Citation Nr: 20023031 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 12-23 087 DATE: April 2, 2020 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. Entitlement to an increased rating in excess of 20 percent prior to March 1, 2017, for left knee residuals, status post repair of the medial collateral ligament and ACL reconstruction; status post arthroscopy to repair graft impingement is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 2. Effective prior to March 1, 2017, the Veteran’s left knee disability is manifested by limitation of motion most severely to 15 degrees of extension and 110 degrees of flexion and flare-ups including disturbance of locomotion and fatigue with walking and standing. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. Effective prior to March 1, 2017, the criteria for an increased rating in excess of 20 percent for limitation of motion in the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1983 to November 2003. This matter comes to the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2012, the AOJ, in pertinent part, denied an increased rating higher than 20 percent for the left knee disability. The AOJ denied service connection for sleep apnea in July 2014. In December 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ regarding the increased rating claim for the left knee. The Veteran initially elected to have another hearing concerning his service connection claim for sleep apnea but withdrew this request in June 2016. The Board remanded the appeal for additional development in December 2015 and September 2016. In June 2017, the Board, in pertinent part, denied service connection for sleep apnea and denied an increased rating higher than 20 percent for limitation of the left knee prior to March 1, 2017. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to an April 2018 Joint Motion for Partial Remand (JMPR), the Board’s decision as to the denials of an increased rating higher than 20 percent for the service-connected left knee disability and service connection for sleep apnea were vacated and remanded back to the Board. In November 2018, the Board remanded the case in compliance with the JMPR. The case is now returned for appellate review. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities The Veteran asserts that sleep apnea is related to his service-connected disabilities. He asserts that his service-connected disabilities caused him to gain weight, contributing to sleep apnea. The parties to the JMPR agreed that the Board’s June 2017 decision did not adequately address the impact of a recent opinion of the VA General Counsel, VAOGCPREC 1-2017, regarding obesity being an intermediate cause of a nonservice-connected disability. Thus, the Board remanded the claim in November 2018 so that a VA examiner could determine whether any service-connected disability caused the Veteran to become obese; whether the obesity was a substantial factor in causing sleep apnea; and whether the sleep apnea would not have occurred but for the obesity caused by a service-connected disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current disability of sleep apnea, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability, including any intervening factor of obesity. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In May 2014, the Veteran submitted a medical opinion from a private physician, Dr. J.P. The opinion described sleep apnea symptoms but did not provide a medical nexus between his sleep apnea and his service-connected disabilities. A VA examination was obtained in August 2014. The examination did not address whether sleep apnea is related to service-connected disabilities. The examiner opined that it is less likely than not that the Veteran’s obesity is related to any of his service-connected conditions. The physician explained that obesity is the accumulation of excess body fat. The examiner noted that the usual cause is consuming more calories than are burned through exercise and normal daily activities. In September 2016, the Board remanded the case for an addendum opinion to consider the Veteran’s argument that his service-connected disabilities prevent exercise, causing weight gain and sleep apnea. A medical opinion was provided in October 2016, which noted that the Veteran’s sleep apnea was not caused or aggravated by his service-connected disabilities, because sleep apnea was a structural defect in the upper airway; and the Veteran’s obesity was due to his lack of dietary adjustments from his restricted activities, which were due in part to his service-connected disabilities. The Veteran submitted a statement in November 2016 taking issue with the opinion provided. The Veteran noted that the doctor who provided the opinion regarding his sleep apnea was an osteopathy doctor and was not qualified in the medical field of sleep apnea. He noted that his PTSD makes him feel claustrophobic and will cause him to unknowingly remove his CPAP mask while sleeping at night. The fact that the VA osteopathy doctor provided the October 2016 opinion does not undermine the probative value of the opinion provided. VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician’s assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination). The Board may assume a VA medical examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed.Cir.2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). The evidence does not show, nor does the Veteran contend, that the osteopathy doctor who provided the opinion in October 2016 was incompetent. There is no need for further development, as the medical evidence in this case is sufficient to make a decision. With respect to the Veteran’s argument that his PTSD causes him to feel claustrophobic and take off his CPAP mask at night, he is competent to report his symptoms associated with his claimed sleep apnea, and any frequent waking symptoms are readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology of the claimed disability. The medical opinion in October 2016 noted that the Veteran’s service-connected disabilities did not cause or aggravate the Veteran’s sleep apnea, because the sleep apnea was a structural defect in the upper airway. The Board finds that there is no competent medical evidence of record to indicate that the Veteran’s sleep apnea is related to his service-connected disabilities. As for the Veteran’s argument that his service-connected disabilities caused him to be inactive, which, in turn, caused him to gain more weight and thus, aggravate his sleep apnea, on January 6, 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under U.S.C. §§ 1110 and 1131. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Similarly, obesity is not a “disability” for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, where obesity resulting from a service-connected disease or injury is productive of an impairment beyond that contemplated by the applicable rating criteria, VA may consider an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) for the service-connected disability based on that impairment. Also, VAOPGCPREC 1-2017 recognizes that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). In this case, however, the Veteran’s obesity is not shown to be an intermediate step between his service-connected disabilities and his sleep apnea. While the October 2016 VA examiner found that the Veteran’s obesity was due, in part, to his restricted activities, due in part to his service-connected disabilities, the examiner also found that the obesity was due to his lack of dietary adjustments from his restricted activities. The Veteran’s obesity is not a service-connected disability. The examiner in August 2014 noted that it was less likely than not that the Veteran’s obesity is related to any of his service-connected conditions. The physician explained that obesity is the accumulation of excess body fat caused by consuming more calories than the body burns. As noted, after the parties to the JMPR agreed that the Board’s June 2017 decision did not adequately address the impact of a recent opinion of the VA General Counsel, VAOGCPREC 1-2017, regarding obesity being an intermediate cause of a nonservice-connected disability, the Board remanded the claim in November 2018 so that a VA examiner could determine whether any service-connected disability caused the Veteran to become obese; whether the obesity was a substantial factor in causing sleep apnea; and whether the sleep apnea would not have occurred but for the obesity caused by a service-connected disability. After the case was remanded, a medical opinion was provided in March 2019. The May 2019 VA examiner opined that while the Veteran’s obesity was a risk factor for the Veteran’s sleep apnea, the obesity was not related to a service-connected disability, and instead was more likely due to excessive caloric intake. The March 2019 VA examiner noted that the Veteran had been told that sleep apnea had an increased risk factor for obesity. He had reportedly had lap band surgery in 2012 and had not lost any weight. The examiner determined that the Veteran’s service-connected disabilities including left knee, left wrist, carpal tunnel syndrome, lumbar strain, GERD, right thumb fracture, migraine headaches, and right shoulder disability did not cause the Veteran to become obese. The rationale was that obesity was caused by excessive caloric intake versus caloric expenditure. The examiner noted that if a person consumed more than he expends he will gain weight. Further, the examiner noted that if he consumes equal to his caloric expenditure, he will maintain weight; and if he consumes less than his expenditure, he would lose weight. The examiner found that the Veteran’s basic metabolic rate was 2034 calories; so that if he consumed the national recommended calories of 2000 a day, he would maintain his weight without exercising. The examiner thus determined that he was not obese because of inactivity. The Board notes that the Veteran is service connected for additional disabilities other than noted by the examiner in 2019, including PTSD, a right knee disability, and radiculopathy of the bilateral lower extremities. However, this does not change the probative value of the examiner’s opinion, as the basis of the opinion was that the Veteran’s caloric intake was the primary basis for his obesity not his inactivity caused by his service-connected disabilities. As to whether the Veteran’s obesity was a substantial factor in causing his sleep apnea, the examiner determined that it was, as obesity is one of the main risk factors for sleep apnea. It was noted that obesity was a risk factor for sleep apnea but that the obesity was not caused by the service-connected condition. It was noted again that the Veteran’s service-connected disabilities would not cause excessive caloric intake, as exercise did not include only weight-bearing activities. The examiner stated that pool exercises and recumbent bike exercises did not require weight bearing and could be used despite a knee condition. Again, it was noted that the Veteran must be consuming more calories than the national recommended 2000 calorie diet in order to gain weight and that he automatically burns 2034 calories daily without the need for exercise. Notwithstanding the three service-connected disabilities the examiner did not mention, the examiner was fully informed of the pertinent medical history of the case, provided a fully articulated opinion, and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the May 2019 medical opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). The Veteran’s representative argued in March 2020 that the examination was inadequate because it was performed by a family medicine doctor. The Board does not find this argument prevailing because, as previously discussed, the courts have held that the presumption of regularity applies to a VA examiner’s qualifications and the Board may assume the competency of a VA examiner unless there is clear evidence to the contrary to rebut such presumption. See Nohr v. McDonald, 27 Vet. App. 124 (2014), citing Parks v. Shinseki, 716 F.3d 581, 585 (Fed Cir 2013) (“Given that one part of the presumption of regularity is that the person selected by... VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications.”); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010), (holding that any challenge to the competence of a VA opinion’s provider “must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir.2004) “‘in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.’“.) In the present case, the Veteran’s representative based its argument solely on the fact that the VA examiner is a family medicine doctor to contend that the examiner does not have the requisite expertise or knowledge to render an opinion on the Veteran’s sleep apnea. The Board does not find that to be clear evidence to establish that the VA examiner lacks the request expertise to render the requested medical opinion as the title alone does not demonstrate the level of training or experience. Consequently, the Board does not find that remand is warranted for a new medical opinion by another physician solely due to the fact that the previous medical opinion was provided by a family medicine doctor. The Veteran believes that his service-connected disabilities caused his obesity, which in turn, caused his sleep apnea. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2019 medical opinion. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against the Veteran’s claim. Accordingly, the Board finds that the criteria for service connection for sleep apnea are not met and the Veteran’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). 2. Entitlement to an increased rating in excess of 20 percent prior to March 1, 2017, for left knee residuals, status post repair of the medial collateral ligament and ACL reconstruction; status post arthroscopy to repair graft impingement The Veteran contends that he is entitled to a rating higher than 20 percent for his left knee disability prior to March 1, 2017. The JMPR pointed out that the examination in March 2017 does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). It was noted that the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss experienced during flare-ups. Additionally, because the issue on appeal concerns the appellate period prior to March 1, 2017, the AOJ should obtain a retrospective medical opinion, to capture the severity of the left knee disability prior to March 1, 2017. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The Veteran’s left knee residuals, status post repair of the medial collateral ligament and ACL reconstruction; status post arthroscopy to repair graft impingement is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5256 for ankylosis of the knee. Under Diagnostic Code 5256, a minimal 30 percent rating is warranted for knee ankylosis with a favorable angle in full extension, or in slight flexion between zero and 10 degrees. However, prior to March 1, 2017, the Veteran’s left knee is rated based on limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg, as a minimum rating under Diagnostic Code 5256 does not apply. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the left knee disability prior to March 1, 2017. The Board acknowledges the Veteran’s lay reports of symptoms of pain, weakness, and fatigue, and that there was functional loss due to pain, weakness, and fatigue. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he was unable to stand or walk for any length of time, and unable to run, climb, or squat would not result in limitation of motion more nearly approximating extension limited to 20 degrees. By way of history, the service treatment records show that the Veteran had a bone-tendon-bone anterior cruciate ligament reconstruction performed in service in March 1988. He developed a persistent extension loss with contracture of approximately 10 degrees, which would not correct despite aggressive therapy. An August 2010 VA examination report shows complaints of giving way, pain, and repeated effusion in the left knee. He had an antalgic gait but there was no other evidence of abnormal weight-bearing. Physical examination showed grinding in the left knee, but no instability, patellar abnormality, or meniscus abnormality. Range of motion with active motion showed no objective evidence of pain. Flexion was to 125 degrees and extension was to 0 degrees. There was no objective evidence of pain following repetitive motion, or additional limitations after three repetitions of range of motion. The examiner commented that if there was flexion contracture on the left knee it was most likely a dynamic, inconstant one in which sometimes the knee became tight but full range of motion was recorded in 1998, 10 years after active duty post-operation. It was noted that the examiner in 2004 mentioned the inability of the Veteran to fully extend but did not give the amount in degrees. The examiner in 2010 noted that it likely was miniscule because the Veteran could heel walk, which is impossible with a flexed knee. A June 2012 VA orthopedic clinic note shows the Veteran was fitted for a left heel lift of 3/8 of an inch. The report also noted that the Veteran could not fully extend the knee. A July 2012 VA examination report shows range of motion from 0 to 140 degrees in the left knee. Repetitive use testing did not result in any further limitation of motion. Stability testing was normal and there was no history of recurrent patellar subluxation/ dislocation. A November 2012 private physical therapy record notes active range of motion in the left knee from 5 degrees of extension to 116 degrees of flexion. In a December 2012 statement, the Veteran indicated that his gait had been off since 1987 and that his leg length was uneven by 5/8 of an inch. He also noted that he was in constant pain. He also testified that his biggest problem in the left knee was instability and pain, as well as swelling. He noted that he would frequently fall because of instability in the left knee. His wife further testified about seeing him fall from instability in his left knee. The Veteran noted that he had pain in all ranges of motion. A January 2013 VA rehab medicine clinic note shows that an MRI performed in April 2012 of the left knee showed post ACL reconstruction changes; signal abnormality and irregularity of the mid-distal graft fibers which might indicate degeneration and/ or partial thickness tears; and intact ligament fibers. The examiner commented that this should be correlated clinically for signs of ligamentous instability. There was chronic scarring in the MCL and infrapatellar fat-pad. There also was truncation of the lateral meniscus body segment, which might represent prior partial meniscectomy versus radial tear. Range of motion was from negative 5 to 120 degrees on the left. There was some crepitus but no sign of acute inflammation. Leg length measurement showed 89.5 mm on the left and 91 mm on the right. The gait was stable without an assistive device and the Veteran was able to walk on heels and tiptoes. A September 2015 private medical statement notes that the Veteran had a leg length discrepancy from longstanding knee flexion contracture. An October 2015 private orthopedic record notes that the Veteran lacked approximately 15 degrees of extension. There was no instability, but he did have a 1+ Lachman’s test and a small effusion. In February 2016, a VA examination was provided. The Veteran complained of a chronic ache and stated that his knee would give out at times and felt unstable. His pain and limitation in range of motion was worse with weight-bearing activities such as squatting. Range of motion studies, however, showed left knee from 0 to 120 degrees with no evidence of pain with weight-bearing. There was no additional functional loss or range of motion loss after three repetitions. However, the examiner commented that with respect to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, it was noted that it was not possible to determine without resorting to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Joint stability testing showed a history of slight lateral instability in the left knee, but no history of recurrent subluxation or effusion. On objective joint stability testing there was (0 to 5 mm) lateral instability in the left knee, with varus pressure to the knee in extension and with 30 degrees of flexion. It also was noted that the Veteran used a brace regularly. It was noted that an August 2015 orthopedic evaluation also showed mostly stable knees with no significant laxity (5mm). An August 2016 VA examination report shows the Veteran’s complaints of being unable to stand or walk for any length of time. He reportedly wore a knee brace and a shoe lift, which he did not think helped. He stated that his knee would give out and that he had fallen two years ago. Range of motion in the left knee was from 10 degrees of extension to 110 degrees of flexion. There was evidence of pain on weight-bearing, as well as during both, flexion and extension. There also was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional functional loss after repetitive use. Stability testing showed lateral instability of 0 to 5 mm, and a history of slight lateral instability. A March 2017 VA examination report shows that the Veteran had range of motion in the left knee from 30 to 85 degrees and was unable to run, climb, or squat. He had ankylosis in flexion from 20 and 45 degrees, as well. The examiner was unable to test joint stability in the left knee due to pain. In addressing the argument in the JMPR that the examination in March 2017 does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), in that the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss experienced during flare-ups, the Board remanded the case for a retrospective opinion. In March 2019, a VA medical opinion was provided that the Veteran’s symptoms included constant pain, swelling, aching, throbbing, and pain that altered his gait and affected his hip. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. It was noted that pain, weakness, fatigability, or incoordination would significant limit functional ability with repeated use over time. The factors causing functional loss included pain, fatigue, weakness, and lack of endurance. The examiner was not able to describe the functional loss in terms of range of motion. It was noted that the Veteran would experience increased pain with movement, fatigue, weakness, and lack of endurance after repeated use over time leading to a decrease in functional capacity but that it was not possible to accurately estimate the exact range of motion loss as the Veteran’s limitations were variable depending on the time period. The examiner further found that the functional loss was supported and that there were records to support his functional loss to include disturbance of locomotion, pain, and fatigue with walking, standing, and swelling. However, the examiner found that it was not possible to provide more specific information on functional impairment without speculation due to a deficiency in the record. It was noted that the record showed in 2004 the Veteran had disturbance of locomotion, fatigue with walking and standing noted. He also had flare-ups with walking and running. The August 2016 VA examination report noted swelling, disturbance of locomotion, and interference with standing; and the February 2016 VA examination report noted pain and range of motion worse with weight-bearing activities. Thus, the examiner found that the records supported flare-ups including disturbance of locomotion and fatigue with walking and standing that would limit function in occupational and daily settings that required prolonged walking or standing. In evaluating the medical evidence of record, the Board notes that the medical findings prior to March 2017 do not support the criteria for a rating higher than 20 percent based on limitation of motion. The extension was most severely limited to 15 degrees, as noted on the private orthopedic record in October 2015, which warrants a 20 percent rating under Diagnostic Code 5261. The findings do not support a separate compensable rating for limitation of flexion in the left knee under Diagnostic Code 5260, as the most severe flexion was to 110 degrees in August 2016. The Board granted a separate rating for left knee instability in the June 2017 decision, which is not the subject of this appeal. See JMPR noting that the issue of entitlement to a separate 10 percent rating for lateral instability of the left knee, and Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) (that the Court is prohibited by statute from reversing findings of fact that are favorable to a claimant.) In considering whether compensable ratings might be assigned for the service-connected left knee disability under other diagnostic codes, there are no diagnostic codes that would address impairment of the knee that the Veteran is not already compensated for. Diagnostic Code 5258 provides for a 20 percent rating for history of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. As noted, a January 2013 VA rehab medicine clinic note shows that an MRI performed in April 2012 of the left knee showed post ACL reconstruction changes; signal abnormality and irregularity of the mid-distal graft fibers which might indicate degeneration and/ or partial thickness tears; and intact ligament fibers. The examiner commented that this might represent prior partial meniscectomy versus radial tear. Notwithstanding the partial meniscectomy in the left knee, the medical findings do not demonstrate any episodes of locking in the knee as a result. Diagnostic Code 5258 provides for a 20 percent rating based on dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. While the Veteran’s left knee symptoms include pain and effusion, Diagnostic Code 5258 requires the presence of all three as a result of dislocated semilunar cartilage and pain is certainly contemplated by the current rating. The Veteran is not entitled to a separate rating in his left knee solely due to effusion and pain. Thus, a separate rating under Diagnostic Code 5258 prior to March 1, 2017 does not apply. In addition, any current symptoms in the left knee from surgery under Diagnostic Code 5259 pertaining to removal of symptomatic semilunar cartilage, would be contemplated by the impairment based on limitation of motion and instability, which is addressed in the diagnostic codes already applied. Similarly, the evidence of impairment of the tibia and fibula would not warrant a separate rating under Diagnostic Code 5262, as the limitation of motion and instability symptoms are already compensated. Finally, a separate compensable rating under Diagnostic Code 5275 for shortening of the lower extremity is not warranted, as the left leg is less than one inch shorter than the right leg due to the left knee surgery in service. In order to receive a 10 percent rating under Diagnostic Code 5275, there must be a shortening of at least 1 and 1/4 inches. Medical records show that the Veteran’s left leg is 5/8 of an inch shorter than the right leg. The evidence shows that the Veteran has complained of painful motion of the left knee. Other than limitation of motion and pain with motion, in addition to flare-ups including disturbance of locomotion and fatigue with walking and standing, there was not shown to be any additional limitations due to repetitive use of the left knee. The March 2019 VA medical opinion noted that the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. It was noted that the Veteran would experience increased pain with movement, fatigue, weakness, and lack of endurance after repeated use over time leading to a decrease in functional capacity but that it was not possible to accurately estimate the exact range of motion loss as the Veteran’s limitations were variable depending on the time period. Accordingly, consideration of other factors of functional limitation does not support the grant of higher ratings for the left knee disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, there was some pain on weight-bearing in August 2016 (but none in February 2016). While range of motion testing was not consistently performed both with active and passive motion, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the range of motion studies did not support a rating higher than 20 percent. Even with consideration of the nature of the Veteran’s left knee disability including the background factors of functional impairment due to inability to stand or walk for prolonged periods, a rating higher than 20 percent for the left knee disability, prior to March 1, 2017, does not apply on the basis of limitation of motion. In considering the Veteran’s flare-ups including disturbance of locomotion and fatigue with walking and standing, as noted, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Veteran is competent to report symptoms associated with his left knee disability. However, as a layperson, lacking in medical training and expertise, he cannot provide a competent opinion on a matter as complex as the severity of the clinical manifestations of his left knee disability and his views are of limited probative value. And, even if his opinion were entitled to be accorded greater probative value, it is far outweighed by the medical evidence of record demonstrating clinical evaluation of the left knee. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In view of the foregoing, the Board denies an increased rating higher 20 percent for the left knee disability based on limitation of motion under Diagnostic Code 5261, effective prior to March 1, 2017. To the extent that the Veteran contends entitlement to a higher rating for his left knee disability, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57-58. The Board has considered any additional application of staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) but concludes that they are not warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.