Citation Nr: 0004168 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-10 695 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a July 14, 1993, RO decision that denied service connection for a low back disability. 2. Entitlement to a rating in excess of 20 percent for a status post left knee medial meniscectomy prior to December 23, 1996. 3. Entitlement to a rating in excess of 10 percent for a status post left knee medial meniscectomy after January 31, 1997. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from September 1991 to September 1992. In April 1999, the Board of Veterans' Appeals (Board) issued a decision in which it (1) determined that a 10 percent deduction for pre-service disability was not warranted with respect to the evaluation to be assigned for a service- connected status post left knee medial meniscectomy; (2) found that new and material evidence had been received to reopen a previously denied claim of service connection for a low back disability; (3) denied a claim of CUE in a July 1993 RO decision that denied service connection for a low back disability; (4) denied a rating in excess of 20 percent for left knee disability prior to December 1996; and (5) denied a rating in excess of 10 percent for left knee disability after February 1997. In October 1999, the Board issued a decision in which it determined that its April 1999 decision had been based on an incomplete record. Consequently, and in order to ensure the veteran full due process of law, the Board vacated the adverse determinations made in that decision (as to issues 3, 4, and 5, above). The Board indicated, however, that its favorable determinations (as to issues 1 and 2) were to remain in full force and effect. The case was thereafter transferred to the undersigned for de novo review of the vacated determinations. FINDINGS OF FACT 1. The veteran has made allegations of error in a July 14, 1993, RO decision that denied service connection for a low back disability. However, he has not provided reasons as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that, but for an alleged error, the result of the RO's decision would have been manifestly different. 2. Prior to December 23, 1996, the veteran's service- connected left knee disability was manifested by recurrent pain, occasional locking, and occasional effusion, swelling, and/or edema. His range of motion was no worse than five to 125 degrees, and his knee exhibited no more than "slight" subluxation and/or lateral instability. He complained of pain on use, and flare-ups of pain at night and with changes in the weather. 3. The veteran's service-connected left knee disability is not currently manifested by subluxation or lateral instability. Neither is there evidence that his disability is manifested by symptoms such as frequent locking and effusion. He continues to complain of pain in the knee, and his range of motion is from five to 125 degrees. CONCLUSIONS OF LAW 1. The claim of CUE in a July 14, 1993, RO decision that denied service connection for a low back disability is legally insufficient. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105 (1999). 2. The criteria for a rating in excess of 20 percent for a status post left knee medial meniscectomy prior to December 23, 1996, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71 (Plate II), 4.71a (Diagnostic Codes 5020, 5257-61); VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 24, 1997). 3. The criteria for a rating in excess of 10 percent for a status post left knee medial meniscectomy after January 31, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71 (Plate II), 4.71a (Diagnostic Codes 5020, 5257-61); VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 24, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. CUE In February 1993, the veteran submitted an original claim of service connection for a low back disability. He maintained that the disability was caused by "spinal anesthesia given at the time of [a] right knee operation in March 1992." Also in February 1993, the RO received the veteran's service medical records. Among other things, those records show that he presented for treatment in September 1991 with complaints of nausea, dizziness, and back pain, and was given an assessment of mild lumbar and trapezius strain; that he underwent left knee surgery on February 18, 1992; that he presented for treatment on April 6, 1992, with complaints of a two-day history of left lumbar pain after wrestling, and was given an assessment of probable lumbar strain; and that he underwent right knee surgery on April 23, 1992. In April 1993, the veteran underwent a VA examination. He reported that he had been experiencing intermittent low back discomfort for about seven months, and related his difficulties to spinal anesthesia in service. Physical examination revealed minimal tenderness over the spinal processes of L3 to S1, and X-rays demonstrated some left lumbar scoliosis, narrowing of the L5/S1 interspace, and minor narrowing of the L4/L5 interspace. The final diagnosis was that he had low back pain of unclear etiology. The examiner stated: He does have scoliosis and narrowing as previously mentioned. I do not feel that he has any disc disease. I am not sure if his spinal anesthesia could have contributed to his current low back complaints. I doubt that this is the case, however, I would refer this to an Orthopedic Surgeon for an expert opinion. On July 14, 1993, the RO entered a decision denying service connection for a low back disability. The RO determined that the veteran had a