KNEE IMPAIRMENT OF

TANYA SMITH · 2026 · Case ID: A26040794

MIXED

Summary

The veteran, who served from April 1987 to June 1988, appeals the Regional Office's (RO) reduction of his disability rating for his right knee meniscal tear with limitation of motion. The RO reduced the rating from 40 percent to 10 percent, effective July 1, 2020. The veteran also appeals the denial of an increased rating for right knee instability and the denial of a rating higher than 10 percent for right knee limitation of flexion. The Board reviewed evidence including VA examination reports from August 2016 and September 2019, and the veteran's testimony from a May 2024 hearing. The August 2016 exam found significant functional impairment due to pain, weakness, and swelling, leading to the 40 percent rating for limitation of extension. The September 2019 exam noted similar functional limitations, but the examiner estimated less severe range of motion limitations, particularly for extension. The Board found the reduction improper because the evidence did not demonstrate improvement in the veteran's ability to function under ordinary conditions, restoring the 40 percent rating for limitation of extension. However, the Board denied a rating higher than 40 percent for extension, as the evidence did not support the criteria for the next higher rating. For limitation of flexion, the Board granted a separate 10 percent rating based on the September 2019 exam's finding of flexion limited to 40 degrees on flare-up. For instability, the Board denied a rating higher than 10 percent, finding the veteran's condition corresponded to slight instability based on examination findings.

Rationale

Separate rating allowed for limitation of flexion; Flexion limited to 40 degrees on flare-up; Satisfies criteria for 10% rating under DC 5260

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5260

Docket No.

200820-104879

Full Decision Text

Citation Nr: A26040794
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 200820-104879
DATE: April 30, 2026

ORDER

The rating reduction from 40 percent to 10 percent for status post right meniscal tear based on limitation of extension, effective from July 1, 2020, was not proper; restoration of the 40 percent rating for this entire period is granted.

Entitlement to a rating in excess of 40 percent for status post right meniscal tear based on limitation of extension is denied.

Entitlement to a separate rating of 10 percent, but no higher, for status post right meniscal tear based on limitation of flexion is granted.

Entitlement to a rating in excess of 10 percent based on right knee instability is denied.

FINDINGS OF FACT

1. The disability rating reduction for status post right meniscal tear based on limitation of extension from 40 percent to 10 percent was implemented in an April 2020 rating decision; the 40 percent rating had been in effect for a period of less than five years; the evidence did not make it reasonably certain that there was improvement that would be maintained under the ordinary conditions of life.

2. Even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, including after repeated use over time and on flare-up, the Veteran's status post right meniscal tear based on limitation of extension does not manifest in limitation of extension to 45 degrees.

3. When considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, including after repeated use over time and on flare-up, the Veteran's status post right meniscal tear manifests in limitation of flexion to 40 degrees on flare-up.

4. The Veteran's right knee instability has been of no greater than mild severity.

CONCLUSIONS OF LAW

1. The rating reduction from 40 percent to 10 percent for status post right meniscal tear based on limitation of extension, effective from July 1, 2020, was not proper; the criteria for restoration of the 40 percent rating for this entire period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.344, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.

2. The criteria for entitlement to a rating in excess of 40 percent for status post right meniscal tear based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.46, 4.59, 4.71a, Diagnostic Code 5261.

3. The criteria for entitlement to a separate rating of 10 percent, but no higher, for status post right meniscal tear based on limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.46, 4.59, 4.71a, Diagnostic Code 5260.

4. The criteria for entitlement to a rating in excess of 10 percent based on right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1987 to June 1988. This matter comes before the Board on appeal from September 2019 and April 2020 Regional Office (RO) rating decisions.

In relevant part, the September 2019 rating decision proposed to reduce the rating for right knee meniscal tear, limitation of motion, from 40 percent to 10 percent, and denied a rating in excess of 10 percent for right knee instability.
14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1987 to June 1988. This matter comes before the Board on appeal from September 2019 and April 2020 Regional Office (RO) rating decisions.

In relevant part, the September 2019 rating decision proposed to reduce the rating for right knee meniscal tear, limitation of motion, from 40 percent to 10 percent, and denied a rating in excess of 10 percent for right knee instability. The Veteran was notified of this decision in a letter dated September 30, 2019.

The April 2020 rating decision effectuated the reduction of the Veteran's right knee limitation of motion rating from 40 percent to 10 percent, effective July 1, 2020. The Veteran was notified of this decision in a letter dated April 24, 2020.

In August 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), on which he challenged the propriety of the reduction of his right knee disability rating based on limitation of motion. He also registered disagreement with the instability rating. He has also requested an increased rating based on limitation of motion. He requested that his case be placed on the Hearing Docket. On May 16, 2024, the Veteran testified at a hearing before a Veterans Law Judge.

The Board may only consider the evidence of record at the time of the notification letter of the appealed rating decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

For the instability claim, the Board may only consider the evidence of record at the time of the September 30, 2019, rating decision notification letter, as well as evidence submitted at the time of the May 16, 2024, Board hearing through August 14, 2024. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

For the reduction and increased rating claims for the limitation of motion rating, the Board may only consider the evidence of record at the time of the April 24, 2020, rating decision notification letter, as well as evidence submitted at the time of the May 16, 2024, Board hearing through August 14, 2024. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

Reduction and Increased Rating

Disability ratings are determined by comparing a 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. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating shall be assigned. 38 C.F.R. § 4.7. "Staged ratings," or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLu
.7. "Staged ratings," or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

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, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Joints are to be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if applicable, with the range of the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Estimates of additional functional impairment during flare-ups, if any, are also to be recorded, or an explanation with adequate rationale must be given as to why such estimates are not possible. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38?U.S.C. §?1155. Rating agencies will handle cases affected by a change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations. Additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for less than five years, reduction is warranted if the evidence shows improvement of the condition. See 38?C.F.R. §?3.344.

Importantly, 38?C.F.R. §§?4.2 and 4.10, taken together, mandate that in any rating reduction, irrespective of the time that the disability rating has been in effect, it must not only be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13?Vet. App.?342, 349 (2000) (citing Brown (Kevin) v. Brown, 5?Vet. App.?413, 421 (1993); cf. 38?C.F.R. §?4.10.

In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2?Vet. App.?277 (1992). 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).

Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263.

Separate ratings may be assigned for limited knee motion in flexion (under Diagnostic Code 5260) and in extension (under Diagnostic Code 5261), as well as for instability (under Diagnostic Code 5257). VA Gen. Counsel. Prec. 23-97 (July 1, 1997). A separate compensable rating may also be assigned for meniscal pathology under Diagnostic Code 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R.
Codes 5256 through 5263.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.

Under Diagnostic Code 5260, a 0 percent rating is assigned for leg flexion limited to 60 degrees. A 10 percent rating is assigned for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned for leg flexion limited to 15 degrees.

Diagnostic Code 5261 provides a 0 percent rating for leg extension limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent rating is warranted where extension is limited to 45 degrees.

Service connection for right knee limited motion was granted in a June 2010 rating decision. The Veteran was assigned a 10 percent rating effective January 9, 2004. This rating was assigned under Diagnostic Code 5260 (which applies to limitation of flexion) pursuant to 38 C.F.R. § 4.59, based on a finding of painful motion that did not satisfy the criteria for a compensable rating under Diagnostic Codes 5260 and 5261. In assigning this rating, the RO noted that "Deluca provisions show a loss of range of motion due to pain. Therefore, 38 CFR § 4.59 allows consideration of functional loss due to painful motion. Since you demonstrate painful motion, the 10 percent evaluation is assigned."

A September 2016 rating decision increased the disability rating for the Veteran's right knee meniscal tear with limitation of motion from 10 percent to 40 percent effective July 11, 2016. The rating was previously assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5260, and the new rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5261. The new rating was assigned based on a finding that the Veteran's limitation of extension now satisfied the criteria for entitlement to a 40 percent rating under Diagnostic Code 5261.

A September 2019 rating decision proposed decreasing the right knee limitation of motion rating from 40 percent to 10 percent.

The April 2020 rating decision effectuated the decrease from 40 percent to 10 percent effective July 1, 2020. In effectuating the reduction, the Veteran's right knee limitation of motion was reassigned to Diagnostic Code 5260. This rating was assigned based on examination findings demonstrating that the Veteran's right knee motion was no longer limited to such an extent that warranted a compensable rating. The 10 percent rating that was again assigned pursuant to 38 C.F.R. § 4.59 was based on painful motion that did not satisfy the criteria for a compensable rating.

The Veteran contends that this reduction was improper. He testified at his Board hearing that "my knee hasn't been better at all. You know, I've - I've been on pain medication to help me deal with my knee. I've been having inflammatory, icepacks, heat packs, I've got knee braces." (See Board hearing transcript, page 4.)

Turning to the evidence of record, the 40 percent rating had been assigned based on the findings of an August 2016 VA knee and lower leg conditions examination report. At that time, the Veteran reported the following current symptoms:

The veteran states the condition has worsened and states his pain is 10/10 in intensity; describes as a constant pain. He notes that he is not able to stand for long periods of time and that he has swelling as well. His leg gives out and he notes being in a lot of pain, all the time.

The Veteran reported that his knee and lower leg swell up during flare-ups.
packs, I've got knee braces." (See Board hearing transcript, page 4.)

The Veteran reported that his knee and lower leg swell up during flare-ups. He reported experiencing functional impairment in that the "Veteran sates he cannot do a lot of the things that he use[d] to do; Can't stand for long periods of time, his legs give out, and has swelling in the knee." On examination, initial range of motion was flexion to 100 degrees and extension with 0 degrees with pain on both. After three repetitions, flexion was to 80 degrees and extension was to 30 degrees. The examiner found that there was functional impact in that the "Veteran cannot stand or walk for long periods of time and lifting objects causes him to have pain."

The Veteran's disability rating was reduced based on the findings of a September 2019 VA knee and lower leg conditions examination. That report describes current symptoms of "Sharp, aching pain, and weakness with stiffness and swelling." It was noted that the Veteran treats his right knee disability with Ibuprofen as needed. The Veteran reported flare-ups of "Sharp, aching pain with stiffness that occurs 4-to-5 times per week and last approximately 2-to-48 hours." It was noted that "The flare-ups are triggered by kneeling, standing, and walking for long periods. Rest and Ibuprofen medication as well as ice applications alleviate the pain." The Veteran reported functional impairment in that "The knee pain and weakness causes claimant to have difficulty walking, running, and standing for long periods as well as climbing/descending stairs."

On examination, initial range of motion was flexion to 70 degrees and extension to 0 degrees with pain on both. After three repetitions, flexion was to 60 degrees and extension was to 0 degrees, with limitation due to pain and weakness. The examiner estimated that flexion would be to 50 degrees and extension would be to 0 degrees after repeated use over time due to pain and weakness. The examiner estimated that flexion would be to 40 degrees and extension would be to 0 degrees on flare-up due to pain and weakness. There was no ankylosis.

With respect to instability, there was no history of recurrent subluxation, lateral instability, or recurrent effusion. On stability testing, anterior, posterior, and lateral instability testing were normal. There was medial instability at a level of 1+ (0-5 millimeters). (The other instability grades, which were not selected, were 2+ (5-10 millimeters) and 3+ (10-15 millimeters).)

There was no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment.

The Veteran was noted to have a meniscal condition. The examiner described this as a meniscal tear that manifests in frequent episodes of joint locking and frequent episodes of joint pain. It does not manifest in meniscal dislocation or in frequent episodes of joint effusion. It was noted that he was not using any assistive devices (such as a brace, crutches, a cane, or a walker) as a normal mode of locomotion.

The examiner found that the Veteran's right knee disability interferes with his ability to perform occupational tasks as follows:

The knee pain and weakness causes claimant to have difficulty walking, running, and standing for long periods as well as climbing/descending stairs. These functional deficits cause him to move slower with less efficiency thereby deceases his productivity levels. He is adversely affected and unable to function at ideal capacity in any activity that requires standing beyond 30-minutes.

1. The rating reduction from 40 percent to 10 percent for status post right meniscal tear based on limitation of extension, effective from July 1, 2020, was not proper; restoration of the 40 percent rating for this entire period is granted.

The Board notes that the objective range of motion findings from the September 2019 VA examination report do not meet the criteria for a 40 percent rating, as they do not reflect that extension is limited to 30 degrees. The Board notes
escending stairs. These functional deficits cause him to move slower with less efficiency thereby deceases his productivity levels. He is adversely affected and unable to function at ideal capacity in any activity that requires standing beyond 30-minutes.

The Board notes that the objective range of motion findings from the September 2019 VA examination report do not meet the criteria for a 40 percent rating, as they do not reflect that extension is limited to 30 degrees. The Board notes, however, that this evidence does not reflect that the Veteran's right knee disability has actually improved such that there has been an improvement in his ability to function under ordinary conditions of daily life. The Board notes that the August 2016 VA examiner found that there was functional impact in that the "Veteran cannot stand or walk for long periods of time and lifting objects causes him to have pain," while the September 2019 VA examiner found there was functional impairment due to "difficulty walking, running, and standing for long periods as well as climbing/descending stairs." It was noted that "These functional deficits cause him to move slower with less efficiency thereby deceases his productivity levels. He is adversely affected and unable to function at ideal capacity in any activity that requires standing beyond 30-minutes." These examination reports reflect a similar level of impairment in his ability to function under ordinary conditions of daily life.

Based on the above, the Board finds that the reduction from 40 percent to 10 percent was improper, and the Board will therefore restore the 40 percent rating, based on limitation of extension under Diagnostic Code 5261, beginning on July 1, 2020.

2. Entitlement to a rating in excess of 40 percent for status post right meniscal tear based on limitation of extension is denied.

The Board will next consider whether entitlement to a rating in excess of 40 percent is warranted for the Veteran's right knee disability status post meniscal tear based on limitation of extension.

To receive the next higher, 50 percent rating under Diagnostic Code 5261, the Veteran's extension must be limited to 45 degrees. The evidence in this case, specifically, the September 2019 VA examination, estimates full extension, even after three repetitions, after repeated use over time, or on flare-up. There is no suggestion that the Veteran's extension approaches limitation to 45 degrees.

Caselaw requires the Board to take due consideration that the beneficial effects of medication are discounted unless such effects are otherwise contemplated in a particular diagnostic code. See Ingram v. Collins, 38 Vet. App. 130 (2025). In this case, the VA examiner, in rendering range of motion findings, noted and considered the Veteran's lay statements describing functional limitations when his pain and functional impairment are at its worst (e.g., during flare-ups, on repetitive motion, due to lack of endurance, lack of coordination, etc.). The examination report as a whole does not indicate whether the Veteran was on any pain medications at the time of the examination itself, but in any case, it is clear the examiner already provided opinions estimating range of motion findings discounting any potential ameliorating effects of medication. As such, the Board finds the examination report and the remainder of the evidentiary record form an adequate basis for a decision, resolving all reasonable doubt in the Veteran's favor.

In short, the Board finds that the criteria for entitlement to a rating in excess of 40 percent based on limitation of extension are not met.

3. Entitlement to a separate rating of 10 percent, but no higher, for status post right meniscal tear based on limitation of flexion is granted.

As noted above, separate ratings are allowed for limitation of flexion and extension. In the case at hand, the examiner estimated that the Veteran's flexion would be limited to 40 degrees on flare-up due to pain and weakness. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. The Veteran's limitation of flexion to 40 degrees on flare-up thus satisfies the criteria for a separate 10 percent rating under Diagnostic Code 5260. In the absence of limitation of flexion to 30 degrees, entitlement to a rating in excess of 10 percent is not warranted.

In making this finding, the Board has taken into consideration the ameliorative effects of medication. See Ingram v. Collins, 38 Vet. App. 130 (2025). In this case, the VA examiner, in rendering range of motion findings, noted and considered the Veteran's lay statements describing functional limitations when his pain and functional impairment are at its worst (e.g., during flare ups, on repetitive motion, due to lack of endurance, lack of coordination, etc.). The examination report as a whole does not indicate whether the Veteran was on any pain medications at the time of the examination itself, but in any case, it is clear the examiner already provided opinions estimating range of motion findings discounting any potential ameliorating effects of medication. As such, the Board finds the examination report and the remainder of the evidentiary record form an adequate basis for a decision, resolving all reasonable doubt in the Veteran's favor.

4. Entitlement to a rating in excess of 10 percent based on right knee instability is denied.

The Veteran has also requested entitlement to an increased rating based on joint instability. He reported on his August 2020 notice of disagreement that his "Knee gives out and I fall down," "I wear a knee brace for support," "I use a walking cane to help me walk down the street," and "knee gives out. Can't stand on knee for a few certain times."

The Board notes that the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5257, have changed, effective February 7, 2021. Only the criteria that were in effect prior to that date apply in this case.

Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability.

Words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.

The Board has considered the medical evidence as well as the Veteran's lay description of his right knee instability. Based on the above, the Board finds that the Veteran's instability most closely corresponds to slight instability. Specifically, the Board notes that instability testing demonstrated no anterior, posterior, or lateral instability, as well as no recurrent subluxation. The medial instability was measured at 0-5 millimeters, warranting a rating of 1+, which corresponds to the lowest gradation of instability. The Board therefore finds that the current 10 percent rating is appropriate, and a rating in excess of 10 percent under Diagnostic Code 5257 is not warranted.

The Board will next consider whether a separate or higher rating is warranted under a different diagnostic code. The Board finds that no additional knee ratings are warranted in this case. In the absence of ankylosis or the functional equivalent, entitlement to a rating under Diagnostic Code 5256 is not warranted.

Diagnostic Codes 5258 and 5259 apply to meniscal conditions. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The above evidence reflects that the Veteran does not have a dislocated semilunar cartilage or effusion into the joint. Therefore, the criteria for a separate rating under Diagnostic Code 5258 are not met. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. The evidence in this case does not indicate that the Veteran has had semilunar cartilage removed. Therefore, a separate rating under Diagnostic Code 5259 is not warranted.

In the absence of tibia and fibula impairment, the criteria for entitlement to a separate or increased rating under Diagnostic Code 5262 have not been met. In the absence of genu recurvatum, the criteria for entitlement to a separate rating under Diagnostic Code 5263 have not been met.

To summarize, throughout the period that is
Therefore, the criteria for a separate rating under Diagnostic Code 5258 are not met. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. The evidence in this case does not indicate that the Veteran has had semilunar cartilage removed. Therefore, a separate rating under Diagnostic Code 5259 is not warranted.

To summarize, throughout the period that is contemplated by this appeal, the criteria for restoration of the 40 percent rating based on limitation of extension have been met. No higher rating is warranted based on limitation of extension. In addition, the criteria for entitlement to a separate rating of 10 percent, but no higher, based on limitation of flexion have been met. Finally, the criteria for entitlement to a rating in excess of 10 percent for right knee instability have not been met.

To the extent that less than the maximum possible ratings are being assigned, the Board finds that the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and additional benefits must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Elizabeth Jalley, 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.

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