Citation Nr: 18156461 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-44 425 DATE: December 10, 2018 ORDER Service connection for left achilles tendonitis is denied. Service connection for right achilles tendonitis is denied. Service connection for a cervical spine disability is denied. Service connection for a left foot disability is denied. Service connection for right fourth and fifth toe cellulitis is denied. Service connection for a sleep disability is denied. Service connection for headaches is granted. Service connection for an acquired psychiatric disability is denied. An evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee is denied. An evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee with associated traumatic arthritis is denied. An initial evaluation in excess of 10 percent for tinnitus is denied. An effective date earlier than August 20, 2013, for a 10 percent evaluation for patellofemoral pain syndrome of the left knee is denied. An effective date earlier than August 20, 2013, for an award of service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have a current disability of the left achilles tendon. 2. The Veteran does not have a current disability of the right achilles tendon. 3. The Veteran does not have a current disability of the cervical spine. 4. The Veteran’s current left foot disability is not related to service and did not manifest within one year of separation. 5. The Veteran does not have a current disability of the toes of the right foot. 6. The Veteran does not have a current sleep disability. 7. Headaches arose in service or are related to tinnitus. 8. None of the Veteran’s acquired psychiatric disabilities are related to service. 9. Patellofemoral pain syndrome of the left knee is not productive of ankylosis, recurrent subluxation, lateral instability, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, limitation of extension, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 10. Patellofemoral pain syndrome of the right knee is not productive of ankylosis, recurrent subluxation, lateral instability, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, limitation of extension, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 11. The Veteran’s tinnitus is productive of no more than typical tinnitus. 12. The first communication received by VA from the Veteran regarding his left knee subsequent to a final May 2011 rating decision was his claim on August 20, 2013. 13. The first communication received by VA from the Veteran regarding tinnitus was his claim on August 20, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for left achilles tendonitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for right achilles tendonitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 5. The criteria for service connection for right fourth and fifth toe cellulitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 7. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 8. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 9. The criteria for an evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2018). 10. The criteria for an evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee with associated traumatic arthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2018). 11. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2018). 12. The criteria for an effective date prior to August 20, 2013, for a 10 percent evaluation for patellofemoral pain syndrome of the left knee have not been met. 38 U.S.C.A §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 13. The criteria for an effective date prior to August 20, 2013, for an award of service connection for tinnitus have not been met. 38 U.S.C.A §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to December 2000. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for left achilles tendonitis 2. Entitlement to service connection for right achilles tendonitis The Veteran claims service connection for bilateral achilles tendonitis. Service treatment records reflect that in January 1999 the Veteran reported ankle pain for the prior month. He was diagnosed with achilles tendonitis. Records show follow-up treatment in February 1999 and April 1999, which may have involved both ankles. In a March 2014 VA examination report for the Veteran’s knees, the examiner noted that an examination was also completed on the Veteran’s bilateral achilles tendons, but no questionnaire was completed given that all objective findings were normal bilaterally. Specifically, the examiner stated that he had no tenderness to palpation, nor swelling, and full ranges of motion in the ankles without pain or change with repetitive testing. Muscle strength was full on the right and 4/5 on the left, which the examiner attributed to his left lower extremity radiculopathy and not due to any tendon condition. The examiner found no residual disability associated with the tendonitis noted in service treatment records. The Board finds that the evidence weighs against a current disability of achilles tendonitis. The March 2014 VA examiner explained that the Veteran’s in-service tendonitis resolved without any current residual. There is no evidence in the record to contradict this finding. The Veteran has not described any current symptoms, and there are no treatment records for tendonitis or any other ankle disability since separation from service. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 3. Entitlement to service connection for a cervical spine disability The Veteran claims service connection for a cervical spine disability. Service treatment records do not reflect any symptoms of or treatment for a cervical spine disability. The Board finds that the evidence weighs against a current cervical spine disability. While treatment records show extensive treatment of a low back disability, there are no symptoms or diagnoses related to the cervical spine. The Veteran has not described any current symptoms or given any clarifying information. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 4. Entitlement to service connection for a left foot disability 5. Entitlement to service connection for right fourth and fifth toe cellulitis The Veteran claims service connection for bilateral foot disabilities. Service treatment records reflect that in August 2000 the Veteran was diagnosed with resolving cellulitis of the right fourth and fifth toes. Records do not reflect any symptoms of or treatment for a left foot disability. VA treatment records reflect that in January 2013 the Veteran reported pain, weakness, and numbness in his left leg and left foot since August 2012. He was diagnosed with severe foraminal stenosis and nerve root impingement. In April 2013 he reported no more pain but continued numbness since a March 2013 discectomy. In July 2013 he was reassured that numbness in the left foot continuing 3 months postoperatively is not unusual. He continued treatment thereafter for numbness in his left foot. The Veteran underwent a VA examination for his cellulitis in March 2014. No evidence of any residual cellulitis was found, nor did the Veteran recall the location of such symptoms in service. The examiner did not find any current disability. The Board finds that the evidence weighs against a finding that a current left foot disability is related to service or manifested within one year of separation. While the Veteran has been diagnosed and extensively treated for numbness and associated symptoms in his left foot, these symptoms have consistently been related to his lumbar foraminal stenosis and nerve root impingement with associated sciatica. There is no indication in the record that these symptoms arose in service or have any cause or aggravator beyond his lumbar spine disability. As the Veteran is not service-connected for his lumbar spine disability, secondary service connection is not available. For these reasons, the Board finds that the evidence weighs against a finding that a current left foot disability is related to service or manifested within one year of separation. Service connection is therefore denied. The Board further finds that the evidence weighs against a current disability of the right toes. The March 2014 VA examiner explained that the Veteran’s in-service cellulitis resolved without any current residual. There is no evidence in the record to contradict this finding. The Veteran has not described any current symptoms, and there are no treatment records for cellulitis or any other right foot disability since separation from service. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 6. Entitlement to service connection for a sleep disability The Veteran claims service connection for a sleep disability. Service treatment records do not reflect any symptoms of or treatment for a sleep disability. Private treatment records reflect that in a November 2005 report of medical history the Veteran reported insomnia associated with migraine headaches. The Veteran has submitted an August 2015 private examination report for mental health. The examining psychologist noted that the Veteran exhibits chronic sleep impairment including insomnia and broken sleep. The Board finds that the evidence weighs against a finding of a current sleep disability. While the Veteran has reported insomnia, it is not a disability itself but rather a symptom of other disabilities. The medical evidence shows that it is associated with his psychiatric disabilities. As the Board herein denies service connection for psychiatric disabilities, secondary service connection is not available, and in any event, such service connection would not be appropriate as the rating criteria for psychiatric disabilities compensate for sleep-related symptoms. The Veteran has also reported insomnia as the result of his headaches, but as a typical symptom of headaches, any insomnia is more properly considered when a rating for headaches is to be assigned. For these reasons, the Board finds that the Veteran’s insomnia is a symptom and not a current sleep disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 7. Entitlement to service connection for headaches The Veteran claims service connection for tension headaches. Service treatment records do not reflect any symptoms of or treatment for tension headaches. Private treatment records reflect that in a November 2005 report of medical history the Veteran reported daily migraine headaches. In December 2005 he reported chronic headaches every day, with disabling headaches on to two out of thirty. He was diagnosed with migraines versus tension headaches. In October 2006 he reported that his migraines had increased in intensity and had begun to have auras. VA treatment records reflect that in July 2010 the Veteran reported to his optometrist migraines in the front and top of head. He reported that they started 10 years prior. He was diagnosed chronic migraines with possible contribution from uncorrected refractive error and asthenopia. In April 2011 he reported that his headaches continued. The Veteran underwent a VA examination in March 2014. He reported that he had always had sinus problems but believes that they worsened during service because that was when he began to develop regular headaches. He was diagnosed with mixed feature headaches. The examiner opined that it was less likely than not that headaches were related to service. This opinion was based on the rationale that there was no chronic sinus condition present during service and his current symptoms were more indicative of rhinitis. His current headache symptoms were unlikely to be due to sinusitis or rhinitis because they presented as mainly tension headaches with some migrainous features. There was no service treatment record documentation of chronic tension or migraine headaches. At his March 2014 VA examination for hearing loss and tinnitus, the Veteran reported that his tinnitus at times causes headaches. The Veteran has submitted an August 2015 private examination report. He reported headaches which began in service during the same time as the onset of his tinnitus. The examining physician diagnosed mixed-type headaches. In an opinion attached to the Veteran’s August 2017 substantive appeal, the physician who provided the August 2015 private examination opined that it was as likely as not that the Veteran’s current tension and migraine headaches were permanently aggravated by his service-connected tinnitus. This opinion was supported by medical literature showing a relationship between tinnitus and headaches. The Veteran underwent another VA examination in August 2017. He reported headaches since 1998. The examiner opined that it was less likely than not that the Veteran’s headaches were caused or aggravated by tinnitus. This opinion was based on a finding that the medical record and examination findings did not support that claim. In a March 2018 statement, the Veteran’s girlfriend stated that she has observed that he often gets worse headaches when he also complains about the ringing in his ears. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s headaches arose in service or are related to tinnitus. While service treatment records do not reflect the presence of headaches, the Veteran has consistently reported that his headaches arose in service. Private treatment records show reports of headaches in November 2005, the earliest date for which nonservice treatment records are available. VA treatment records reflect that in July 2010 he reported to his optometrist that he had experienced migraines for 10 years, which goes back to service. Furthermore, the Veteran reported this to his optometrist almost three years before he first filed a claim for headaches. The statement is therefore more credible, as the Veteran apparently had no plans to be compensated for the symptoms at that time. In addition, the Board must consider the private examiner’s August 2017 opinion that headaches were caused or aggravated by tinnitus. The September 2017 VA examiner did not address this opinion. Moreover, while the VA examiner opined that there was no relationship between tinnitus and headaches, the opinion was based on a vague, conclusory rationale. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s headaches arose in service or are related to tinnitus. Service connection is therefore granted. 8. Entitlement to service connection for an acquired psychiatric disability The Veteran claims service connection for an acquired psychiatric disability. Service treatment records do not reflect any symptoms of or treatment for any mental health disabilities. Private treatment records reflect that in a November 2005 report of medical history the Veteran reported depression but denied suicidal ideation. The Veteran has submitted an August 2015 private examination report. He reported that his symptoms dated back to his claim date in August 2013. He reported self-esteem problems related to his knee disabilities and his tinnitus. The examining psychologist diagnosed unspecified depressive disorder. The psychologist opined that the disability more likely than not began in military service, has continued since, and was aggravated by his knee disabilities and tinnitus. This opinion was based on a statement from the Veteran’s father, who stated that he noticed a change in his son’s demeanor while he was in service, manifesting as emotional deterioration. After service, he struggled with motivation and became isolated. The psychologist cited medical literature which stated in general terms associations between military service and mental health symptoms. VA treatment records reflect that in July 2016 the Veteran reported difficulty with his studies and said he suspected he had attention deficit hyperactivity disorder (ADHD). He was referred for a mental health consultation. In December 2016 he was diagnosed with posttraumatic stress disorder (PTSD) related to childhood violence, adjustment disorder with mixed anxiety and depressed mood related to his marital separation, inattentive ADHD, and cannabis use disorder. Specifically, his PTSD was based on incidents in childhood when his house was broken into numerous times, including once when he was shot in the knee. He stated that on another occasion someone tried to steal his parents’ car when he was in it. The Veteran underwent a VA examination in September 2017. The examiner gave multiple diagnoses with separate etiologies. He was diagnosed with PTSD most likely related to childhood trauma of exposure to crime and violence. He was diagnosed with persistent depressive disorder most likely related to the loss of custody of his children and not seeing them for two years since his divorce. He was diagnosed with ADHD which, the examiner explained, by definition begins in childhood. The examiner opined that these diagnoses less likely than not arose in service. This opinion was based on the rationale that he documented no difficulties while in service, and attributed his current depression difficulties to his marital issues keeping him from his children. The examiner further opined that his diagnoses were less likely than not related to his service-connected disabilities. This opinion was based on the rationale that the Veteran reported no difficulty coping with his very mild service-connected knee disabilities or tinnitus, but rather attributed his current depression to his marital issues keeping him from his children. In an April 2018 brief, the Veteran’s representative argues that the September 2017 VA examiner did not sufficiently discuss the statement by the Veteran’s father or the effects of his knee disabilities and tinnitus. The Board finds that the evidence weighs against a finding that any of the Veteran’s acquired psychiatric disabilities are related to service. While the Veteran’s father no doubt noticed that being in the military had an effect on him, there was no indication of depression in his treatment records until nearly 5 years after service and no diagnosis of an acquired psychiatric disability until nearly 15 years after separation. The August 2015 private psychologist found that his depression arose in service based on his father’s statement and medical literature that generically associated depression with military service. The September 2017 VA examiner, in contrast, provided a detailed opinion of the causes of each psychiatric diagnosis. These opinions were consistent with the VA treatment records of July 2016, which cited significant childhood trauma as a basis for PTSD. The private psychologist’s report makes no reference to the symptoms of PTSD and the existence of this childhood trauma. As to secondary service connection, the VA examiner gave a credible opinion which noted that the Veteran himself did not describe difficulty coping with his relatively mild symptoms. In fact, the only evidence of secondary service connection are the suppositions of the August 2015 private psychologist based on statements from the Veteran, which vaguely discuss “physical problems” and do not appear to reference his knees at all. Given the significant gaps in the evaluation of the August 2015 private psychologist, the Board finds the September 2017 VA examiner’s opinion to be more probative overall. For these reasons, the Board finds that the evidence weighs against a finding that any of the Veteran’s acquired psychiatric disabilities are related to service. Service connection is therefore denied. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The 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). 9. Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee 10. Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee with associated traumatic arthritis The Veteran seeks increases to his 10 percent ratings for his bilateral knee disabilities. The Veteran is currently in receipt of 10 percent ratings in each knee for limitation of flexion of the leg under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under this code, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. Alternative and additional Diagnostic Codes for the leg and the knee are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. The Veteran underwent a VA examination in March 2014. He reported that his right knee was worse than his left with constant pain in the right and occasional pain in the left. Both knees had popping and grinding with pain associated with repetitive stairs or carrying a toolbox. He reported episodes of giving way on the left side, but the examiner attributed that and his reported left knee weakness to his radiculopathy. He reported flare-ups, stating that he cannot be on his feet more than 30-45 minutes. He reported occasional use of a cane. A tibial tuberosity on the right side had become more enlarged over the prior few years. Flexion and extension were full without evidence of pain. Repetitive testing did not lead to any additional functional impairment or loss of range. The examiner found functional loss with contributing factors of pain on movement. The examiner estimated that flare-ups would cause 5 degrees loss of flexion, no loss of extension, mild weakness, mild fatigability, and mild loss of coordination. There was evidence of bilateral tenderness to palpation and crepitus. Muscle strength was normal on the right and 4/5 on the left. Stability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no evidence or history of meniscal conditions or surgical procedures. X-rays showed degenerative changes in the right knee only. The examiner diagnosed bilateral patellofemoral pain syndrome with no impact on the Veteran’s ability to work. VA treatment records reflect regular reports of pain the Veteran’s legs, but for the most part such pain is diagnosed and treated as neurological symptoms related to his lumbar spine disability, not his musculoskeletal disabilities of the knees. The Veteran underwent another VA examination in September 2017. He reported arthritis pain, with stiffness and pulling in his right knee and grinding in his left knee. He reported flare-ups, occurring 2-5 times in the past year per knee, lasting a few hours, and reducing his ranges of motion by half. He reported functional loss that limits his ability to kneel. He did not use assistive device. Flexion was full with pain noted that did not result in functional loss. Extension was full without evidence of pain. Repetitive testing did not lead to any additional functional impairment or loss of range. There was no evidence of pain or passive range or without weight-bearing. The examiner found functional loss with contributing factors of pain on movement. There was no evidence of crepitus or pain with weight bearing. There was evidence of tenderness to palpation. The examination was neither medically consistent nor inconsistent with his description of functional loss with flare-ups or repetitive motion over time, and there was no conceptual or empirical basis to estimate such impairment without direct observation or mere speculation. The examiner noted a bony prominence in the right tibia. Muscle strength was full without atrophy. There was no ankylosis. There was no history or evidence of recurrent subluxation, lateral instability, or recurrent effusion. Stability tests were normal. There was no evidence or history of meniscal conditions. X-rays showed degenerative changes in the right knee only. The Board finds that ratings in excess of 10 percent are not warranted for the Veteran’s knee disabilities. Higher ratings are available for ankylosis, recurrent subluxation, lateral instability, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, limitation of extension, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence of ankylosis, dislocation or removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. At no time was limitation of extension noted. Flexion was never measured at less than full, but the March 2014 VA examiner estimated that there was loss of 5 degrees of range during flare-ups. As to subluxation and instability, there was no objective evidence of such at examinations. While the Veteran has reported falls, both VA treatment records and the March 2014 examination report reflect that such falls were the result of his radiculopathy and not his patellofemoral syndrome with degenerative arthritis. As to functional equivalence, the Board notes that his current 10 percent ratings are based on a finding of painful motion with limitation of range only occurring during flare-ups, and despite voluminous treatment records for his low back problems the Veteran has not sought treatment for his knee disabilities. Higher ratings are thus not warranted on the basis of functional equivalence. For these reasons, the Board finds that ratings in excess of 10 percent are not warranted for the Veteran’s knee disabilities. 11. Entitlement to an initial evaluation in excess of 10 percent for tinnitus The Veteran seeks an increased rating for tinnitus. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. His current 10 percent rating is warranted for recurrent tinnitus and is the maximum rating available. The Veteran underwent a VA examination in March 2014. He reported intermittent, bilateral tinnitus, generally present at night but sometimes lasting 3-4 hours during the day. He reported that at times it causes headaches, makes it harder to fall asleep, and makes it harder to hear. He was diagnosed with tinnitus. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s tinnitus. He is currently in receipt of the maximum schedular rating for tinnitus. He has not provided any indication why his tinnitus is atypical or otherwise warranting a rating higher than that afforded to nearly every other Veteran with service-connected tinnitus. Indeed, the symptoms he describes are essentially the definition of tinnitus. For these reasons, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s tinnitus. Effective Date 12. Entitlement to an effective date earlier than August 20, 2013, for a 10 percent evaluation for patellofemoral pain syndrome of the left knee Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C.A § 5110(a); 38 C.F.R. § 3.400. If the earliest date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). The Veteran was granted service connection for his left knee disability and awarded a noncompensable rating in a May 2011 rating decision. He did not appeal this decision or submit any new and material evidence and it therefore became final. The next communication VA received from the Veteran regarding his left knee was his claim. An exact receipt date is not clear on the face of the claim, but the Veteran dated the letter August 20, 2013, and it was processed by VA on August 22. VA treatment records reflect treatment of left leg pain in January 2013, but such pain was diagnosed not as musculoskeletal but as neurological in nature and secondary to his lumbar foraminal stenosis and nerve root impingement. The Board finds that the Veteran’s increase to 10 percent for a 10 percent evaluation for patellofemoral pain syndrome of the left knee does not warrant an effective date earlier than August 20, 2013. This current effective date is the date of his claim for an increased rating. VA received no indication of a worsening of this disability in the one year prior to the receipt of the claim, nor did VA receive any communication at all from the Veteran referring to the left knee since the May 2011 rating decision that assigned a noncompensable rating. Furthermore, the Veteran has not articulated any reason why an earlier effective date is warranted. For these reasons, the Board finds that the Veteran’s increase to 10 percent for a 10 percent evaluation for patellofemoral pain syndrome of the left knee does not warrant an effective date earlier than August 20, 2013. 13. Entitlement to an effective date earlier than August 20, 2013, for an award of service connection for tinnitus Generally, the effective date of an award of service connection is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C.A § 5110(a); 38 C.F.R. § 3.400. Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). The first communication VA received from the Veteran regarding tinnitus was his claim. An exact receipt date is not clear on the face of the claim, but the Veteran dated the letter August 20, 2013, and it was processed by VA on August 22. The Board finds that the Veteran’s award of service connection for tinnitus does not warrant an effective date earlier than August 20, 2013. This current effective date is the date of his claim for service connection. VA received nothing from the Veteran communicating an intent to claim service connection for tinnitus prior to this date. Furthermore, the Veteran has not articulated any reason why an earlier effective date is warranted. For these reasons, the Board finds that the Veteran’s award of service connection for tinnitus does not warrant an effective date earlier than August 20, 2013. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel