Citation Nr: 18157021 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-31 323 DATE: December 11, 2018 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a bilateral hip disability is denied. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right knee condition for the period prior to February 1, 2013, is denied. Entitlement to an initial disability rating in excess of 30 percent for a service-connected right knee condition for the period from April 1, 2014, is denied. Entitlement to an initial compensable disability rating for a service-connected right knee scar is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran’s lumbar spine disorder is due to an in-service injury, event, or disease. 2. The evidence of record is against finding that the Veteran’s bilateral hip disability is due to an in-service injury, event, or disease. 3. Prior to February 1, 2013, the Veteran’s service-connected right knee condition did not result in extension limited to 10 degrees or greater. 4. From April 1, 2014, the Veteran’s service-connected right knee condition resulted in an intermediate degree of residual weakness, pain, and limitation of motion. 5. The evidence of record indicates that the Veteran’s right knee scar is superficial, non-linear, covers an area less than 39 sq cm, and is neither painful nor unstable. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a bilateral hip disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. Prior to February 1, 2013, the criteria for an initial disability rating in excess of 10 percent for a service-connected right knee condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 4. From April 1, 2014, the criteria for an initial disability rating in excess of 30 percent for a service-connected right knee condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 5. The criteria for an initial compensable disability rating for a service-connected right knee scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1983 to May 1986. This case is on appeal before the Board of Veterans’ Appeals (Board) from July 2012 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Milwaukee, Wisconsin and Lincoln, Nebraska, respectively. This case returns to the Board after being remanded in May 2018 for new examinations for each of the conditions on appeal. A review of the record reflects additional medical evidence was added subsequent to the September 2018 Supplemental Statement of the Case (SSOC). Although this evidence was submitted without wavier of RO consideration, the evidence provided is essentially cumulative of the information previously considered. As such, no further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks service connection for a lumbar spine disorder and a bilateral hip disability, both of which he asserts are related to service or his service-connected right knee condition. The Veteran also seeks increased disability ratings for his service-connected right knee condition and right knee scar. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection The Veteran seeks service connection for a lumbar spine disorder and a bilateral hip disability, both of which he asserts are related to active service or his service-connected right knee condition. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). I. Lumbar Spine Disorder The Veteran seeks service connection for a lumbar spine disorder, which he alleges is related to active service or his service-connected right knee condition. See August 2014 Form 9. The Veteran’s service treatment records indicate that he fell down a set of stairs in April 1984, which resulted in complaints of pain and limited range of motion in his neck and back for the following month. He sought treatment for muscle pain in his neck and back once more in October 1985, but there is no indication that these complaints were related to the prior incident. The Veteran did not complain of back pain again until September 2012, when he sought treatment after falling from a ladder. An MRI of the Veteran’s lumbar spine from January 2013 found that the vertebral bodies were normal in height and alignment, with no disc space narrowing or disc herniations. The conus medullaris terminated at the lower L1 level. There was mild facet hypertrophy in the lower lumbar spine, but no central canal or foraminal stenosis was noted. A June 2013 X-ray of the Veteran’s lumbar spine revealed that the vertebral body heights and intervertebral alignment were maintained. There was no evidence of an acute fracture or subluxation, and the pedicles were intact. However, there was stable minimal narrowing of the L5-S1 intervertebral disc space, and facet joint arthropathy was noted in the lower lumbar spine. The Veteran was afforded a VA examination in December 2013. The examiner conducted an in-person evaluation and reviewed the claims file, noting a prior diagnosis of lumbar strain. Although the Veteran was seen for back pain that was apparently muscular in nature in April 1984, he did not complain of back pain again until 2012. Upon examination, forward flexion was measured at 50 degrees, with extension to 10 degrees. No spasms, abnormal gait, abnormal spinal contour, ankylosis, or arthritis were noted, and the Veteran did not use assistive devices. Based on the available imaging, the examiner concluded that the Veteran’s lumbar spine disorder was less likely than not related to or aggravated by service or his service-connected right knee condition. This is because the Veteran had some muscular back problems during service, but these problems did not result in long term disability. No back pain was mentioned when he resumed his care with the VA. He has a knee condition that would have altered his gate somewhat, but would not have had a significant enough impact on his overall biomechanics to cause a chronic low back condition. An MRI of the Veteran’s lumbar spine from March 2014 revealed a foraminal right lateral L3-L4 disc protrusion with possible impingement on the right L3 nerve root. Mild right foraminal narrowing had increased from the prior study at this level. There was also facet hypertrophy elsewhere in lower lumbar spine without significant stenosis. In August 2018, the Veteran underwent a second VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting prior diagnoses of lumbar strain and degenerative arthritis of the spine. The Veteran claimed that he is substantially limited by pain and must ambulate with a cane; however, he did not use any assistive devices during the visit. Upon examination, forward flexion was measured at 60 degrees, extension to 20 degrees. The examiner opined that the Veteran's lumbosacral strain and degenerative arthritis of lumbar spine are less likely than not related to or aggravated by service or his service-connected right knee condition. Rather, it is most likely the result his normal aging process and general arthritis. This is because the Veteran’s post-service complaints of lower back pain did not begin until 2012. At approximately the same time, the Veteran’s medical records showed significant general arthritis in many of his other joints. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s lumbar spine disorder is related to service or another service-connected condition. The Board notes that the opinions provided by the December 2013 and August 2018 VA examiners are the only statements from medical professionals addressing the etiology of the Veteran’s lumbar spine disorder. The VA examiners had the benefit of examining the Veteran and the claims file, and provided a clear basis for their medical opinions. The VA examiners also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found no relationship between his current lumbar spine disorder and his complaints in service, nor his service-connected right knee condition. The Board thus affords the greatest probative weight to the opinions of the December 2013 and August 2018 VA examiners, and adopts their conclusion that the Veteran’s lumbar spine disorder is not related to service or his service-connected right knee condition. The Board acknowledges the statements of the Veteran, which attribute his lumbar spine disorder to service or his service-connected right knee condition. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinions provided by the VA examiners in December 2013 and August 2018 are more probative than the Veteran’s lay assertions. The VA examiners have expertise, education, and training the Veteran is not shown to have. As such, those opinions warrant more weight. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran’s lumbar spine disorder is not related to service or another service-connected impairment. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for a lumbar spine disorder is denied. II. Bilateral Hip Disability The Veteran seeks service connection for a bilateral hip disability, which he alleges is related to active service or his service-connected right knee condition. See August 2014 Form 9. The Veteran’s service treatment records contain no complaints of hip pain, nor any other indication of a bilateral hip disability. There is no indication of hip problems until July 2011, when the Veteran complained of right hip pain during physical therapy for his right knee condition. An October 2012 X-ray of the Veteran’s right hip found that bony mineralization was within normal limits. No fracture, dislocation, or bone destruction was identified. The soft tissues were unremarkable, as was the included portion of the pelvis. The final impression was that there was no significant abnormality. In April 2013, the Veteran stated that he had had back and hip discomfort for the last few years, suggesting that these might have been exacerbated due to his right knee condition. The attending physician recommended additional physical therapy, but the Veteran refused. The Veteran underwent a VA examination in December 2013. The examiner conducted an in-person evaluation and reviewed the claims file, noting no diagnosed hip condition. Upon examination, right hip flexion was measured at 60 degrees, with extension to 0 degrees; left hip flexion was measured at 125 degrees, with extension to greater than 5 degrees. There was no evidence of ankylosis or arthritis, and an X-ray of the Veteran’s right hip taken during the examination was normal. Based on this evidence, the examiner opined that the Veteran’s hip disability does not affect his ability to work. Additionally, the examiner concluded that the Veteran does not have a condition of either hip that was caused or aggravated by service or his service-connected right knee condition. This is because the Veteran only complained of pain in the right hip. However, despite his complaints and demonstrated loss of range of motion, X-rays of his right hip were normal. There was also no evidence in the record of a right hip disorder. Notes from the Veteran’s physical therapist and others document complaints of hip pain, but these do not establish a diagnosis of a chronic hip condition. Even if the Veteran had a chronic hip disability, the biomechanics of his right knee condition would not be sufficient to result in a chronic hip problem, whatever the diagnosis. In August 2018, the Veteran was afforded a second VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting that the Veteran does not have a current diagnosed hip disability. Although he has complained of bilateral hip pain for many years, he did not use any orthotics, prosthetics, or assistive devices, and has never had surgery or injections. Upon examination, range of motion was normal bilaterally, with no loss of function with repetition. There was also full muscle strength, with no ankylosis noted. Based on this evidence, the examiner opined that, without objective findings, it is less likely than not that the Veteran has any permanent disability regarding his bilateral hip joints. The examiner also concluded that the Veteran’s complaints are more likely than not related to his non-service connected lower back condition. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s bilateral hip disability is related to service or his service-connected right knee condition. The Board notes that the opinions provided by the December 2013 and August 2018 VA examiners are the only statements from medical professionals addressing the nature and etiology of the Veteran’s bilateral hip disability. The VA examiners had the benefit of examining the Veteran and the claims file, and provided a clear basis for their medical opinions. The VA examiners also had the opportunity to review the Veteran’s VA medical records associated with the claims file. Neither found any objective evidence of a bilateral hip disability, nor any indication that the Veteran’s current complaints could be related to service or his service-connected right knee condition. The Board thus affords the greatest probative weight to the opinions of the December 2013 and August 2018 VA examiners, and adopts their conclusion that the Veteran does not have a bilateral hip disability that is related to active service or his service-connected right knee condition. The Board acknowledges the statements of the Veteran, which attribute his bilateral hip disability to service or his service-connected right knee condition. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinions provided by the VA examiners in December 2013 and August 2018 are more probative than the Veteran’s lay assertions. The VA examiners have expertise, education, and training the Veteran is not shown to have. As such, those opinions warrant more weight. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran’s bilateral hip disability is not related to service or another service-connected impairment. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for a bilateral hip disability is denied. Increased Ratings The Veteran seeks increased disability ratings for his service-connected right knee condition and right knee scar, both of which he alleges have worsened during the appeal period. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). I. Right Knee Condition The Veteran claims that his service-connected right knee condition warrants an initial disability rating in excess of 10 percent prior to February 1, 2013, and an initial evaluation in excess of 30 for the period from April 1, 2014. The appeal period began on February 14, 2012, the date service connection was established with the initial 10 percent disability rating. However, the Veteran underwent a total right knee replacement surgery on February 1, 2013, which necessitated a 100 percent convalescent evaluation under 38 C.F.R. § 4.30 to April 1, 2013. Thereafter, a 100 percent schedular disability rating was assigned under Diagnostic Code 5055 until April 1, 2014. However, from that date, the Veteran’s right knee condition was assigned a 30 percent disability rating. The Veteran appeals only the 10 percent evaluation prior to February 1, 2013, and the 30 percent disability rating from April 1, 2014. The Veteran’s right knee condition is currently rated under Diagnostic Code 5003-5261, which provides the criteria for traumatic arthritis and limitation of extension. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional one to identify the basis for the rating assigned; the additional diagnostic code is shown after the hyphen. Id. Separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5237, 5258 or 5259. Lyles v. Shulkin, 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Vet. App. Nov. 29, 2017); VAOPGCPREC 09-04 (September 17, 2004). In rating a disability of the musculoskeletal system, a number of factors are considered. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion of the leg is only limited to 60 degrees. A 10 percent disability rating is assigned when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability rating is assigned when flexion is limited to 15 degrees. Id. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension of the leg is limited to 5 degrees. A 10 percent disability rating is assigned when extension is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees. A 30 percent disability rating is assigned when the evidence shows extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees. A 50 percent disability rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. In June 2012, the Veteran was afforded a VA examination. The examiner noted a prior diagnoses of a partial ACL tear and degenerative joint disease of the knee. The Veteran complained of medial pain, which he rated as 7 out of 10. He stated that it occurred 5 days per week and lasting for a prolonged period. Upon examination, flexion was measured at 90 degrees with extension to 9 degrees. Evidence of painful motion began at 80 degrees flexion, with no evidence of painful motion during extension. The Veteran was able to perform repetitive testing, but this resulted in increased pain and reduced range of motion. There was no evidence of joint instability or meniscal conditions, but the Veteran occasionally used a brace. The presence of arthritis was confirmed by earlier imaging, but the examiner opined that the Veteran’s right knee condition does not affect his ability to work. An X-ray of the Veteran’s right knee from June 2012 showed narrowing of the lateral joint compartment. The tibia spines appeared sharp, and bony mineralization was within normal limits. There was no fracture, dislocation, or bone destruction, and no joint effusion was seen. A January 2013 X-ray of the Veteran’s right knee revealed stable downsloping of the medial tibial plateau. There was no acute fracture, subluxation, or knee joint effusion. However, there was moderate medial and lateral patellofemoral joint space narrowing, which had increased from the previous radiograph. On February 1, 2013, the Veteran underwent a total right knee arthroplasty, which resulted in the replacement of his knee joint with a prosthetic. An-X-ray of the Veteran’s right knee from June 2013 showed prosthesis with hardware at the distal femur and proximal tibia. In the interval, there was an abrupt loss of joint space with only minimal joint space remaining. However, there was no evidence of fracture or dislocation. The Veteran was afforded a second VA examination in December 2013. The examiner conducted an in-person evaluation and reviewed the claims file, noting the Veteran’s knee replacement in February 2013. The Veteran claimed consistent pain in his right knee, which he rated as 8.5 out of 10. He also stated that his knee will buckle and hyperextend, but indicated that stability was good. However, he had difficulty standing and walking for prolonged periods. Upon examination, flexion was measured at 70 degrees, with extension to 0 degrees. There was also evidence of painful motion at 60 degrees flexion, and 10 degrees extension. The Veteran was able to perform repetitive use testing, but flexion was limited to 55 degrees afterward. There was no evidence of joint instability, subluxation, or meniscal conditions, and the Veteran did not use any assistive devices. Imaging confirmed the presence of traumatic arthritis in the right knee, but the examiner opined that the Veteran’s condition would not affect his ability to work. Additionally, the examiner stated that increased pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the right knee joint is used repeatedly over a period of time. However, the degree of limitation or timing were impossible to estimate without resorting to mere speculation. A March 2014 X-ray of the Veteran’s right knee showed a total arthroplasty having a stable appearance with satisfactory alignment. There were no findings to suggest hardware failure, but suprapatellar dystrophic calcifications were noted. In September 2016, the Veteran underwent a third VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting degenerative arthritis of the right knee and a total arthroplasty of the right knee. The Veteran continued to complain of sharp, throbbing pain, which he rated 9 out of 10. He also stated that walking over uneven surfaces was difficult. He indicated that he wears a knee brace due to occasional buckling, but did not wear it during the examination. Upon examination, flexion was measured at 110 degrees, with extension to 0 degrees. There was no evidence of pain with weightbearing, but the Veteran exhibited localized tenderness on palpation in the area over his surgical scar. There was also full muscle strength, with no evidence of joint instability or meniscal conditions. The Veteran did not use any assistive devices but complained of pain during flare-ups. However, since the examination did not take place during a flare-up, the examiner was unable to say if pain, weakness, fatiguability, or incoordination would limit functional ability during flare-ups without resorting to mere speculation. Nonetheless, the examiner concluded that the Veteran’s right knee condition would not affect his ability to work, resulting only in an intermediate degree of residual weakness, pain, or limitation of motion. In January 2017, the Veteran slipped on some ice and fractured his right femur, which required the installation of hardware to correct. An X-ray of the Veteran’s right knee from the following month revealed the comminuted fracture in the distal femoral shaft had been reduced, with fragments held in near normal position and alignment by a metallic plate attached to the lateral aspect of the femur by multiple screws, and a cerclage wire surrounding the distal femoral shaft. There was no definite callus formation adjacent to the fracture to indicate osseous healing, and vertical row metallic surgical staples were present in the skin of the lateral thigh. There was a marked decrease in the size of a previous suprapatellar effusion, with mild residuals. No other significant changes were noted. Small corticated bone fragments were present above the patella, which may have been either displaced old fracture fragments or ossification in the quadriceps tendon. The total knee prosthesis was in good position, with no acute fracture, dislocation in the hip or knee, or additional abnormality. The Veteran was afforded a fourth VA examination in August 2017. The examiner conducted an in-person evaluation and reviewed the claims file, noting the Veteran’s total right knee arthroplasty as well as his right femur fracture. The Veteran continued to complain of pain over the very distal lateral locked plate, which involved the lateral right knee. The examiner opined that this was due to the hardware placed for his unrelated right femur fracture and not his prosthesis. Nonetheless, the Veteran reported constant pain, which he rated as 7 out of 10, and flares that occurred during the night with the slightest movement, resulting in pain rated as 9 out of 10. He also endorsed difficulty going up stairs, and stated that he will get a flare if he tries to walk more than 15 or 20 feet. Upon examination, flexion was measured to 95 degrees, with extension to 0 degrees. There was evidence of pain with weightbearing, along with tenderness over the distal lateral plate, but no evidence of functional loss with repetition. There was full muscle strength, with no evidence of joint instability or meniscal conditions. However, the Veteran regularly used a walker and a brace. Based on this evidence, the examiner opined that the Veteran’s right knee condition results in intermediate degrees of residual weakness, pain, or limitation or motion, but does not affect his ability to work. The examiner also stated that it was very difficult trying to assess the right knee for rating purposes because, at that point, the subjective complaints of chronic pain and objective findings of decreased range of motion with painful motion could be equally caused by both the service-connected right knee condition and the non-service connected femur fracture. Therefore, the examiner could not delineate these issues without resorting to mere speculation. However, the tenderness to palpation over the lateral right knee was solely due to the intact surgical hardware done for the non-service connected right femur fracture, while the tenderness to palpation over the anterior right knee was solely due to the service-connected right knee condition. The examiner stated that the Veteran would most likely continue to have this chronic pain until the surgical hardware for the right femur fracture was removed, and recommended another examination once that had taken place. In October 2017, the Veteran underwent a fifth VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting degenerative arthritis in both knees. Flexion in right knee was measured at 110 degrees, with extension to 0 degrees. There was evidence of pain with weightbearing and tenderness to palpation, but no loss of function with repetitive use. There was also full muscle strength, with no evidence of ankylosis, joint instability, or meniscal conditions. Based on this evidence, the examiner opined that the Veteran’s condition results in an intermediate degree of residual weakness, pain, or limitation of motion. The Veteran was noted to use a cane and brace occasionally, and the examiner found that his knee condition affects his ability to engage in occupational tasks. However, the examiner concluded that the Veteran was still capable of light or medium work. In February 2018, the Veteran had surgery to remove the hardware in his right femur. Three weeks after the surgery, he was functioning at a modified independent level for all mobility issues and activities of daily living. He was using a platform walker or crutches for mobility and was able to safely navigate stairs. His pain was also well-controlled. The Veteran was evaluated by orthopedics prior to discharge and his sutures were removed. His incision had well-approximated edges and was without concern for infection. The Veteran was afforded a sixth VA examination in August 2018. The examiner conducted an in-person evaluation and reviewed the claims file, noting a prior diagnosis of right knee osteoarthritis. The Veteran complained of constant pain and had received physical therapy. He occasionally used a cane, but did not appear at the appointment with any orthotics, prosthetics, or assistive devices. Upon examination, flexion was limited to 90 degrees, with extension to 0 degrees. The Veteran was able to perform repetitive use testing, with no additional functional loss after three repetitions. There was no evidence of muscle atrophy, ankylosis, joint instability, or meniscal conditions. The residuals of 2013 knee replacement surgery included intermediate degrees or residual weakness, pain, or limitation of motion. Based on this evidence, the examiner opined that the Veteran’s ability to walk, stand, kneel, and bend are restricted to a moderately severe degree due to his right knee condition. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s right knee condition warrants an initial disability rating in excess of 10 percent for the period prior to February 1, 2013. Similarly, there is no basis to award an initial evaluation in excess of 30 percent for the period from April 1, 2014. In order to qualify for a compensable disability rating under Diagnostic Code 5260, flexion must be 45 degrees or less. Similarly, to warrant a compensable evaluation under Diagnostic Code 5261, extension must be 10 degrees or greater. However, during the June 2012 VA examination, which is the only comprehensive evaluation of the Veteran’s right knee during the appeal period dating prior to February 1, 2013, flexion was measured at 90 degrees with extension to 9 degrees. Although there was evidence of painful motion at 80 degrees flexion, there were no indication of painful motion with extension. Because these measurements demonstrate loss of range of motion within the noncompensable range under Diagnostic Codes 5260 and 5261, a 10 percent disability rating is warranted under Diagnostic Code 5003 for the period prior to February 1, 2013. The Board notes that this is the evaluation that is currently assigned, and finds no basis to alter it in the evidence of record. The Veteran has been afforded multiple VA examinations since April 1, 2014. However, he never demonstrated flexion measuring 45 degrees or less, nor extension at 10 degrees or greater. As such, he is ineligible for compensable disability ratings under Diagnostic Code 5260 and 5261 for this period. While Diagnostic Code 5003 would normally assign a 10 percent evaluation in this circumstance, the Board notes that the Veteran underwent a total right knee replacement surgery prior to April 1, 2014. Thus, for this period, his right knee condition will be evaluated under Diagnostic Code 5055. Diagnostic Code 5055 assigns a 60 percent disability rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity. While intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262, the minimum disability rating following replacement of a knee joint is 30 percent. After a careful review of the evidence, the Board concludes that an evaluation in excess of 30 percent is not warranted. This is because the Veteran’s symptoms, when considered in relation Diagnostic Codes 5260 and 5261, suggest only an intermediate degree of impairment consistent with the minimum rating. Although the August 2017 VA examiner was unable to fully separate the symptoms attributable to the Veteran’s right knee prosthesis from those caused by his non-service connected right femur injury, he nonetheless opined that the Veteran’s right knee condition results only in intermediate degrees of residual weakness, pain, or limitation or motion. This conclusion was likewise echoed by the September 2016, October 2017, and August 2018 VA examiners. Coupled with the fact that the Veteran’s limitation of motion did not result in a compensable rating under either Diagnostic Code 5260 or 5261 even with the presence of the femur hardware, the opinions of the VA examiners do not suggest a level of restriction exceeding that contemplated by the minimal disability rating. Therefore, the Board declines to assign an evaluation in excess of 30 percent under Diagnostic Code 5055. The Board also notes numerous references to assistive devices in the evidence of record. Although Veteran reported using both a walker and a brace during the August 2017 VA examination, this evaluation occurred while the hardware necessitated by his non-service connected injury was still attached to his right femur. Nonetheless, the Veteran’s condition improved rapidly after this examination even prior to the hardware removal, as evinced by the relatively minor physical findings reflected in the October 2017 VA examination report. The Veteran’s rapid improvement in the months following his injury suggests that his most significant symptoms were attributable to his non-service connected femur fracture rather than his service-connected right knee prosthesis. Indeed, prior to his right femur fracture and the subsequent installation of the hardware, the Veteran reported that he did not use any assistive devices, as seen in the September 2016 VA examination report. However, following the installation and later removal of the right femur hardware, he stated that he only occasionally used a brace or cane, as evinced by the October 2017 and August 2018 VA examination reports. Even though the Veteran’s occasional need for an assistive device following his right femur fracture indicates that this injury worsened his existing service-connected right knee condition, this worsening was clearly not a natural progression of the existing impairment. As such, the Board similarly declines to issue a higher evaluation under Diagnostic Code 5055 based on the Veteran’s occasional need to use an assistive device. Lastly, the Board has considered whether additional ratings might be assigned for the Veteran’s right knee condition under other potentially relevant diagnostic codes. However, none of the evidence indicates that the Veteran suffers from lateral instability or subluxation, nor is there any indication of a meniscal condition. As such, the Veteran would not be entitled to separate ratings under Diagnostic Codes 5257, 5258, or 5259. In conclusion, the Board finds that the evidence of record does not warrant the application of an initial evaluation in excess of 10 percent for the Veteran’s service-connected right knee condition for the period prior to February 1, 2013. Similarly, the evidence of record is against finding an initial disability rating in excess of 30 percent for the period from April 1, 2014. To the extent that any higher level of compensation is sought for the Veteran’s right knee condition, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for initial increased disability ratings for his service-connected right knee condition is denied. II. Right Knee Scar The Veteran claims that his service-connected right knee scar warrants an initial compensable disability rating throughout the entire appeal period, which began on February 1, 2013, the date service connection was established. The Veteran’s right knee scar is currently rated under Diagnostic Code 7805, which pertains to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7801 assigns a 10 percent disability rating for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq cm) but less than 12 square inches (77 sq cm). A 20 percent disability rating requires an area or areas of at least 12 square inches (77 sq cm) but less than 72 square inches (465 sq cm). A 30 percent disability rating requires an area or areas of at least 72 square inches (465 sq cm) but less than 144 square inches (929 sq cm). A 40 percent disability rating requires an area or areas of 144 square inches (929 sq cm) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage. Id. Under Diagnostic Code 7802, a 10 percent disability rating is assigned for burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear and have an area or areas of 144 square inches (929 sq cm) or greater. Id. According to Diagnostic Code 7804, a 10 percent disability rating is assignable for one or two scars that are unstable or painful. A 20 percent disability rating is assignable for three or four scars that are unstable or painful. A 30 percent disability rating is assignable for five or more scars that are unstable and painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802 or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. The Veteran claims that his service-connected right knee scar is tender, painful, and restricts the motion of his right knee. See March 2014 correspondence. In December 2013, the Veteran underwent a VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting a surgical scar on the right knee. However, upon examination, there was no indication this scar was painful or unstable. The examination report described the scar as superficial and non-linear, measuring 20 cm in length and 1.5 cm in width with a total area of 15 sq cm. Based on this evidence, the examiner opined that the Veteran’s service-connected right knee scar does not result in functional limitations or affect his ability to perform occupation tasks. The Veteran was afforded a second VA examination in September 2016. The examiner conducted an in-person evaluation and reviewed the claims file, noting the diagnosis of a right knee scar from the Veteran’s surgery in February 2013. The Veteran stated that he experienced pain in the area over his surgical scar, which he described as a constant burning sensation that gets irritated with any contact with clothing. He rated the pain as 6 out of 10, and indicated that it improved with massages and over-the-counter creams. Upon examination, the Veteran’s right knee scar measured 20 cm in length and 1.5 cm in width, with a total area of 30 sq cm. The examination report described it as superficial and non-linear, and there was no evidence that scar was painful or unstable. Based on this evidence, the examiner opined that, despite the Veteran’s complaints, his right knee scar does not result in functional limitations. In August 2018, the Veteran underwent a third VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting the surgical scar on the Veteran’s right knee. Upon examination, the scar was 16 cm in length and 0.3 cm in width, with a total area of 4.8 sq cm. The Veteran complained of pain, but the examiner stated that the scar looked very stable. Additionally, the surrounding skin did not show any sign of inflammation, induration, infection, or keloid tissue. Based on this evidence, the examiner opined that the Veteran’s scar did not result in functional limitations or affect his ability to engage in occupational tasks. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected right knee scar is entitled to an initial compensable evaluation. The Board notes that there is considerable variance in the record as to the exact size of the Veteran’s right knee scar. The December 2013 VA examiner calculated its total area at 15 sq cm, while the September 2016 VA examiner found it to be 30 sq cm. Lastly, the August 2018 VA examiner determined that the Veteran’s right knee scar was only 4.8 sq cm. Nonetheless, this is immaterial since, in order to qualify for the 10 percent disability rating under Diagnostic Code 7801, the total area of the service-connected scar must be at least 39 sq cm. The Board also recognizes that Diagnostic Code 7801 requires the service-connected scar to be both deep and non-linear. Here, although the three VA examiners agreed that the Veteran’s right knee scar was non-linear, they also concurred that it was superficial. As such, there is nothing in the record to support the existence of a deep scar covering an area at least 39 sq cm. Thus, the Veteran’s service-connected right knee scar does not warrant a compensable disability rating under Diagnostic Code 7801. The evidence of record therefore establishes that the Veteran’s right knee scar is superficial and covers an area no greater than 30 sq cm. This is far less than the total area of 144 sq cm required for a 10 percent rating under Diagnostic Code 7802, which pertains to superficial scars. As such, the Veteran is likewise not entitled to a compensable disability rating under that diagnostic code. Lastly, Diagnostic Code 7804 assigns a 10 percent evaluation for one or two scars that are unstable or painful. Although the Veteran alleges that his right knee scar affects the range of motion in that joint, there is nothing in the record to corroborate these claims. Indeed, the December 2013, September 2016, and August 2018 VA examiners all concluded that the Veteran’s right knee scar is neither painful nor unstable. Therefore, since the weight of the evidence is against finding that the Veteran’s right knee scar is unstable or painful, the Board determines that he is not entitled to a compensable disability rating under Diagnostic Code 7804. (CONTINUED ON NEXT PAGE) In conclusion, the Board finds that the evidence of record does not support the assignment of an initial compensable evaluation for the Veteran’s service-connected right knee scar under any applicable diagnostic code. To the extent that any higher level of compensation is sought for this condition, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for an initial compensable disability rating for his service-connected right knee scar is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel