Citation Nr: 18148885 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 18-43 825 DATE: November 8, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for a left knee disability is denied. FINDING OF FACT The Veteran’s left knee disability has not increased in severity from a slight recurrent subluxation or lateral instability to a level of moderate or severe warranting an increased rating in excess of 10 percent. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for a left knee condition have not been met. 38 C.F.R. §4.71a; Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1999 through September 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran asserts that his left knee disability is more severely disabling than currently rated and warrant a higher rating in excess of his already-awarded 10 percent. To that end, disability ratings are determined by applying a schedule of ratings that are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). For knee impairments, a slight recurrent subluxation or lateral instability is rated at 10 percent. See DC 5257; see also 38 C.F.R. §4.71a. If moderate, a rating of 20 percent is assigned and if severe, a rating of 30 percent is assigned. See DC 5257; see also 38 C.F.R. §4.71a. The Board notes that words such as mild, 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. Turning to the most pertinent evidence of record, the Veteran was examined by a private physician and a VA examiner who both concluded that the Veteran’s left knee revealed no fracture, no subluxation or other significant bone, joint or soft tissue abnormality. See Radiology Interpretation, January 2018; see also, Compensation and Pension Examination, January 2018. More specifically, the VA examiner opined that there was no change in the Veteran’s diagnosis and that his left knee disability had resolved. See Compensation and Pension Examination, January 2018. The VA examination indicates that there is no history of a right or left subluxation or lateral instability as required under the statute to assign an increased rating for the Veteran’s left knee disability. See Compensation and Pension Examination, January 2018. There is no lay or medical evidence showing left knee instability and range of motion findings are consistent with those stated in the January 2018 VA examination report. Given the aforementioned evidence based on the conclusions that there has been no change in the Veteran’s disability from slight to moderate or severe, the Board finds that an increase in excess of 10 percent for the Veteran’s left knee disability is not warranted. The Board acknowledges the Veteran’s contention that this examination was inadequate. See Form 9, August 2018. The United States Court of Appeals for Veteran’s Claims has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why she could not do so. Although the Veteran appeared at his examination without flare ups, the Board finds that the January 2018 VA examination still adequately complies with Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported that he experiences flare ups in his left knee. See Compensation and Pension Examination, January 2018. In hearing this, the examiner properly indicated the Veteran’s own description of what happens during a flare up, to which he described that “swelling and sharp aching pain” occur. See Compensation and Pension Examination, January 2018. Regarding additional functional loss during flare ups, the Veteran indicated that he did not experience any functional loss and the examiner properly marked the box “no” to the corresponding inquiry. See Compensation and Pension Examination, January 2018. The examiner also properly indicated that they had not resorted to any speculation in assessing the Veteran’s functional ability with or without flare ups and that the examiner reached its conclusions based on the competent and credible statements from the Veteran as he described his symptomatology. See Compensation and Pension Examination, January 2018. The Board finds that the Veteran is competent to report any symptoms to the examiner that he experiences as a result of a flare up for the purposes of conducting the examination for the Veteran’s increased rating claim. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the above, the Board finds that the VA’s examination is adequate and complies with the Correia and Sharp cases. (CONTINUED ON TO NEXT PAGE) Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding that the Veteran’s service connected left knee disability should be increased in excess of 10 percent. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel