Citation Nr: 18149192 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-40 681 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is denied. Entitlement to a separate 10 percent, but no higher, rating beginning August 27, 2014 for painful limitation of extension of the left knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is denied. Entitlement to a separate 10 percent, but no higher, rating beginning August 27, 2014 for painful limitation of extension of the right knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for disabilities resulting in elevated liver enzymes and creatinine is remanded. Entitlement to service connection for partial loss of use of the left lower extremity is remanded. Entitlement to service connection for partial loss of use of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss for VA purposes. 2. The Veteran’s service-connected hypertension is not manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 3. The Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity for the entire appeal period. 4. Throughout the appeal period, the Veteran’s patellofemoral pain syndrome of the bilateral knees has been manifested by flexion at most limited to 110 degrees with pain bilaterally. 5. Prior to August 27, 2014, the Veteran’s patellofemoral pain syndrome of the bilateral knees was manifested with full extension without pain bilaterally. 6. From August 27, 2014, the Veteran’s patellofemoral pain syndrome of the bilateral knees has been manifested by extension at most limited to 10 degrees with pain bilaterally. 7. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for an initial compensable rating for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 3. The criteria for an initial rating in excess of 50 percent for the Veteran’s service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.120, 4.130, Diagnostic Code 9411. 4. The criteria for an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257, 5258, 5259, 5260. 5. From August 27, 2014, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5261. 6. The criteria for an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257, 5258, 5259, 5260. 7. From August 27, 2014, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.45, 4.7, 4.71a, Diagnostic Code 5261. 8. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 2001 to March 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and April 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (e.g., hearing loss as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The Veteran contends he is entitled to service connection for bilateral hearing loss due to in-service noise exposure. Service personnel records reflect that the Veteran’s military occupational specialty was that of a petroleum supply specialist, which has a low probability of noise exposure. Irrespective, the medical evidence of record fails to support that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A March 2009 VA examination reveals the following puretone thresholds, in decibels and Maryland CNC Test scores: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 5 10 10 5 10 96 LEFT 5 5 5 10 10 96 Based on the test results, the examiner found that the Veteran’s hearing was normal bilaterally. The test results were deemed valid for rating purposes. The objective audiometric findings reflect that the Veteran does not have a current hearing loss disability for VA purposes in either ear. A September 2014 VA examination reveals the following puretone thresholds, in decibels and Maryland CNC Test scores: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 15 15 10 10 10 100 LEFT 10 15 10 15 10 96 Based on the test results, the examiner found that the Veteran’s hearing was normal bilaterally. The test results were deemed valid for rating purposes. The objective audiometric findings reflect that the Veteran does not have a current hearing loss disability for VA purposes in either ear. There is no other competent evidence in the Veteran’s claims file reflecting hearing loss for VA purposes. Until such findings show hearing loss that meets the criteria for a disability under 38 C.F.R. § 3.385, there can be no entitlement to service connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran does not have a hearing loss disability as defined by VA regulations at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement. The Board notes that following an April 2011 private examination, Dr. P.Y. diagnosed the Veteran with 20 percent hearing loss in the right ear and 30 percent hearing loss in the left ear. Dr. P.Y. opined that the hearing loss in both ears was more likely than not related to the Veteran’s service. The testing Dr. P.Y. performed did not conform to VA standards as there is no indication Dr. P.Y. used the Maryland CNC test and puretone thresholds were not provided. Moreover, such testing was completed prior to the September 2014 VA examination, which continued to reflect that the Veteran did not have bilateral hearing loss by VA standards. Thus, the Board gives more probative weight to the March 2009 and September 2014 VA examination results. In addition, while the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the March 2009 and September 2014 VA examination results than the Veteran’s lay statements. The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for hearing loss. However, without evidence of a current hearing loss disability as defined by VA regulations, a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). As such, service connection for bilateral hearing loss is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Hypertension The Veteran generally contends he is entitled to a compensable rating for his hypertension. The Veteran’s service-connected hypertension is rated under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertension if the diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent disability rating is warranted when the diastolic pressure is predominantly 110 or more, or the systolic pressure is predominantly 200 or more. Id. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more, with moderately severe symptoms. Id. A 60 percent rating is warranted where diastolic pressure is 130 or more with severe symptoms. Id. Note 1 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Note 2 provides that VA is to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board finds that the Veteran’s hypertension most nearly approximates the criteria associated with the currently assigned noncompensable rating. The Veteran’s blood pressure readings during the appeal period have not been predominantly 100 or more for diastolic pressure or 160 or more for systolic pressure. In fact, an in-depth review of the record illustrates that the Veteran has not had a blood pressure reading at or above the threshold for a 10 percent rating during the appeal period. Blood pressure readings at VA examinations in May 2009 and August 2014 showed diastolic and systolic readings below the levels contemplated by a 10 percent rating. At the May 2009 examination, the Veteran’s blood pressure was 146/98, 146/98, and 146/98 on three separate readings. At the August 2014 VA examination specifically to evaluate the Veteran’s hypertension, the Veteran’s blood pressure readings were 137/88, 131/83, and 130/70. In addition, a review of blood pressure readings in VA treatment records illustrates the Veteran’s blood pressure has been below the diastolic pressure and systolic pressure required for a 10 percent rating throughout the entirety of the appeal period. To illustrate this throughout the appeal period, the Veteran’s blood pressure in April 2010 was 150/98, in June 2010 it was 138/98, in October 2010 it was 132/73, and in October 2011 it was 121/69. The previous readings are just samples of readings at different dates during the appeal period, but as is stated above, a detailed review of the record illustrates the Veteran has no readings at the thresholds required for a 10 percent rating. Further, the Veteran has been on medication for control of his blood pressure during the appeal period; however, such medication has not been continuous. A June 2010 VA treatment note reflects the Veteran takes Amlodipine to control his blood pressure. Subsequently, an October 2011 VA treatment note reflects the Veteran was supposed to restart Amlodipine for his hypertension daily, which indicates the Veteran had stopped taking the medication. Additionally, the August 2014 VA examination report reflects the Veteran was not taking continuous medication for his hypertension. Cf. McCarroll v. McDonald, 28 Vet. App. 267 (2016) (finding that the plain language of Diagnostic Code 7101 contemplates the effects of hypertensive medication). Even if the Board resolves doubt and finds that the evidence more nearly approximates a finding that he has been taking continuous medication for control of hypertension, the plain language of Diagnostic Code 7101 also requires a history of diastolic pressure predominantly 100 or more prior to taking medication in order to be awarded a 10 percent rating. In this regard, historically, before the Veteran began taking medication, service treatment records reflect a blood pressure reading of 136/100 and a laying down reading of 140/100 in May 2004. Another reading taken that day was 142/98. A reading taken on June 1, 2004 was 130/110. Readings taken on June 2, 2004 were 144/96, 140/94. Readings taken on June 3, 2004 were 132/92 and 118/90. Subsequent readings taken in June 2004 were 136/98, 130/90, 142/90, and 148/92. Additionally, a reading taken in July 2004 was 130/100. Subsequent readings taken the same day, however, reflect blood pressure of 130/98, 132/96, and 130/92. Readings taken the next day reflect blood pressure of 130/90, 126/88, 128/80, and 126/82. Multiple other blood pressure readings taken during the Veteran’s service also do not reflect diastolic pressures of 100 or more. Therefore, although the record reflects a history of some diastolic pressures of 100 or more, when considered in conjunction with the other multitude of diastolic pressures taken during service and after service, the preponderance of the evidence is against a finding that the Veteran had a history of “predominant” diastolic pressure over 100. Given the above, a preponderance of the evidence is against a finding that the Veteran’s hypertension more nearly approximates the criteria associated with a higher 10 percent rating under Diagnostic Code 7101. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369−70 (2017). In sum, the criteria for a compensable rating for hypertension have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. PTSD The Veteran generally contends he is entitled to a rating in excess of 50 percent for his service-connected PTSD. The Veteran’s PTSD has been assigned a 50 percent rating throughout the appeal period pursuant to the criteria of Diagnostic Code 9411, which is included under the General Rating Formula for Rating Mental Disorders. 38 C.F.R. § 4.130. Under Diagnostic Code 9411, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Turning to the evidence of record, a March 2009 VA examination reveals the Veteran was pleasant and cooperative, his speech was normal, his mood was mildly anxious, his thought content and processes were logical and goal-directed, and his memory and attention were adequate. The Veteran reported that he has problems falling asleep, he has nightmares two to three times per month, he cannot stand being around strange people as it makes him anxious, that people irritate him very easily, his concentration is off, he has hypervigilance, he has difficulties trusting people, he experiences anxiety attacks when he is around new people, and he has symptoms of depression. He had accepted a full-time job setting up events at charity shows, craft shows, and golf events and was enjoying the work. He reported having a girlfriend of six months whom he saw about once a week. Otherwise, he preferred to be by himself and indicated he did not have any close friends. He reported experiencing some episodes of road rage, but had not had any altercations with other drivers. He was not active in any groups, church, or social clubs. The examiner indicated he had moderate symptoms of PTSD and depression. Mental status examinations from June 2009 to June 2010 illustrate that the Veteran’s memory was intact, his insight and judgement were intact, he was oriented, he denied hallucinations, and he denied suicidal ideations. The Veteran underwent a private psychological evaluation in April 2011 where he was noted to be cooperative, polite, his work ethic was consistent and persistent, he was mentally fatigued, his level of attention was consistent, his affect was flat, his range of expression appeared restricted, his mood was depressed and irritable, and no speech difficulties were observed. The Veteran reported frequent nightmares, intrusive memories, flashbacks, and feelings of anxiety and depression. He reported that he had been married since 2009 and had good relationships with his family members. He indicated he did not have close social relationships with anyone other than his wife and that he preferred to spend time alone rather than with others. He indicated he generally did not trust other people. The Veteran underwent a VA examination in September 2014 for an evaluation of his PTSD. The VA examiner indicated the level of occupational and social impairment to be occupational and social impairment with reduced reliability and productivity. In regard to the Veteran’s psychiatric diagnosis, the examiner reported that the symptoms that apply to the Veteran’s diagnosis are depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. During the mental status examination, the examiner noted that the Veteran was cooperative, he had a flat affect, a depressed mood, and was oriented and alert. The Veteran reported that he has good relationships with his family members. He indicated that he had gotten a divorce after a year of marriage, but that he was currently engaged. He reported currently being contracted by the Marine Corps for work as a biologist. The Veteran reported symptoms of suspiciousness, depression, irritability, anger outbursts, social isolation, insomnia, crowd avoidance, nightmares, and flashbacks and intrusive thoughts. Further, he reported his symptoms of depression and irritability have increased. After review of the evidence of record, the Board finds that the severity of the symptoms and disability picture of the Veteran’s PTSD does not warrant a rating in excess of 50 percent. In this regard, the Veteran’s symptoms do not more nearly approximate a rating of 70 percent, as they are not of such a severity, frequency or duration to result in occupational and social impairment with deficiencies in most areas. Specifically, the most recent VA examination report reflects the Veteran’s occupational and social impairment is characterized as reduced reliability and productivity. The Board acknowledges that the September 2014 VA examiner noted the Veteran had difficulty in adapting to stressful circumstances, which is a symptom listed in the 70 percent criteria. The record does not otherwise indicate that the Veteran has difficulties adapting to stressful circumstances, including that the examination report reflects the Veteran works as biologist. Therefore, although this symptom may indicate a deficiency in the area of work, the frequency, duration, and severity of the symptom does not more nearly approximate a deficiency in most areas. The frequency, duration, and severity of the Veteran’s symptoms also do not more nearly approximate a deficiency in the area of family relations. The Veteran reported at the September 2014 examination that he has good relationships with his family members and that he was engaged. He has reported throughout the appeal period that he does not have any close friends. Therefore, the evidence reflects that the frequency, duration, and severity of his symptoms causes him to have a difficulty in establishing and maintaining work and social relationships, not an inability to do so. Further, the frequency, duration, and severity of the Veteran’s other symptoms do not more nearly approximate deficiencies in the areas of judgment, thinking, or mood. There is no evidence the Veteran has suicidal ideation, obsessional rituals that interfere with routine activities, illogical speech, near-continuous panic or depression affecting his ability to function independently, spatial disorientation, impaired impulse control, or neglect of personal appearance and hygiene. Although the Veteran has reported depression and irritability and some difficulties with concentration, the frequency, duration, and severity of these symptoms result in reduced reliability and productivity, rather than deficiencies in these areas. As such, the Veteran’s overall disability picture, including when considering the symptoms of difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances does not reflect such frequency, duration, and severity to cause his occupational and social impairment to be more reflective of deficiencies in most areas; rather his symptoms reflect that they are of the frequency, duration, and severity to cause reduced reliability and productivity. There are no other symptoms, either listed in the rating criteria or otherwise reflected in the record, throughout the appeal period of such frequency, duration, and severity that are reflective of occupational and social impairment with deficiencies in most areas. Therefore, a preponderance of the evidence is against the claim, and a rating in excess of 50 percent is denied. 3. Knees The Veteran generally contends he is entitled to increased ratings for his bilateral knee disabilities. The RO has rated the Veteran’s bilateral patellofemoral pain syndrome with separate 10 percent ratings for each knee throughout the appeal period under hyphenated Diagnostic Code 5260-5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes indicate that the Veteran’s knee disabilities are rated, by analogy, under the criteria for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is available where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Id. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee 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, and a 50 percent rating is warranted where extension is limited to 45 degrees. Id. Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under DC 5260 or 5261 and for instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a separate 20 percent rating may be assigned for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a separate 10 percent rating may be assigned for the removal of cartilage, semilunar, that is symptomatic. Id. Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require “objective” evidence, but can be satisfied with lay and other non-medical evidence. Id. at 429. Consideration of other Diagnostic Codes for rating a knee disability (5256, 5262, 5263) is inappropriate in this case as the Veteran’s bilateral knee disabilities do not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. Here, the Board will address the evidence as it relates to the Veteran’s knee disabilities prior to addressing the Veteran’s claims for an increased rating for his bilateral knee disabilities. The Veteran attended a VA examination in March 2009 where the Veteran had full range of motion without pain or any other contributing factors. There were also no additional limitations from pain, fatigue, weakness, or lack of endurance following repetitive use. Further, the Veteran had no pain or tenderness on examination, normal strength, and no instability. The Veteran reported having pain all day every day that flares with strenuous activity. The flare-ups last 30 to 45 minutes and prevent him from climbing stairs and being unable to run. He reported he is unable to squat, unable to climb more than one flight of stairs, and he is unable to stand more than one to two hours. June 2010 X-rays of the bilateral knees were unremarkable. The Veteran attended a private examination in April 2011 in part for his bilateral knees. During the examination, the Veteran had reduced flexion to 110 degrees bilaterally. The chiropractor noted that there was crepitus, grinding, and popping present as the joint moved through the range of motion. The chiropractor conducting the examination diagnosed the Veteran with degenerative joint disease of the left knee with patellofemoral syndrome and subpatellar bursitis. On the right side, he diagnosed the Veteran with degenerative joint disease with patellofemoral syndrome. The Veteran reported he has constant pain in his knees that increases with ambulation and transitioning from sitting to standing. At a December 2011 VA examination, the Veteran had full range of motion bilaterally. The examiner noted the Veteran had pain bilaterally at 140 degrees of flexion and no pain with extension. The Veteran performed repetitive use testing with no additional loss of range of motion or functional loss. The examiner noted that the Veteran had no instability bilaterally, no recurrent patellar subluxation or dislocation bilaterally, no ankylosis bilaterally, and no meniscal condition bilaterally. The X-rays were normal, and the VA examiner noted there was no diagnosis bilaterally since there was no pathology to render a diagnosis. The Veteran reported weakness, stiffness, swelling, redness, giving away, lack of endurance, locking, fatigability, deformity, tenderness, drainage, constant pain, cracking, dislocation, burning sensation, and fluid build up. Further, he reported he has trouble walking, climbing stairs, driving, running, squatting, sitting, riding vehicles, standing, and sleeping. The Veteran reported flare-ups that interfere with daily activities such as sleeping, walking, sitting, standing, climbing stairs, and squatting. The Veteran attended a final VA examination in August 2014 where he had reduced flexion in the left knee to 135 degrees with pain at 135 degrees. On the right side, the Veteran had full flexion but with pain at 135 degrees. For extension, the Veteran had full extension bilaterally. However, the Veteran had pain at 0 degrees on the right and no pain on the left. The Veteran was able to perform repetitive use testing but with additional loss of range of motion. His flexion was reduced to 130 degrees bilaterally, and his extension was reduced to 5 degrees bilaterally. In addition, the Veteran had functional loss bilaterally in the form of weakness on movement, excess fatigability, and pain on movement. The examiner noted the Veteran had no instability bilaterally, no recurrent patellar subluxation or dislocation bilaterally, and no ankylosis bilaterally. There was no X-ray evidence of patellar subluxation or arthritis. The examiner noted the Veteran had a meniscal tear in the right knee and frequent episodes of joint locking and pain bilaterally. No frequent episodes of joint effusion are noted. The examiner reported the functional impact of the Veteran’s bilateral knee disabilities is that the Veteran is unable to bear his own weight for an extended period of time and he has pain with walking and running. The examiner indicated that the degree of range of motion loss during pain on use or flare-ups was approximately 5 and 10 degrees with flexion and extension respectively. He indicated the Veteran’s condition had progressed with chronic pain and worsening fatigue. The Veteran reported at the examination that his condition has gotten worse and that his knees crack. The Veteran reported flare-ups that make it hard to walk, cause a severe limp, and cause sleep difficulties due to pain. Turning to the ratings assigned by the RO. The RO has assigned separate 10 percent ratings for each knee under hyphenated Diagnostic Code 5260-5261. A review of the October 2014 rating decision that increased the ratings for the Veteran’s bilateral knee disabilities to 10 percent each illustrates the RO awarded the ratings based on painful limitation of flexion. Following a review of the evidence addressed above, the Board concludes that the evidence most nearly approximates the currently assigned 10 percent ratings for the Veteran’s left and right knee disabilities for painful limitation of flexion under Diagnostic Code 5260. The Veteran has had no point throughout the appeal period where his flexion in his bilateral knees has been less than 45 degrees, even when considering additional factors of pain, fatigue, and weakness. Although the August 2014 examiner indicated the Veteran experienced additional loss of flexion during flare ups and on repetitive use, such additional loss was noted to be to 130 bilaterally and noted to be 5 degrees less than prior to such testing. Additionally, the April 2011 private examination reflected flexion limited to no more than 110 degrees. As such, even when considering these additional contributing factors, the evidence does not more nearly approximate flexion limited to less than 45 degrees. Therefore, a preponderance of the evidence is against a rating in excess of 10 percent based on limitation of flexion at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of extension of the bilateral knees. The Board finds that the evidence more nearly approximates an actually painful right knee joint on extension beginning August 27, 2014, as reflected by the August 27, 2014 VA examination which indicates the Veteran had objective evidence of pain with extension on the right side and pain upon repetitive motion bilaterally, with limitation of motion to 5 degrees. Although noting limitation to 5 degrees after repetitive use testing, the examiner noted later in the examination report that functional loss from flare ups and repeated use over time caused a 10-degree limitation of extension, which meets the criteria for a 10 percent rating under Diagnostic Code 5261. As such, the Board concludes that a separate 10 percent rating for an actually painful bilateral knee joint with limitation of extension pursuant to 38 C.F.R. § 4.59 is warranted beginning August 27, 2014. A rating in excess of 10 percent under Diagnostic Code 5261 is not warranted as there is no evidence in the record that illustrates the Veteran has extension limited beyond 10 degrees. In evaluating the Veteran’s increased rating claim for his bilateral knees, the Board must address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran’s statements that his knee conditions cause weakness, stiffness, swelling, redness, giving away, lack of endurance, locking, fatigability, deformity, tenderness, drainage, constant pain, cracking, dislocation, burning sensation, and fluid build up. Further, he reported his knee disabilities cause difficulties with walking, climbing stairs, driving, running, squatting, sitting, riding in vehicles, standing, transitioning from sitting to standing, and sleeping. However, even when considering the reported functional loss, the Veteran’s disability picture did not more nearly approximate flexion limited to 30 degrees, extension limited to 15 degrees, or ankylosis bilaterally. The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 for instability as the Veteran reported at the December 2011 VA examination that he has giving away in his bilateral knees. The United States Court of Appeals for Veterans Claims (Court) recently held that Diagnostic Code 5257 does not require objective evidence of instability. English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Vet. App. Nov. 1, 2018). The Board acknowledges the Veteran is competent to report experiencing such symptoms of giving way of the knees. However, the Veteran has not reported experiencing such symptoms at any other time during the appeal period, including during an April 2011 private examination of his knees and in a November 2014 statement wherein he gave a thorough description regarding his knee disabilities. Therefore, the Board finds his statements of experiencing giving way of the knee on December 2011 examination not to be credible for purposes of determining whether he is entitled to a separate rating for instability. Additionally, there is no objective evidence of instability per Diagnostic Code 5257 based on the March 2009, December 2011, and August 2014 VA examinations. The examiners determined that testing for instability and recurrent subluxation was normal and there was no evidence of patellar subluxation noted on examination. Notably, the December 2011 examiner considered the Veteran’s subjective reports of giving way, but still concluded that there was no evidence of instability or recurrent subluxation. Therefore, the Board finds that a preponderance of the evidence is against a finding that the Veteran is entitled to a separate rating for recurrent subluxation or lateral instability. The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5258 for his bilateral semilunar cartilage condition noted in the August 2014 VA examination. The Board acknowledges that at the August 2014 VA examination the Veteran had frequent episodes of joint pain and joint locking, but there is no evidence of effusion in the record or evidence that he currently has dislocated semilunar cartilage. Additionally, symptoms of joint pain are contemplated by the ratings assigned for flexion and extension. Therefore, the evidence does not more nearly approximate the criteria for a separate rating for either knee under Diagnostic Code 5258. The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage; however, there is no indication in the record that the Veteran has had surgery on either knee. Thus, a separate rating for either knee under Diagnostic Code 5259 is not supported by the record. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette, 28 Vet. App. at 369−70. In sum, the Board finds the criteria for a rating in excess of 10 percent for the Veteran’s left knee disability based on limitation of flexion have not been met during the pendency of the appeal. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee beginning August 27, 2014. The Veteran is not entitled to any further separate ratings for the left knee. With regard to the right knee, the Board finds the criteria for a rating in excess of 10 percent for the Veteran’s right knee disability based on limitation of flexion have not been met during the pendency of the appeal. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee beginning August 27, 2014. The Board is not entitled to any further separate ratings for the left knee. 4. Tinnitus The Veteran contends in his November 2014 VA Form 9, Substantive Appeal that he is entitled to a 20 percent rating for his service-connected tinnitus. The Veteran’s tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a disability resulting in elevated liver enzymes and creatinine is remanded. Following an April 2011 private examination, Dr. P.Y. opined that it is more likely than not that the Veteran’s elevated liver enzymes and elevated creatinine are directly and causally related to side effects of long term aggressive treatment with nonsteroidal anti-inflammatory drug (NSAID) use for his service-connected bilateral shoulder and knee disabilities. In addition, Dr. P.Y. stated that the Veteran should immediately be seen in specialty care to determine if there is permanent damage to his liver or kidneys. Dr. P.Y. noted that elevated liver enzymes that persist generally denote hepatic damage, and that elevated creatinine that persists generally denotes the onset of kidney failure. The medical evidence indicates the Veteran has had elevated liver enzymes since service as a July 2006 service treatment record shows the Veteran’s alanine aminotransferase (ALT) was 81. The Board notes that high liver enzymes are not a disability for VA purposes; rather, such findings are a test result. However, as there is an indication from Dr. P.Y. that the high liver and kidney levels may have resulted in a disability, a VA examination is necessary to determine if the Veteran has a liver or kidney disability manifested by high liver enzymes. 2. Entitlement to service connection for partial loss of use of the bilateral lower extremities is remanded. The Board cannot make a fully-informed decision on the issue of partial loss of use of the bilateral lower extremities because no VA examiner has opined whether the issues are related to his service-connected bilateral knee disabilities. The Board notes that Dr. P.Y. opined in April 2011 that it is more likely than not that the Veteran’s partial loss of his lower extremities is directly and causally related to his military service. In support of the opinion, Dr. P.Y. noted that the Veteran has lost 50 percent or more of the use and function of his lower extremities due to his knee conditions. However, following a December 2011 VA examination, the VA examiner opined that the Veteran does not have partial loss of use of the bilateral lower extremities. The VA examiner reasoned that the examination was quite functionally normal and the X-rays and MRI were normal. The VA examiner stated there is no diagnosis because there is no pathology to render a diagnosis. Therefore, the VA examiner did not provide a response to whether the Veteran’s partial loss of use of the bilateral lower extremities is proximately due to or the result of the the Veteran’s patellofemoral pain symdrome. However, the August 2014 VA examiner diagnosed the Veteran with bilateral patellar tendinopathy and bilateral patellofemoral syndrome. The April 2011 private opinion, the August 2014 VA examination, and the Veteran’s subjective reports reflects that the Veteran may have some degree of loss of use of his bilateral lower extremities. As such, a VA examination and opinion are necessary. 3. Entitlement to a TDIU is remanded. The Veteran has not filed an application for TDIU. However, following the April 2011 private examination, Dr. P.Y. opined that the Veteran is deemed to be unemployable in part due to his PTSD, bilateral shoulder conditions, and bilateral knee conditions with partial loss of use of the bilateral lower extremities. Therefore, the issue of entitlement to TDIU has been raised by the record and is part and parcel of the claims seeking increased ratings for PTSD and bilateral knee conditions. Therefore, the AOJ should take appropriate steps to develop and adjudicate the claim for TDIU in light of all the evidence of record. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record any outstanding VA treatment records from June 2014 onward. Additionally, with any needed assistance from the Veteran, obtain any identified outstanding private treatment records. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item (1), provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any underlying disability that results in elevated liver enzymes and/or creatinine. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should answer the following questions: A) Does the Veteran have a chronic liver or kidney disability that results in elevated liver enzymes and elevated creatinine? B) Is it at least as likely as not (50 percent or greater probability) that any diagnosed liver and/or kidney disability is related or attributable to his military service? C) Is it at least as likely as not (a 50% or greater probability) that any diagnosed liver and/or kidney disability is caused by NSAID or other medication use for his service-connected disabilities? D) Is it at least as likely as not (a 50% or greater probability) that any diagnosed liver and/or kidney disability was aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by NSAID or other medication use for his service-connected disabilities? If the Veteran’s diagnosed liver and/or kidney disability was aggravated by NSAID or other medication use for his service-connected disabilities, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is to specifically discuss the April 2011 opinion of Dr. P.Y. that the Veteran’s elevated liver enzymes and elevated creatinine are related to side effects of NSAID use. A June 2010 VA treatment note illustrates the Veteran is taking Meloxicam. Further, the examiner is to address the opinion of Dr. P.Y. that elevated liver enzymes generally denotes hepatic damage and that elevated creatinine generally denotes the onset of kidney failure. The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item (1), provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran’s partial loss of use of the bilateral lower extremities. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should provide an opinion on the following: A. Provide a diagnosis of any bilateral lower extremity disability, to include partial loss of use of the bilateral lower extremities, but aside from a bilateral knee disability. B. Please identify the likely etiology of any diagnosed bilateral lower extremity disability, to include partial loss of use of the bilateral lower extremities. Specifically, respond to the following questions: i. Is it at least as likely as not (a 50% or greater probability) that any diagnosed bilateral lower extremity disability (excluding a bilateral knee disability), to include partial loss of use of the bilateral lower extremities, is related to the Veteran’s service? ii. Is it at least as likely as not (a 50% or greater probability) that any diagnosed bilateral lower extremity disability (excluding a bilateral knee disability), to include partial loss of use of the bilateral lower extremities, was caused by the Veteran’s service-connected bilateral knee disabilities? iii. Is it at least as likely as not (a 50% or greater probability) that any diagnosed bilateral lower extremity disability (excluding a bilateral knee disability), including partial loss of use of the bilateral lower extremities was aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s service-connected bilateral knee disabilities? If the Veteran’s current bilateral lower extremity disability (excluding the bilateral knee disability), including partial loss of use of the bilateral lower extremities, has been aggravated by his service-connected bilateral knee disabilities, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Ensure that all notice and assistance obligations are satisfied concerning the claim for TDIU. Forward the appropriate form (VA Form 21-8940) to the Veteran for completion, and undertake any development necessary for this claim. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel