not make it reasonably certain that any improvement to the Veteran's left knee osteoarthritis with limitation of extension will be maintained under the ordinary conditions of life. 2. From December 1, 2015, left knee osteoarthritis with limitation of extension more nearly approximates extension limited to 20 degrees and functional loss due to pain after repetitive use in time and during flare-ups. CONCLUSIONS OF LAW 1. The decision to reduce the rating for left knee osteoarthritis with limitation of extension from 40 percent to 10 percent was not proper, and restoration of a 40 percent rating is warranted. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.105, 4.7, 4.21, 4.104, 4.59, 4.71a, Diagnostic Code 5003-5261. 2. From December 1, 2015, the criteria for a 40 percent rating for left knee osteoarthritis with limitation of extension have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Code 5003-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1973 to June 1973 and from February 1977 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service connection for is also in effect for subluxation of the left knee osteoarthritis (subluxation, formerly flexion); however, an increased rating claim for this disability under Diagnostic Code 5257 is not on appeal. PROPRIETY OF RATING REDUCTION The Veteran disputes the propriety of the reduction of his left knee osteoarthritis with limitation of extension disability from 40 percent to 10 percent. Service connection and an initial rating of 40 percent was effective from September 2010. The RO received the Veteran's claim for an increased rating in August 2014. Based upon 38 C.F.R. § 3.105(e), the Board observes initially that VA has complied with the notification requirements applicable to the reduction of a disability evaluation. Specifically, a February rating decision informed the Veteran of the proposed reduction, the evidence, and reasons and bases for the proposed reduction. Moreover, a February 2015 letter informed the Veteran of his right to submit additional evidence or argument and to present such evidence or argument at a personal hearing, pursuant to 38 C.F.R. § 3.105(e), (i). The reduction, far exceeding the requisite 60-day period to allow evidence to be submitted, was adjudicated in a July 2015 decision. In the September 2015 rating decision, the RO informed the Veteran that the rating for left knee osteoarthritis with limitation of extension disability would be reduced from 40 percent to 10 percent effective from December 1, 2015. Consequently, no further notice is required. The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon a review of the entire history of the Veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The standard to employ will differ depending on whether the rating being reduced was in effect for 5 years or more. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. See Brown v. Brown, 5 Vet. App. 413 (1993). In the instant case, the Veteran received a 40 percent rating as of September 30, 2010, and it was reduced as of December 1, 2015. Therefore, such rating was in effect for more than 5 years. Pursuant to 38 C.F.R. § 3.344(a) and (b), disability ratings which have continued for long periods of time at the same level (5 years or more) may not be reduced without the following: 1) review of the entire record of examinations and the medical-industrial history to ensure that the current examination is full and complete; 2) the examination must be as full and complete as the examination upon which the original award was based; 3) ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated; 4) ratings on account of disease which become comparatively symptom free after prolonged rest will not be reduced on examinations reflecting the result of bed rest; 5) where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life; and 6) if doubt remains, the rating will be continued subject to reexamination within a specified period of time (18, 24, or 30 months). The Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for 5 or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran's disability." Brown, 5 Vet. App. 413 (referencing 38 C.F.R. §§ 4.1, 4.2, 4.13). At the time of the afore-noted reduction itself, the Veteran did have an increased rating claim for his service-connected left knee osteoarthritis with limitation of extension disability for over 5 years (from September 30, 2010, to December 1, 2015). Significantly, in a rating reduction case such as here, VA has the burden of establishing that the disability has improved, and that improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemeyer, 2 Vet. App. 281. In order for a rating reduction to be sustained, it must be shown by the weight of evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120, 123-24 (2002). The weight of evidence does not make it reasonably certain that any improvement to the Veteran's left knee osteoarthritis with limitation of extension will be maintained under the ordinary conditions of life. The RO has rated the Veteran's service-connected left knee osteoarthritis with limitation of extension under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. 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 rating, with the first Diagnostic Code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. Painful motion of a joint not otherwise compensable is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. 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 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). 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 enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38C.F.R. §4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Discussion Prior to the February 2015 rating decision, the Veteran reported for a VA left knee examination in March 2014. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The Veteran reported flare-ups consisting pain of 10/10; cramping; limited range of motion; weakness with a 50 percent decrease in function; and need to wear a brace for extended walking. The Veteran also reported that he used a cane for locomotion, constantly. The Veteran had left knee flexion to 60 degrees and extension to 45 degrees. There was pain upon extension. The Veteran was unable to perform repetitive use testing due to pain and weakness. As such, the clinician indicated that there was additional function loss in range of motion. Contributing factors included less movement that normal; weakened movement; incoordination; pain on movement; swelling; disturbance of locomotion; and interference with sitting, standing, and weight bearing. There was pain or tenderness on palpation of the joint line /associated soft tissue of the left knee. Muscle strength was 3/5active movement against gravity. The clinician indicated that the Veteran did have shin splits (medial tibial stress syndrome) and a stress fractures discerned through 2010 x-ray imaging; however, there was no evidence chronic exertional compartment syndrome, meniscal condition, and other tibial or fibular impairment. The clinician did not note ankylosis or muscle atrophy. X-ray imaging showed mild osteoarthritis. As to functional impact, the clinician noted that the Veteran worked as a firefighter, but the Veteran reported that he could not fulfill his duties because of his left knee osteoarthritis with limitation of extension. In the March 2014 rating decision, which informed the Veteran of the grant of service connection for left knee osteoarthritis with limitation of extension at 40 percent, effective from September 30, 2010, the RO indicated that the grant and rating were based upon left knee extension limited to 30-44 degrees and painful motion of the left knee. The RO referenced the VA examination and Kansas City, MO Veterans Affairs Medical Center (VAMC) records, and the Veteran's lay accounts in several VA Forms 21-4138. The Veteran's October 2014 VA outpatient active problems list included osteoarthritis. In January 2015 (less than one year after the March 2014 VA examination discussed above), the Veteran reported for another VA right knee examination to assess the severity of his service-connected left knee osteoarthritis with limitation of extension. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an evaluation. Assessing the Veteran's medical history, the clinician opined that, [T]he Veteran had a fall in 1973, fell from a light pole about 30 to 40 feet. [The] Veteran said [that] he has [an] x-ray and was told [that] nothing was wrong. [The] Veteran said [that] he had some imaging [studies] done but [the Veteran] [did] not know the result. [The] Veteran [said] [that] although he was told that nothing was wrong his [right] knee was swollen, and he started to have right knee problems [from that point]. [The] Veteran said that he never had surgery for the [right] knee. The clinician noted the Veteran's report that he could not walk or stand much. The Veteran had flexion to 90 degrees (with pain) and extension to zero degrees (with pain). The clinician indicated that the "abnormality" in range of motion was attributable to pain and body habitus. There was evidence of pain with weight bearing and mild tenderness at the lateral side of the right patella. The Veteran was capable of repetitive-use testing (of at least three repetitions) with additional loss in range of motion. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the functional ability of this right knee extension with repetitive use over time. The clinician did not provide any guidance as to these loss in terms of range of motion, other than stating that the "Veteran [said] that [range of motion] is even lesser that his basline (sic)." The clinician provided the same information as to flare-ups. Muscle strength was normal, and there was no evidence of muscle atrophy. There also was no evidence of ankylosis; however, there was evidence of crepitus. As to functional impact, the clinician indicated that the Veteran cannot stand for "a long time", walk for "long". These factors "are going to impact [the Veteran's] ability to work". In the February 2015 rating decision, which informed the Veteran of the proposed reduction from 40 percent to 10 percent for left knee osteoarthritis with limitation of extension, the RO indicated that the proposed reduction based on clinical findings limitation of extension of 10 to 14 degrees and functional loss due to painful motion. In this rating, the RO indicated review of the following: 1) an August 2014 VA Form 21-526EZ; 2) an August 2014 Kansas City, MO VAMC) records; 3) an October 2014 FDC exclusion letter; 4) an October 2012 VA Form 21-0781; 5) a November 2014 VA Form 21-0820; the Veteran's service personnel records; 6) a January 2015 VA Form 21-526EZ; 7) service treatment records; and 8) a March 2011 rating decision and all of the evidence considered therein. The February 2015 rating decision did not indicate that the January 2015 VA left knee examination was considered in the formulation of the rating. There is no affirmative evidence which discloses that where material improvement is shown, consideration was given as to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The next VA examination of the left knee occurred in January 201724 months after the January 2015 VA left knee examination that triggered the rating reduction. However, a review of the January 2017 examination report itself does not indicate that the "basis" of the examination was to resolve any doubt. Therefore, the January 2017 examination report does not contain findings pertinent to the matter on appeal (as per 38 C.F.R. § 3.344(a) and (b)), Hence, the medical evidence of record does not present a picture of a sustained improving disability but rather one with symptoms that vary in their severity over a 10-month period. Consequently, the medical evidence at the time of the reduction from 40 to 10 percent for left knee osteoarthritis with limitation of extension fails to reveal sustained improvement in the Veteran's disability, according to the criteria enunciated above and, most generally, conditions of ordinary life. Restoration of the 40 percent for left knee osteoarthritis with limitation of extension rating is granted. INCREASED RATINGS The Veteran asserts that an increased rating for service-connected left knee osteoarthritis with limitation of extension is warranted. Prior to the decision, the RO rated this disability at 10 percent from December 1, 2015, and at 30 percent from October 22, 2019. With restoration of the 40 percent rating, the Board assesses the period subsequent to December 1, 2015. For reasons discussed below, the Board finds that the weight of competent and probative lay and medical evidence supports maintaining the restored 40 percent rating from December 1, 2015. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Vis-à-vis pyramiding, the Board again notes that the Veteran is service connected separately for subluxation of the left knee osteoarthritis (subluxation, formerly flexion) under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In light of this issue not being a component of the instant appeal and Esteban, this disability is not considered herein. Evidence and Analysis On January 19, 2017. The Veteran reported for a VA left knee examination. The clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The Veteran reported that he had been fitted for a new left knee brace and had problems bending or extending. The Veteran also reported that he used a cane. The Veteran did report flare-ups, notably two-to-three times a week when this left knee disability caused aches and swelling. As to functional impact, the Veteran reported that he cannot move at all without a left knee brace. Also, the Veteran indicated that he relied upon crutches to maintain a non-weight bearing upright stance. As to everyday functions of life, the Veteran reported that he could not drive (because this left leg disability prevented bending). The Veteran reported that he relied upon his daughter for cooking, errands, cleaning, and laundry. Flexion was to 140 degrees, and extension was to zero degrees. There was no pain on weight bearing. Also, there was neither evidence of crepitus of tenderness. The Veteran was unable to perform repetitive use testing because of pain. The clinician did not provide guidance as to whether to pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the functional ability of this right knee extension with repetitive use over time. The clinician provided the selfsame findings as to flare-ups. The clinician reported that interference with standing contributed to this disability. Left knee muscle strength was 1/5palpable or visible muscle contraction, but no joint movement. There was no muscle atrophy. The clinician indicated that the Veteran did not have shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, meniscal condition, and other tibial or fibular impairment. There was no evidence of a meniscal condition. The Veteran reported that he uses both a right knee brace and a cane constantly. As to functional impact upon the performance of any occupational task, the clinician reported that the Veteran reported that he has difficulty performing anything other than light duty when he can sit to perform tasks. There was pain and guarding on passive range of motion and an antalgic gait upon non-weight bearing. A review of VA progress notes show that the Veteran sought clinical consultations for this disability. The Veteran endorsed chronic left knee pain. The Veteran also underwent courses of physical therapy (PT) to reduce pain. Clinicians did note that the Veteran used a left knee brace on a constant basis. Clinicians also reported left knee weakness, and treatment modalities of deep heat, massage, ultrasound, and electrical stimulation. In his substantive appeal (VA Form 9), which VA received in April 2017, the Veteran reported that he has needed physical therapy (PT) to control his symptoms. The Veteran also indicated that he has sustained injuries from falls which he believes were caused by this disability. The Veteran added that he experiences painful movement; "crackling" of the knee joint; frequent and painful dislocation; joint and muscle weakness; excess fatigue which limits walking; limited standing ability; and bad cramps. Pain medication has induced stomach bleeding. The Veteran reported that this disability has impacted his overall quality of life. On October 22, 2019, The Veteran reported for a VA left knee examination. The clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The Veteran reported that this disability had worsened. The Veteran indicated that he can no longer walk at all with a left knee brace. The left knee swells and becomes painful with extended use. The Veteran reported that he fell three times in the last year. The Veteran reported flare-ups two-to-three times a week. Such flare-ups last for two-to-three days. As to function loss, the Veteran reported that he cannot run and can only walk a half block. Moreover, the Veteran reported that he cannot stand for over 20 minutes; has difficulties navigating stairs; and is totally unable to kneel or squat. Left knee flexion was to 70 degrees with pain, and extension was to 20 degrees with pain. Range of motion itself did contribute to functional loss. There was moderate tenderness at the medial and lateral aspect of the knee. There was evidence of both crepitus and pain with weight bearing. The Veteran was able to perform repetitive-use testing (of at least three repetitions) with no additional loss in range of motion. The clinician reported that pain significantly limited the functional ability of this right knee extension with repetitive use over time; this translated into flexion to 50 degrees and extension to 20 degrees. The clinician made the same findings as to flare-ups. Additional factors contributing to this disability included less movement than normal; weakened movement; disturbance of locomotion; and interference with standing. Muscle strength testing yielded results of 4/5active movement against some resistance. There was no evidence of muscle atrophy or ankylosis. There was no evidence of shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, meniscal condition, other tibial or fibular impairment, genu recurvatum, or leg length discrepancy. As noted above, the Veteran used a brace and cane constantly. As to functional impact, the clinician reiterated the Veteran's reports above. There was pain on passive range of motion and non-weight bearing. The Veteran contends that his left knee osteoarthritis with limitation of extension has worsened in severity. The Veteran is certainly competent to report discernable symptom. The Board has considered this lay evidence. 38 C.F.R. § 3.159(a)(2). The Veteran has consistently endorsed pain upon movement and standing, cramping, swelling, and weakness. These accounts have been plausible and internally consistent; given this, the statements have been credible and worthy of significant probative weight. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). As of the restoration of the 40 percent rating, for a higher rating there would need to be a showing of left knee extension limited to 30 degrees. At worst, left knee extension was limited to 20 degrees upon the October 2019 examination. Such would not warrant a higher rating; however, such limitation is contemplated by a 30 percent rating under Diagnostic Code 5261. As noted throughout this decision, the Veteran's left knee osteoarthritis (subluxation, formerly flexion) is service connected and rated as a separate disability under Diagnostic Code 5257. As such, Diagnostic Code 5257 is not for application. Likewise, as this subluxation disability had been previously rated as limitation of flexion under Diagnostic Code 5261, that Diagnostic Code is not for application as such might well result in impermissible pyramiding. Indeed, the evidence makes clear that the Veteran has on-going left knee arthritis. However, as the minimum compensable rating has already been assigned. As such, Diagnostic Codes 5003 and 5010 would not result in an increased rating. No examination or treatment records found evidence of ankylosis, genu recurvatum, tibia or fibula impairment, or dislocated or symptomatic post-removal semilunar cartilage. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, or 5263 are not for application. The Board has considered whether higher ratings are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The October 2019 VA clinician reported functional loss after repetitive use and during flare-ups. However, this did not result in a loss of degrees of extension. Nevertheless, this clinician reported that pain significantly limited the functional ability of right knee extension with repetitive use over time and during flare-ups. Notably, the January 2017 VA clinician provided no guidance in this area. A lack of guidance is not equivalent to finding that pain did not significantly limit functional ability of right knee extension with repetitive use over time or during flare-ups. Therefore, providing the benefit of doubt to the Veteran, the evidence of record shows functional loss due to pain after repetitive use in time and during flare-ups. This functional loss translates into a 10 percent rating under the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. In November 2010, the Veteran applied for a total disability rating based on individual unemployability based on multiple disabilities including the left knee. He noted that he could no longer perform the duties of a fire fighter. In March 2011, the RO denied this claim, and the Veteran did not appeal. Since one year prior to the date of claim for an increased rating for the left knee, neither the Veteran nor the record raised the issue of unemployability. (continued next page) Consequently, the Board finds that the weight of competent and probative lay and medical evidence supports a 40 percent rating from December 1, 2015; however, the weight of competent and probative lay and medical evidence does not support a rating in excess of 40 percent for left knee osteoarthritis with limitation of extension from December 1, 2015. Moreover, the evidence since the date of claim for an increased rating in August 2014 continues not to show sustained improvement in the Veteran's ability to function under the ordinary conditions of life and work. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.