congenital scoliosis, and concluded that "[n]o responsible medical authority has established any direct proximate relationship between the claimed low back unclear etiology findings and the claim of anesthetic related impairment." The veteran was notified of the RO's decision, and his appellate rights, by a letter dated in July 1993. He submitted a notice of disagreement in February 1994, and a statement of the case was issued in March 1994. He did not thereafter submit a timely substantive appeal, however, and, as a result, the July 1993 decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. The veteran now contends that the RO committed CUE when it denied service connection for a low back disability in July 1993. He and his representative have advanced several arguments in this regard, which can be summarized as follows: 1. The RO should have undertaken further efforts to assist the veteran, pursuant to 38 C.F.R. §§ 3.103(a), 4.42, and 4.70, after receiving the report of the April 1993 examination indicating that the examiner was "not sure" if spinal anesthesia in service could have contributed to the veteran's low back complaints, and suggesting that the matter be referred to an orthopedic surgeon for an expert opinion; 2. The RO improperly concluded, without supporting medical evidence, that the scoliosis of the veteran's spine was a congenital abnormality. There was no evidence of a low back disability prior to service, and the RO failed to properly apply the presumption of soundness, as set forth in 38 C.F.R. § 3.304(b); 3. Assuming that the scoliosis of the veteran's spine is congenital, the RO should have assisted him in determining whether the condition was aggravated by service, pursuant to 38 C.F.R. § 3.306; 4. The RO should have provided reasons and bases in its decision for its implicit conclusion that any increase in disability during service was due to the natural progress of the condition; 5. The RO did not obtain and consider legible and/or complete copies of the veteran's service medical records prior to entering its decision; 6. The RO did not obtain and consider available records of the veteran's treatment at the VA Medical Center in White River Junction, Vermont, prior to entering the decision; 7. The RO's decision does not reflect that the RO considered and/or applied 38 C.F.R. §§ 3.303 and 3.310; and 8. The RO did not take adequate account of the fact that the veteran filed his claim for benefits within 12 months of his separation from service. VA rating decisions which are not timely appealed are considered final and binding in the absence of a showing of CUE. 38 C.F.R. § 3.105. To establish a valid CUE claim, a claimant must show either that the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). If a claimant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 405 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If the error alleged is not the type of error that, if true, would be CUE on its face, if the claimant is only asserting disagreement with how the RO evaluated the facts before it, if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist, or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Looking to the facts of the present case, with regard to arguments (1) and (3), the Board notes that an allegation that VA failed to fulfill the duty to assist is insufficient to state a claim of CUE. See Caffrey, 6 Vet. App. at 384. With respect to argument (8), the Board notes that a disagreement with how VA weighed facts is likewise insufficient to state a valid CUE claim. See Eddy, 9 Vet. App. at 57. As to arguments (4), (5), and (7), the Board is not persuaded that the RO committed the errors therein described. First, it does not appear that a discussion of 38 C.F.R. § 3.306 was necessary, inasmuch as the record was devoid of any medical evidence indicating that the veteran had a low back disability prior to service. Second, the record shows that a microfiche of the veteran's service medical records was received at the RO in February 1993, and that paper copies were made later that same month. The July 1993 decision specifically indicates that those records were considered, and the Board is not persuaded that the quality of the records relevant to the low back claim were so poor so as to have precluded meaningful review. Third, it appears that the RO considered the substance of 38 C.F.R. § 3.303 when it adjudicated the veteran's claim, inasmuch as it determined that there was no medical evidence establishing a relationship between the veteran's low back difficulties and anesthesia in service. Fourth, and finally, there is no indication that consideration of 38 C.F.R. § 3.310 (or its predecessors) was necessary, since the only claim propounded at the time was that the veteran's low back problems were attributable to events in service (i.e., knee surgery and administration of spinal anesthesia); no true theory of "secondary" service connection had been advanced. As to arguments (2) and (6), on the other hand, the Board tends to agree with the veteran that the RO committed error, inasmuch as the RO appears to have ascribed the veteran's low back discomfort to congenital scoliosis without supporting medical evidence, and failed to obtain and review relevant VA treatment records of which it had constructive notice. See Bell v. Derwinski, 2 Vet. App. 611 (1992). (The current record contains VA records from early 1993 that were not in the file when the RO's July 1993 decision was entered.) Nevertheless, even assuming that the RO committed error as outlined in (2) and (5) through (7), above, the Board finds that the requirements for a valid claim of CUE have not been satisfied. This is so because the veteran has not provided persuasive reasons as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that, but for an alleged error, the result of the RO's decision would have been manifestly different. It is not enough that the veteran point to errors that occurred. In order to raise a valid claim of CUE, he needs to provide specific reasons as to why those errors were outcome- determinative. See Bustos, 179 F.3d at 1381. That has not been done. In light of the foregoing, it is the Board's conclusion that the veteran has failed to reasonably raise a claim of CUE in the RO's July 1993 decision. The claim of CUE must therefore be denied. II. Increased Rating In 1995, the RO granted service connection for a status post left knee medial meniscectomy, effective from September 3, 1992. The RO determined that the condition was 10 percent disabling, but then deducted 10 percent from the veteran's rating for pre-service disability. See 38 C.F.R. § 4.22. The net result was that the condition was rated at zero percent for compensation purposes. The veteran appealed the rating assigned, contending that no deduction should have been made. Subsequently, in February 1997, the RO granted a temporary total rating for convalescence, effective from December 23, 1996, to January 31, 1997, with the previously assigned zero percent (noncompensable) rating to resume thereafter. See 38 C.F.R. § 4.30. Then, by a decision entered in August 1997, the RO found that the veteran's left knee condition had been 20 percent disabling prior to December 23, 1996. Consequently, and in light of its prior determination that a 10 percent deduction was warranted for pre-service disability, a 10 percent rating was assigned for compensation purposes, effective from September 3, 1992, to December 22, 1996. The noncompensable rating assigned for the period after January 31, 1997, was confirmed and continued, and the veteran renewed his dissatisfaction with the RO's determination. In April 1999, the Board found that a 10 percent deduction for pre-service disability was not warranted. See Introduction, supra. Two issues now remain for consideration: (1) Whether a rating in excess of 20 percent is warranted for the veteran's service-connected left knee disability prior to December 23, 1996; and (2) whether a rating in excess of 10 percent for is warranted for that disability after January 31, 1997. In the context of a claim for an increased rating, a mere allegation that the disability has worsened is sufficient to establish a well-grounded claim. See Arms v. West, 12 Vet. App. 188, 200 (1999); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). In the present case, the veteran's left knee claim is not entirely a claim for an "increased" rating. Rather, it is, at least in part, a claim for a higher "original" rating than that assigned at the time that service connection was granted. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Nevertheless, because the two types of claims are very similar, the Board finds that the veteran's allegations alone are sufficient to make his claim well grounded. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. Here, there is no indication that the veteran's service- connected left knee disability involves ankylosis, genu recurvatum, or impairment of the tibia or fibula. Rather, the record reflects that his disability has been characterized by complaints and/or manifestations relative to tenderness, pain, locking, laxity, and limitation of motion. Consequently, and because a diagnosis of synovitis was noted in December 1996, the Board finds that his disability is most appropriately rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5020 and 5257-5261. Under those diagnostic codes, a 10 percent rating is warranted for symptomatic removal of the semilunar cartilage; limitation of extension of the leg to 10 degrees (see 38 C.F.R. § 4.71, Plate II); limitation of flexion to 45 degrees; or recurrent subluxation and lateral instability deemed to be causative of "slight" disability. A 20 percent rating is warranted for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint; limitation of extension to 15 degrees; limitation of flexion to 30 degrees; and recurrent subluxation and lateral instability deemed to be causative of "moderate" disability. A 30 percent rating is warranted for limitation of extension to 20 degrees; limitation of flexion to 15 degrees; and recurrent subluxation or lateral instability deemed to be causative of "severe" disability. A 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. Separate evaluations may in some cases be assigned for non- overlapping manifestations of knee disability. See, e.g., 38 C.F.R. § 4.14; VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 24, 1997); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. VA regulations define disability of the musculoskeletal system primarily as "the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40. To that end, section 4.40 provides that: The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45. To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also to be considered. Id. § 4.45(f). See 38 C.F.R. § 4.59 ("[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In assessing the rating to be assigned, the history of the disability should be considered. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With regard to increased ratings, however, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Compare Fenderson v. West, 12 Vet. App. 119, 126 (1999) (indicating that the "present level" rule, set out in Francisco, is not applicable to original ratings). In the present case, the veteran's service medical records show that, in December 1991, he complained of left knee pain for one week, with recurrent episodes of locking, swelling, and laxity. Examination revealed pain with squatting, duckwalking, and end-range flexion, crepitus with full extension, and some degree of laxity involving the anterior cruciate and lateral collateral ligaments. Magnetic resonance imaging (MRI) revealed a horizontal tear in the medial meniscus and a small joint effusion. He had left knee surgery in February 1992, and it was noted afterward that he had a "reasonably good" range of motion, but was still having some pain. Later, in March 1992, it was noted that he had had a "good result" from surgery. In May 1992, it was noted that he was still experiencing occasional pain with extreme physical activity, but that he did not have any evident effusion or medial, lateral, or cruciate instability. When the veteran was examined for VA purposes in October 1992, he reported that he experienced chronic discomfort with climbing stairs and aggressive walking, and indicated that he could not participate in activities such as skiing, football, and softball. Examination revealed some medial joint line tenderness. The patella moved freely, there was no crepitus, and he had a negative drawer sign, with intact medial and collateral ligaments. Range of motion was zero to 140 degrees. VA treatment records, dated in January 1993, show that the veteran had left knee surgery in service. When he was examined for VA purposes in January 1993, he reported that he experienced knee pain when climbing stairs, and said that he could only walk for a duration of one-half hour. He also indicated that he did not run or hunt. Examination revealed no pain or tenderness of the lower extremities, full range of motion in the knees, with eight degrees of hyperextension, and negative valgus, varus, and drawer sign. X-rays revealed patellofemoral joint space narrowing. When the veteran was examined for VA purposes in April 1993, he complained of occasional soreness and stiffness in his knees with changes in the weather. Examination revealed no swelling, edema, erythema, or deformity. There was no crepitus on movement, and no subluxation, lateral instability, nonunion, or loose motion. Range of motion in the left knee was from zero to 135 degrees. During a hearing held at the RO in May 1995, the veteran testified that he had experienced locking of the left knee in service, and that he had had to have surgery. He indicated that he had not had any history of trauma. When the veteran was examined for VA purposes in May 1995, he complained that his knees ached with changes in temperature and humidity, and reported that his discomfort was aggravated by prolonged standing. It was noted that he had not lost any time from work. Neurological examination of the lower extremities was within normal limits. There was no asymmetrical weakness, the straight leg raising test appeared to be negative, and he had a full range of motion. There was no increase in fluid or crepitus. However, there did appear to be approximately 1+ medial and lateral laxity. A VA treatment record, dated in January 1996, shows that the veteran complained of left knee pain of two weeks duration. In February 1996, it was noted that he had recently re- injured his knee, that it was rather unstable, and that he would be considered for a brace. In March 1996, the veteran complained of knee pain, and occasional swelling and locking, and said that he did not trust the knee's stability. Examination revealed no effusion, and a range of motion from zero to 125 degrees. There was also evidence of anterior cruciate ligament insufficiency. X-rays revealed mild degenerative changes with no significant joint effusion. An MRI of the knee in May 1996 revealed a tear in the posterior horn of the medial meniscus, a small medial meniscus cyst, and a small amount of physiologic joint fluid. The anterior cruciate, posterior cruciate, medial collateral, and lateral collateral ligaments were all noted to be intact. When the veteran was examined for VA purposes in November 1996, he complained of a dull ache under his kneecap. He said that the condition was aggravated by cold and dampness, that it was more severe at night, and that it had become worse over the course of the last six months. He said that his left knee had locked on two or three occasions since 1991, but denied any swelling or redness. Examination revealed a range of motion from five to 125 degrees. Anterior drawer sign on the left was 1+ and normal, and the posterior sign was negative. The Q angle was normal, and there was no angulation of either knee. There was no weakness, fatigability, or incoordination. There was slight instability of the knee on lateral motion, and there was slight pain under the patella, both on lateral motion and on flexion and extension of the knee. X-rays were normal. The examiner indicated that the veteran's symptoms could significantly limit functional ability during a flare-up, but said that the additional loss in range of motion could not be determined because the veteran had not been seen during a flare-up. A VA treatment record, also dated in November 1996, shows that the veteran reported that his knee difficulties had been worsening over the course of the previous six weeks. He complained of intermittent locking and catching in the left knee, and pain along the medial joint line. Examination revealed no effusion or laxity, and negative Lachman's, drawer, pivot, and McMurray signs. The straight leg raising test was positive. VA treatment records, dated on December 18, 1996, show that the veteran reported for left knee surgery, but was unable to undergo surgery as scheduled because he had not complied with a pre-surgical policy requiring that he fast. While being seen by a surgeon at the VA facility, the veteran reported that he was experiencing catching and giving way, and complained of retropatellar pain with prolonged sitting. The surgeon expressed concern over these complaints, and indicated that they were typical of (but did not diagnose) chondromalacia and patellofemoral arthritis. The surgeon explained to the veteran that surgery would likely improve the symptoms of catching and joint line pain, but that strengthening and job modification would be the only way to deal with an anterior horn meniscus tear, if one were found. He was issued crutches to use until surgery. On December 23, 1996, the veteran underwent left knee surgery. Specifically, an arthroscopic partial medial meniscectomy was performed. It was noted that there had been synovial proliferation around the patella, a complex medial meniscus tear, and a cartilage injury in the medial femoral condyle. The pre- and post-operative diagnosis was recorded as patellofemoral synovitis and medial meniscus tear. It was noted that he tolerated the post-operative period well, and he was discharged with instructions to keep his left leg elevated and to use crutches for walking. A VA treatment record, dated on January 3, 1997, shows that the veteran reported a sense that the locking and catching in his left knee had been relieved. He indicated, however, that his leg was weak and that there was recurrent effusion. Gentle strengthening was recommended. During a hearing held at the RO on January 17, 1997, the veteran testified that he had been out of work since December 18, 1996. His representative argued that the service- connected left knee disorder had increased in severity to the point that surgery was required. The veteran indicated that he had been told at his January 3 VA appointment, when he had his stitches removed, that he could stop using crutches and begin physical therapy. A VA treatment record, dated on January 29, 1997, shows that the veteran responded well to left knee surgery, with good relief of symptoms, and that he could return to light work. When the veteran was examined for VA purposes in March 1997, he reported that his left knee was better in that it did not lock anymore. He indicated, however, that he still had pain under the left patella about twice a week, each time lasting about two hours. He said that the pain was relieved by medication. Examination revealed range of motion in the left knee from five to 125 degrees. There was no crepitation, locking, instability, swelling, or deformity. The examiner stated, "There is no impairment and no subluxation or lateral instability." The final diagnosis was status post arthroscopic surgery with partial medial meniscectomy, left knee, with improvement. Following a thorough review of the record in this case, the Board finds that no more than a 10 percent rating is warranted prior to December 23, 1996, under Diagnostic Code 5257. The records from May 1992 to April 1993 reflect that all drawer testing of the left knee was negative during that period, and that there was no objective evidence of subluxation, instability, and/or damaged ligaments. See Dorland's Illustrated Medical Dictionary 1673 (28th ed. 1994) (indicating that the drawer test is used to determine whether ligaments are ruptured). Subsequently, beginning in May 1995, problems with laxity, instability, and anterior cruciate ligament insufficiency were objectively noted. However, it appears that the overall disability occasioned by these difficulties was deemed to be rather limited, inasmuch as the laxity was described as being only "1+" in a May 1995 VA examination report, and the anterior drawer sign was noted to be "1+ and normal", the posterior sign negative, and the level of instability "slight" in a November 1996 examination report. Indeed, when the veteran was examined on an outpatient basis in November 1996, it was noted that there was no evidence of laxity, and that the drawer sign was negative. Consequently, the Board finds that the subluxation and/or lateral instability affecting the left knee was no more than "slightly" disabling prior to December 23, 1996. With regard to the application of Diagnostic Code 5257 after January 31, 1997, the Board finds that no more than a zero percent (noncompensable) rating is warranted. This is so because the available evidence shows that the veteran responded well to the December 1996 knee surgery, and had good relief of symptoms. When he was examined in March 1997, it was specifically noted that there was no evidence of subluxation or lateral instability. With regard to the application of Diagnostic Codes 5258 and 5259, the Board finds that no more than a 10 percent rating is warranted under those codes, whether prior to December 23, 1996, or after January 31, 1997. The veteran has persistently complained of pain in his left knee, both before and after December 1996, and his complaints of pain have on several occasions been endorsed by his medical care providers. The Board is therefore persuaded that the criteria for a 10 percent rating under Diagnostic Code 5259 have been satisfied. See 38 C.F.R. § 4.20. However, with regard to the higher, 20 percent evaluation available under Diagnostic Code 5258, the Board notes that the veteran has experienced locking and effusion of the left knee only rather infrequently. He reported in November 1996 that the knee had locked on only two or three occasions since 1991, and the records dated since his first surgery in February 1992 reflect only occasional complaints and/or findings of effusion, swelling, and/or edema. Because the rating criteria in Diagnostic Code 5258 are conjunctive (the disability must be manifested by frequent episodes of locking, pain, and effusion into the joint), and the evidence does not support a finding of frequent locking and effusion, the Board finds that the criteria for a 20 percent rating under Diagnostic Code 5258 have not been met. The Board also finds that no more than a 10 percent rating is warranted under Diagnostic Codes 5260 and 5261, whether prior to December 23, 1996, or after January 31, 1997. The available records show that the veteran has had extension of the left knee to five degrees or better, and flexion to 125 degrees or better, since the time of his initial VA examination in October 1992. That degree of limitation of motion is noncompensable under Diagnostic Codes 5260 and 5261. Nevertheless, because the record shows that he has on several occasions complained of pain on use, and flare-ups of pain at night and with changes in weather, the Board is persuaded that a 10 percent rating under Diagnostic Codes 5260 and 5261 is warranted. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds, however, that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. None of the medical evidence prior to December 23, 1996, contains information which would allow the Board to assign more than a minimum 10 percent rating for disability due to factors such as pain, weakness, excess fatigability, or incoordination. Indeed, the report of the November 1996 VA examination specifically indicates that there was no weakness, fatigability, or incoordination. Moreover, although it was then noted that the veteran's symptoms could significantly limit functional ability during a flare-up, the examiner found that the additional loss in range of motion could not be determined because the veteran had not been seen during a flare-up. In addition, with regard to the period after January 31, 1997, the Board notes that the veteran's condition was shown to be improved. Consequently, for all these reasons, the Board is persuaded that the veteran's limitation of motion is adequately compensated by a 10 percent evaluation. Thus, in summary, it is the Board's decision that, for the period prior to December 23, 1996, the veteran is entitled to no more than a 10 percent evaluation under Diagnostic Code 5257; no more than a 10 percent evaluation under Diagnostic Codes 5258-59; and no more than a 10 percent evaluation under Diagnostic Codes 5260-61. It is also the Board's decision that, for the period after January 31, 1997, he is entitled to no more than a zero percent (noncompensable) evaluation under Diagnostic Code 5257; no more than a 10 percent evaluation under Diagnostic Codes 5258-59; and no more than a 10 percent evaluation under Diagnostic Codes 5260-61. As noted previously, separate evaluations may be assigned for non-overlapping manifestations of disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, "the evaluation of the same manifestation under different diagnoses [is] to be avoided." 38 C.F.R. § 4.14. In this regard, the VA General Counsel has indicated that separate evaluations may be assigned for instability and limitation of motion under Diagnostic Codes 5257 and 5260-61. VAOPGCPREC 23-97 (July 24, 1997). See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (indicating that 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, are not applicable to ratings under Diagnostic Code 5257 because that diagnostic code is not predicated on loss in range of motion). With regard to Diagnostic Codes 5258-59 and 5260-61, however, it does not appear that separate evaluations can be awarded under those codes, because they each involve consideration of pain and limited motion, and thereby overlap with one another. See, e.g., VAOPGCPREC 9-98 (August 14, 1998) (indicating that limitation of motion is a relevant consideration under Diagnostic Code 5259, and that the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered under that code). Applying these principles to the facts of the present case, it is the Board's conclusion that the veteran is entitled to no more than a combined 20 percent evaluation for left knee disability prior to December 23, 1996 (10 percent under Diagnostic Code 5257, plus 10 percent under Diagnostic Codes 5258-59 and/or 5260-61), and no more than a combined 10 percent evaluation after January 31, 1997 (zero percent under Diagnostic Code 5257, plus 10 percent under Diagnostic Codes 5258-59 and/or 5260-61). The claims for a higher evaluation are therefore denied. ORDER The claim of CUE in a July 14, 1993, RO decision that denied service connection for a low back disability is legally insufficient; the appeal of that claim must therefore be denied. The claim of entitlement to a rating in excess of 20 percent for a status post left knee medial meniscectomy prior to December 23, 1996, is denied. The claim of entitlement to a rating in excess of 10 percent for a status post left knee medial meniscectomy after January 31, 1997, is denied. MARK F. HALSEY Member, Board of Veterans' Appeals