Citation Nr: 18157687 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-62 175 DATE: December 13, 2018 ORDER Entitlement to service connection for a low back/lumbar spine disorder is denied. Entitlement to a disability rating higher than 30 percent for the service-connected instability of the right knee is denied. Entitlement to a disability rating in excess of 20 percent for the service-connected limitation of motion of the right knee, is denied. Prior to January 10, 2017, entitlement to a disability rating higher than 20 percent for the service-connected instability of the left knee is denied. Prior to January 10, 2017, entitlement to a disability rating higher than 20 percent for the service-connected limitation of motion of the left knee is denied. Since March 1, 2018, entitlement to a disability rating higher than 30 percent for the service-connected prosthetic left knee replacement is denied. FINDINGS OF FACT 1. A low back disorder is not related to service. 2. The Veteran is receiving the maximum disability rating for the service-connected instability of the right knee. 3. The service-connected right knee limitation of motion has been manifested by painful motion with flexion greater than 60 degrees, and with extension that is generally full, but is limited during flares and by repeated use over time to 15 degrees. 4. Prior to January 10, 2017, the service-connected left knee instability was manifested by lateral instability that was no greater than moderate. 5. Prior to January 10, 2017, the service-connected right knee limitation of motion was manifested by painful motion with flexion greater than 60 degrees, and with extension that is generally full, but is limited during flares and by repeated use over time to 15 degrees. 6. Since March 1, 2018, the service-connected left knee prosthesis has been manifested by pain and stiffness, without chronic residuals of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for a disability rating higher than 30 percent for the service-connected instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 3. The criteria for a disability rating higher than 20 percent for the service-connected limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2018). 4. Prior to January 10, 2017, the criteria for a disability rating higher than 20 percent for the service-connected instability of the left knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 5. Prior to January 10, 2017, the criteria for a disability rating higher than 20 percent for the service-connected limitation of motion of the left knee were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2018). 6. Since March 1, 2018, the criteria for a disability rating higher than 30 percent for the service-connected left knee prosthesis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from August 1966 to September 1969, from August 1972 to April 1974, and from September 1995 to February 1996. This appeal comes before the Board of Veterans’ Appeals (Board) from July 2016 and March 2017 rating decisions of, or on behalf of, the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board notes that the RO developed a separate rating reduction claim regarding the 30 percent rating assigned at the termination of the 100 percent pre-stabilization rating for the left knee. However, this is not considered a rating reduction under VA law, but is a specific requirement of the diagnostic code used to rate prosthetic knee replacements. This pre-stabilization rating is not subject to the requirements applicable to stabilized or protected ratings. This is not a separate claim from the initial rating for the left knee prosthetic replacement. Accordingly, the Board has characterized this, and considered this, as a single issue. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim(s) on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the Veteran does not contend that his service-connected disabilities, without consideration of nonservice-connected disabilities, has rendered him unable to secure or follow a substantially gainful occupation. The Veteran submitted additional medical evidence subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction (AOJ). A recent amendment to governing law (38 U.S.C. § 7105) stipulates that, with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the Aug. 6, 2012, date of the enactment of the amendment, i.e., February 2, 2013, such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence. As the current appeal was perfected by a substantive appeal received after the effective date of the amendment, the Board will consider this evidence in the first instance. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (2012). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a low back disorder. The Veteran argued on the Notice of Disagreement that a back disorder is secondary to his service-connected knee disorders due to overcompensation (Record 08/02/2016). However, he has also argued that he injured his back directly in service. Service treatment records reveal the Veteran’s complaint of multiple symptoms in May 1973, including back pain, head pain, malaise, and stomach upset. These symptoms were attributed to gastroenteritis. No abnormalities of the spine or low back were noted at the time. The service treatment records otherwise do not reveal complaints, treatments or diagnoses pertinent to the claim (Record 04/01/2016 at 6). A report of medical examination performed on September 4, 1969, reveals normal clinical findings for the spine (Record 04/04/2016). A report of medical examination performed on August 3, 1972, reveals normal clinical findings for the spine. A report of medical history completed by the Veteran on the same day reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 04/01/2016 at 11). A report of medical examination performed on April 1, 1974, reveals normal clinical findings for the spine. A profile rating of L-1 was assigned. A report of medical history completed by the Veteran on the same day reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 04/01/2016). A report of medical examination performed on January 9, 1991, reveals normal findings for the spine. A report of medical history completed by the Veteran on January 9, 1991, reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 09/04/2001). A report of medical examination performed on January 17, 1992, reveals normal findings for the spine. A report of medical history completed by the Veteran on the same day reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 09/04/2001 at 84). A report of medical examination performed on December 13, 1992, reveals normal findings for the spine. A physical profile rating of L-1 was assigned. A report of medical history completed by the Veteran on the same day reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 09/04/2001 at 69). A report of medical history completed by the Veteran on September 20, 1995, reveals the Veteran’s statement that he had no history of, or current recurrent back pain (Record 09/04/2001 at 17). The report of medical examination for service separation, performed on February 13, 1996, reveals normal findings for the spine. The examiner assigned a physical profile rating of L-1. A report of medical history completed by the Veteran on the same day reveals the Veteran’s statement that he had no history of, or current, recurrent back pain (Record 09/04/2001 at 19). Regarding the physical profile ratings of L-1, the L factor concerns the pelvic girdle, lower back musculature, and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. The rating of 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). A private medical record dated August 10, 2011, reveals the Veteran complained of back pain following an injury in July 2011. He stated that he had never had back trouble but was doing cement work and had experienced increased pain the next morning. The length of symptoms was noted as 1 month. Diagnoses included degenerative disc disease and DISH (diffuse idiopathic skeletal hyperostosis) (Record 03/03/2016). An August 5, 2014, Clinical Note reveals diagnoses of low back pain, multi-level degenerative disc disease, and DISH (Record 03/14/2017). The Veteran was afforded a VA examination in July 2016. The examiner diagnosed degenerative arthritis of the spine, initially diagnosed in 2011. The VA examiner opined that a current low back disorder is less likely than not (less than 50 percent probability) incurred in or caused by service. The rationale was that the service treatment records do not note a back injury, the service separation examination does not find a back disorder, and the initial record of treatment for back problems notes that symptoms began within a month of the August 10, 2011, treatment record, and there had been no prior history of back troubles (Record 07/12/2016). A supplemental opinion dated November 2016 addresses secondary service connection. The examiner found that the back disorder was less likely as not (less than 50 percent probability) related to the service-connected knee disabilities. The rationale related to the sudden onset of the disability in 2011 due to a work injury, and the lack of any medical basis for knee arthritis causing back degenerative disc disease. The examiner also noted that the Veteran had a congenital disorder of DISH which was first noted in the August 2011 examination (Record 11/22/2016). After a review of all of the evidence, the Board finds that the criteria for service connection for a low back disorder have not been met. The Veteran’s medical records provide a remarkably clear picture regarding the onset and causes of his back problems. The Veteran was examined numerous times throughout his service and his spine was always found to be normal. His profile ratings consistently showed that he had no impairments of the back that would limit the performance of his duties. Moreover, the Veteran consistently stated that he had no history of recurrent back pain, and that he had no current recurrent back pain. To the extent the Veteran now asserts that he injured his back in service and that such injury was the cause of his current back disorder, the Board finds that such an assertion directly conflicts with his prior statements in service and in 2011. The Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In weighing the conflicting statements provided by the Veteran, the point in time in which the statement was made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the contemporaneous nature of the statements of medical history in service, and particularly at service separation, is significant. Furthermore, because those accounts were presented in the context of routine medical evaluations, it seems likely that the Veteran would provide accurate information. The “medical diagnosis or treatment” exception to the hearsay rule (Fed. R. Evid. 803) provides that “statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care.” Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans’ Appeals’ reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). In contrast to the Veteran’s accounts in service, and in 2011, when the Veteran thereafter presented his account, he was seeking VA benefits rather than medical treatment. While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Pond v. West, 12 Vet. App. 341, 345 (1999); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Veteran’s competency is not at issue with regard to recounting the events of service or the onset of back symptoms. Rather, it is the credibility of the Veteran’s recent account which the Board finds is lacking. Simply put, the reports of medical history in service, and the Veteran’s initial complaint of back symptoms in 2011, are more convincing than the Veteran's later statements made in support of a claim for monetary benefits. While the Veteran has arthritis, it was not noted in service and it did not become manifest to a degree of 10 percent or more within 1 year of service separation. Arthritis is primarily rated on the basis of limitation of motion. Therefore, the rating provisions addressing limitation of motion of specific joints must be considered in determining whether arthritis is manifest to a degree of 10 percent or more. Alternatively, in the case of degenerative arthritis (hypertrophic or osteo-arthritis) or arthritis due to trauma, there must be painful motion accompanied by X-ray evidence of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2018). In order for lumbar spine arthritis to have become manifest to a degree of 10 percent, there must be evidence to substantiate that (1) forward flexion of the thoracolumbar spine is limited to 85 degrees, or (2) that combined range of motion of the thoracolumbar spine is limited to 235 degrees, or (3) there must be a diagnosis “established by X-ray findings” and “satisfactory evidence of painful motion.” See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2018). In this case, there is no manifestation of arthritis to the requisite degree until many years after service separation. There is no medical opinion that purports to relate a back disorder to service or to a service-connected disability. The only opinion in favor of such an etiology comes from the Veteran’s lay statements. The Veteran submitted a medical article that discusses injury-related musculoskeletal conditions (Record 12/15/2016). A medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the medical text evidence submitted by the Veteran is not accompanied by the medical opinion of a medical professional. Additionally, it fails to demonstrate with any degree of certainty a relationship between the Veteran’s low back disorder and service, or a service-connected disability. For these reasons, the Board must find that the medical text evidence does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks, 11 Vet. App. at 317; see Libertine, 9 Vet. App. at 523. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that relating a current diagnosis of a disease process such as arthritis to remote events in service or to a service-connected disability, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge which is capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the claimed back disorder and service or a service-connected disability. The Veteran asserts that the VA examinations were inadequate because the examiners did not explain the rationale for the opinions (Record 12/30/2016). On the contrary, as set out above, the Board finds that the opinions rendered included rationales that are consistent with the evidence. The Board also finds that the rationale of the November 2016 examiner, although not explicitly mentioning secondary aggravation, also reasonably applies to secondary aggravation. The examiner reasoned that there was no medically recognized association between knee arthritis and spine arthritis, and that the Veteran’s back disorder had its onset due to a discrete injury after service. Accordingly, the Board finds that the examinations are adequate. In sum, the Board finds that a low back disorder is not related to service, and is not related by causation or aggravation to a service-connected disability. In light of these findings, the Board concludes that service connection for the claimed low back disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Ratings 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. See also 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. See 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a disability rating higher than 30 percent for the service-connected instability of the right knee. Entitlement to a disability rating higher than 20 percent for the service-connected instability of the left knee prior to January 10, 2017. Entitlement to a disability rating higher than 20 percent for the service-connected limitation of motion of the left knee prior to January 10, 2017. Entitlement to a disability rating higher than 30 percent for the service-connected prosthetic left knee replacement since March 1, 2018. Entitlement to a disability rating in excess of 20 percent for the service-connected limitation of motion of the right knee. The current appeal arises from a claim of entitlement to service connection for a bilateral knee disability received at VA on September 26, 2015. In a July 2016 rating decision, VA granted service connection for a bilateral knee disability and assigned an initial disability rating of 30 percent under Diagnostic Code 5257 for right knee instability, a 20 percent rating under Diagnostic Code 5257 for left knee instability, a 20 percent rating under Diagnostic Code 5261 for right knee limitation of motion, and a 20 percent rating under Diagnostic Code 5261 for left knee limitation of motion. Each rating was made effective September 26, 2015. In a March 2017 decision, VA granted a rating for left knee prosthetic replacement. A rating of 100 percent was assigned under Diagnostic Code 5055, effective January 10, 2017, and a rating of 30 percent was assigned under that code, effective March 1, 2018. This rating supersedes the separate ratings for instability and limitation of motion. Under Diagnostic Code 5055, knee replacement (prosthesis) is assigned a rating of 100 percent for prosthetic replacement for 1 year following implantation of prosthesis. Then, with chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261, or 5262 with a minimum rating of 30 percent. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee is assigned a rating of 30 percent if severe; a rating of 20 percent if moderate; and a rating of 10 percent if slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a rating of 10 percent is assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limited flexion merits a rating of 30 percent where flexion is limited to 15 degrees; 20 percent where flexion is limited to 30 degrees; 10 percent where flexion is limited to 45 degrees; and 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limited extension merits a rating of 50 percent where extension is limited to 45 degrees; 40 percent where extension is limited to 30 degrees; 30 percent where extension is limited to 20 degrees; 20 percent where extension is limited to 15 degrees; 10 percent where extension is limited to 10 degrees; and 0 percent where flexion is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. An August 5, 2014, Clinical Note reveals complaint of pain in the right knee, as well as weakness and giving out. The Veteran also reported popping and grinding. On examination, some mild swelling was noted. Range of motion was from 0 degrees extension to 130 degrees flexion (Record 03/14/2017). A February 1, 2016, Clinical Note reveals the Veteran’s complaint of bilateral knee pain, right worse than left. The Veteran had a 2 block walking tolerance and could not negotiate stairs in reciprocating fashion. On examination of the right knee, range of motion was from 0 degrees extension to 130 degrees flexion. The right knee was stable and lower extremity muscle strength was full (Record 03/03/2016). The report of a July 2016 VA Knee Examination reveals the Veteran’s complaint of daily pain with flares due to muscle spasms that cause locking of the right knee. The Veteran was unable to tolerate running. He walks with a bad limp favoring the right knee. He cannot tolerate hard physical exercise, extended walking, or lifting. Knee flexion was measured to 120 degrees, bilaterally, with pain and crepitus. Pain was noted on weight-bearing. After 3 repetitions, flexion was unchanged. Extension was measured to 0 degrees, bilaterally, without pain. After 3 repetitions, extension was to unchanged. With flares and with repeated use over time, each knee was reduced to 90 degrees flexion and 15 degrees extension. Muscle strength was full, with no atrophy. Lateral instability was moderate on the right and slight on the left. The Veteran had difficulty walking more than 1 mile, standing longer than 15 minutes, climbing or descending stairs, and he cannot tolerate squatting, kneeling, or crawling (Record 07/12/2016). An November 29, 2016, prescription pad note states that the Veteran had severe left knee osteoarthritis, which has progressively become worse, and which affects his activities of daily living as well as sleep at night (Record 01/24/2017). A January 9, 2017, Clinical Note reveals complaint of pain in the bilateral knees. The Veteran reported that he is limited to walking less than 2 blocks and cannot negotiate stairs in reciprocating fashion. He described his symptoms as severe and incapacitating, affecting all activities of daily living, as well as sleep. Radiographs of the right knee showed severe medial joint space compartment loss and moderate patellofemoral joint space narrowing and secondary degenerative changes with osteophyte formation (Record 03/14/2017). A January 10, 2017, post-operative report reveals the Veteran reported some stiffness in the left knee, but was otherwise pleased with the surgery and wished to proceed with the right knee as well. Range of motion of the left knee was from -5 degrees extension to 110 degrees flexion. Range of motion of the right knee was from 0 degrees extension to 130 degrees flexion. Both knees were stable. The Veteran had normal muscle strength and tone in the legs (Record 02/28/2018). A January 23, 2017, post-operative report reveals the Veteran’s report that physical therapy had provided a positive improvement and he was not using pain medication. The left knee had normal alignment with no deformity and no tenderness or warmth. Flexion was to 100 degrees and extension to -5 degrees (Record 03/14/2017). After a review of all of the evidence, the Board finds that the criteria for higher disability ratings for knee instability have not been met. Regarding the ratings for lateral instability under Diagnostic Code 5257, the Veteran has described giving way. The clinical evidence of instability is mixed. Indeed, the Veteran’s right knee has been found to be unaffected by instability by his private providers. Lateral instability, as measured by joint stability testing in July 2016, showed no more than moderate instability for the right knee. Prior to January 10, 2017, lateral instability of the left knee was no more than slight. Nevertheless, the RO assigned ratings based on severe instability on the right and moderate instability on the left. This finding is favorable to the Veteran and will not be disturbed. The Board notes that there is no higher rating than 30 percent for right knee instability. The Board also finds that a rating higher than 20 percent is not warranted prior to January 10, 2017, for left knee instability. The findings of the VA examiner and the Veteran’s private providers offer persuasive evidence that the lateral instability was not greater than slight and that there was no subluxation of the left knee. Regarding limitation of motion, the Board finds that the criteria for higher ratings are not met with respect to either knee. The current rating of 20 percent for the right knee, and 20 percent prior to January 10, 2017, for the left knee, contemplate flexion that is limited to 30 degrees or extension that is limited to 15 degrees. This is consistent with the findings of the VA examiner that, with flares and with repeated use over time, the Veteran’s extension can be limited to 15 degrees. However, his flexion was never decreased to 30 degrees. Thus, while separate ratings are permitted under Diagnostic Codes 5260 and 5261, in this case, the criteria have not been met and are not more nearly approximated than are the criteria for the 20 percent rating. 38 C.F.R. § 4.7. The Board finds that, since March 1, 2018, the criteria for a rating higher than 30 percent for the left knee prosthesis have not been met. As demonstrated in the post-surgical examination report in January 2017, range of motion of the left knee was noncompensable under Diagnostic Codes 5260 and 5261. The joint was stable and the Veteran had normal muscle strength and tone in the left leg. This is probative and persuasive evidence that the criteria of “severe painful motion or weakness” have not been met, and that the rating of 30 percent is appropriate. The Board has considered other diagnostic codes. However, based on the finding of July 2016 VA examiner that the Veteran had no history of meniscal conditions, the Board finds that such a rating is not appropriate. Moreover, neither Diagnostic Code 5258 nor Diagnostic Code 5259 provides a rating above what is currently assigned. While the Veteran described episodes of locking to the July 2016 VA examiner, locking and associated pain are reasonably contemplated as limitation of motion. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Codes 5258 and 5261 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of Diagnostic Code 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also Firestein, Kelley’s Textbook of Rheumatology 571 (9th ed. 2012) (“locking” is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of Diagnostic Code 5261, such limitation of motion is encompassed by the limitation of extension, including limitation of motion due to pain. Both diagnostic codes potentially overlap in “locking” as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board to grant separate ratings under both Diagnostic Code 5258 and 5261 under the specific facts of this case, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Regarding the Veteran’s argument that the rating of 100 percent should not have been reduced under Diagnostic Code 5055, the Board finds that this action is consistent with the wording of the regulation. There is no provision in Diagnostic Code 5055 for a permanent rating of 100 percent. The code directs that the rating of 100 percent lasts for 1 year, at which time either a 60 percent rating or 30 percent rating are to be assigned based on the evidence shown at that time. Any other application of that diagnostic code would be error as a matter of law. The Veteran has argued that an extraschedular rating should be assigned for the combined effect of his service-connected disabilities (Record 12/15/2016). On December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. See Final Rule, 82 Fed. Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed. Reg. 23228, 23232 (Apr. 20, 2016). This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on January 8, 2018. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board finds that the VA examination conducted in this case adequately describes the Veteran’s level of functional impairment and appears to be compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). In sum, the Board finds that the Veteran is receiving the maximum disability rating for the service-connected instability of the right knee; prior to January 10, 2017, the service-connected left knee instability was manifested by lateral instability that was no greater than moderate; prior to January 10, 2017, the service-connected right knee limitation of motion was manifested by painful motion that exceeded 60 degrees flexion, but that was limited during flares and by repeated use over time to 15 degrees extension; since March 1, 2018, the service-connected left knee prosthesis has been manifested by pain and stiffness, without chronic residuals of severe painful motion or weakness in the affected extremity; and, the service-connected right knee limitation of motion has been manifested by painful motion that exceeds 60 degrees flexion, but that is limited during flares and by repeated use over time to 15 degrees extension. In light of these findings, the Board concludes that no higher disability ratings are warranted than are currently assigned. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel