Citation Nr: 20049136 Decision Date: 07/22/20 Archive Date: 07/22/20 DOCKET NO. 15-29 789 DATE: July 22, 2020 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. Entitlement to a rating in excess of 10 percent for neuropathy of the right hand with early Dupuytren's contracture is denied. Entitlement to a rating in excess of 10 percent for neuropathy of the left hand with early Dupuytren's contracture is denied. Entitlement to an initial 10 percent rating for neuropathy of the right foot prior to January 7, 2011 is granted but entitlement to a rating in excess of 10 percent is denied. Entitlement to an initial 10 percent rating for neuropathy of the left foot prior to January 7, 2011 is granted but entitlement to a rating in excess of 10 percent is denied. Entitlement to an initial compensable rating for bilateral hearing loss prior to September 27, 2019 and to a rating in excess of 20 percent thereafter is denied. Entitlement to a higher level of special monthly compensation based on loss of use of a creative organ is denied. Entitlement to an initial compensable rating for status post distal fibular fracture prior to September 26, 2019 and to a rating in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin during the period on appeal. 2. The Veteran’s neuropathy of the right hand with early Dupuytren’s contracture is manifest by no more than mild incomplete paralysis of the major extremity. 3. The Veteran’s neuropathy of the left hand with early Dupuytren’s contracture is manifest by no more than mild incomplete paralysis of the minor extremity. 4. The Veteran’s neuropathy of the right foot is manifest by no more than mild incomplete paralysis for the entire period on appeal. 5. The Veteran’s neuropathy of the right foot is manifest by no more than mild incomplete paralysis for the entire period on appeal. 6. Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level I in the left ear prior to September 27, 2019 and no worse than Level VI in the right ear and no worse than Level V in the left ear thereafter. 7. There is only one level of special monthly compensation based on loss of use of a creative organ. 8. The Veteran's status post distal fibular fracture was manifest by no functional impairment prior to September 26, 2019 and impairment of the fibula with slight knee disability thereafter. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to a rating in excess of 10 percent for neuropathy of the right hand with early Dupuytren's contracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 3. The criteria for entitlement to a rating in excess of 10 percent for neuropathy of the left hand with early Dupuytren's contracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 4. The criteria for entitlement to an initial 10 percent rating for neuropathy of the right foot prior to January 7, 2011 have been met, but the criteria for entitlement to a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an initial 10 percent rating for neuropathy of the left foot prior to January 7, 2011 have been met, but the criteria for entitlement to a a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to September 27, 2019 and to a rating in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 7. The criteria for entitlement to a higher level of special monthly compensation based on loss of use of a creative organ have not been met. 8. The criteria for entitlement to an initial compensable rating for status post distal fibular fracture prior to September 26, 2019 and entitlement to a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1963 to June 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the matter for additional development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. The Veteran seeks entitlement to an increased rating for his service-connected diabetes mellitus, which has been rated as 20 percent disabling throughout the period on appeal. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin during the period on appeal. The Veteran was afforded VA examinations in October 2011 and September 2019. Both of the VA examiners concluded that the Veteran’s diabetes mellitus did not require the regulation of activities. VA outpatient treatment records as well as private records from Dr. G.S. were reviewed and are negative for any evidence that any treatment provider has advised the Veteran to avoid physical assertion due to diabetes mellitus. In fact, records from Dr. G.S. reflect that the Veteran was encouraged to exercise to improve his cholesterol readings. In conclusion, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The Veteran has several complications of diabetes mellitus including peripheral neuropathy of the bilateral upper and lower extremities, as well as voiding dysfunction, that have been assigned separate compensable evaluations. The Veteran's also has erectile dysfunction associated with his diabetes mellitus, but there is no evidence that his erectile dysfunction is compensable. For all the above reasons, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 10 percent for neuropathy of the right hand with early Dupuytren's contracture is denied. 3. Entitlement to a rating in excess of 10 percent for neuropathy of the left hand with early Dupuytren's contracture is denied. Issues 2-3: The Veteran seeks a higher rating for neuropathy of the right and left hands with Dupuytren’s contracture. The Veteran has reported pain and stinging in his hands, as well as difficulty holding things. The Veteran's representative has argued that Diagnostic Codes 5307-5309, which rate injuries to muscle groups in the hand and wrists, might afford a higher rating, but does not identify any service-connected muscle group injury to either upper extremity or explain why these diagnostic codes would be more appropriate for evaluating the Veteran's peripheral nerve condition than diagnostic codes specific to diseases of the peripheral nerves. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis of the median nerve is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran was afforded VA Peripheral Nerve examinations in October 2011 and September 2019. At the October 2011 VA examination, the Veteran reported tingling and numbness in his hands. On examination, he had normal peripheral pulse, normal reflexes, and normal muscle function. Early evidence of Dupuytren’s contracture was noted, but range of motion of his fingers was normal. Sensation to pinprick was diminished in the fingertips bilaterally. At the September 2019 VA examination, the Veteran reported mild pain, paresthesias, and numbness in the bilateral upper extremities. He had 4/5 grip strength bilaterally, but otherwise normal strength in the bilateral upper extremities. Reflexes were normal bilaterally. Sensation was intact bilaterally to light touch, but the Veteran had diminished position sense and vibration perception. No muscle atrophy or trophic changes were observed. The examiner characterized the Veteran's overall disability picture as mild incomplete paralysis of the right and left median nerve. At a September 2019 VA Hand and Finger examination, the Veteran reported contracture of the 4th and 5th fingers of his right hand, with swelling, locking, and stiffness of the hand and pain on weight bearing and gripping. On examination, the Veteran had slight limitation of motion of the right and left thumb, but limitation did not rise to a compensable level, that is, a gap of one inch or greater between the thumb pad and fingers. The Veteran had full range of motion of the remaining fingers bilaterally, but did report pain with range of motion and pain with use of the hand. Tenderness to palpation was observed in the hypothenar area consistent with Dupuytren’s contracture. Private treatment records from Dr. G.S. were also reviewed. However, while they show that the Veteran was diagnosed with diabetic peripheral neuropathy, examination reports show that he consistently had normal muscle strength/tone in the bilateral upper extremities during the period on appeal and no objective evidence of any sensory deficits in the upper extremities is noted. Based on the above, the Board finds that the Veteran’s peripheral neuropathy of the left and right upper extremities is primarily manifest by complaints of mild pain, stiffness, numbness, and paresthesias with slightly impaired grip strength. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by loss of reflexes, trophic changes, muscle atrophy, or complete paralysis. Overall, the Veteran's symptoms are predominately sensory, with only minimal impairment of motor function. The November 2019 VA examiner characterized the Veteran's disability as mild. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Additionally, although the Veteran has reported hand stiffness and locking and had some slight limitation of motion of the thumbs at the September 2019 VA examination, this limitation of motion is not severe enough to be compensable under Diagnostic Codes 5228, 5229, or 5230, which rate limitation of motion of the fingers. The Veteran’s representative has argued that Diagnostic Codes 5307-5309, which rate injuries to muscle groups in the hand and wrists, might afford a higher rating, but there is no evidence that the Veteran has any service-connected muscle group injury to either upper extremity and the Veteran's representative has not explained why these diagnostic codes would be more appropriate for evaluating the Veteran’s peripheral nerve condition than diagnostic codes specific to diseases of the peripheral nerves. Therefore, a separate or higher rating under a different diagnostic code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for neuropathy of the right and left hand with early Dupuytren’s contracture. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an initial compensable rating for neuropathy of the right foot prior to January 7, 2011 and to a rating in excess of 10 percent thereafter is denied. 5. Entitlement to an initial compensable rating for neuropathy of the left foot prior to January 7, 2011 and to a rating in excess of 10 percent thereafter is denied. Issues 4-5: The Veteran seeks a higher disability rating for his neuropathy of the right and left feet. The Veteran contends that an initial compensable evaluation is warranted because he had symptoms of neuropathy in his lower extremities prior to January 2011. He has also argued that his condition has worsened, describing pain, stinging, swelling, and color changes to his feet which make prolonged walking difficult. Entitlement to an initial compensable rating for neuropathy of the right and left feet prior to January 7, 2011 is granted, but entitlement to a rating in excess of 10 percent is denied for any period on appeal. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran was afforded VA examinations of his peripheral nerves in October 2011 and September 2019. At the October 2011 VA examination, the Veteran described symptoms of numbness and tingling in his feet. On examination, peripheral pulse, reflexes, and motor function were intact. No trophic changes were observed. Sensation to pinprick was diminished in the right and left toes. In September 2019, the Veteran reported burning, tingling pain in his feet. He described constant pain, paresthesias, and numbness. The Veteran had 3/5 muscle strength bilaterally with knee flexion and extension, but otherwise normal strength in the lower extremities. Deep tendon reflexes were intact. He experienced decreased sensation to light touch in the toes/feet bilaterally. He also experienced decreased vibration sensation and position sense. He had no muscle atrophy or trophic changes. The examiner characterized the Veteran's overall disability as mild incomplete paralysis of the right and left sciatic nerve. Private treatment records from Dr. G.S. show that the Veteran had a diagnosis of diabetic neuropathy before March 30, 2010, the effective date of the grant of service connection for neuropathy of the right and left feet. Therefore, an initial compensable evaluation for diabetic neuropathy is warranted. However, these records consistently note normal sensation to monofilament testing of the feet, with only occasional instances of deceased sensation, and normal muscle strength and tone in the bilateral lower extremities, consistent with a mild disability. Records from Atlantic Foot and Ankle Center document decreased sensation in the bilateral lower extremities, but full muscle strength. Based on the above, the Board finds that the Veteran's bilateral lower extremity neuropathy is primarily manifest by sensory disturbances and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that entitlement to an initial compensable evaluation is warranted, but the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for neuropathy of the right foot and neuropathy of the left foot. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to an initial compensable rating for bilateral hearing loss prior to September 27, 2019 and to a rating in excess of 20 percent thereafter is denied. The Veteran seeks entitlement to an initial compensable rating for bilateral hearing loss and entitlement to a rating in excess of 20 percent after September 27, 2019. He contends that his condition has worsened during the period on appeal. The criteria for entitlement to an initial compensable rating for bilateral hearing loss and entitlement to a rating in excess of 20 percent after September 27, 2019 have not been met. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes. Id. For exceptional hearing impairment, 38 C.F.R. § 4.86 states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. Of record are results from VA compensation examinations from October 2011 and September 2019. The October 2011 examination yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 35, 45, 50, 70, and 70 decibels, respectively, for an average over the four frequencies of interest of 59 decibels. Test results of pure tone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz of 25, 40, 50, 65, and 65 decibels, respectively, for an average over the four frequencies of interest of 55 decibels. Speech audiometry test results revealed speech recognition ability of 96% in both the right and left ears. These results show that the Veteran does not have exceptional hearing loss in the either ear as contemplated in 38 C.F.R. § 4.86. The Veteran described difficulty understanding quite conversations and hearing in situations with background noise. Application of 38 C.F.R. § 4.85 Table VI to the October 2011 measurements results in assignment of Roman Numeral II to the right ear and Roman Numeral I to the left ear, for the purpose of determining a disability rating. A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column I. Additional VA testing was performed in September 2019. The September 2019 examination yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz of 35, 45, 65, 70, and 80 decibels, respectively, for an average over the four frequencies of interest of 65 decibels. Pure tone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 30, 40, 60, 70, and 75 decibels, respectively, for an average over the four frequencies of interest of 61 decibels. Speech audiometry test results revealed speech recognition ability of 60% in the right ear and 68% in the left ear. These results show that the Veteran does not have exceptional hearing impairment in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the September 2019 measurements results in assignment of Roman Numeral VI to the left ear and Roman Numeral V to the right ear, for the purpose of determining a disability rating. A 20 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row VI with column V. The October 2011 and September 2019 audiological test results do not provide for assigning a compensable disability rating for the Veteran’s bilateral hearing loss. VA outpatient treatment records and private medical records were also reviewed, but they are negative for any evidence that would support entitlement to a higher rating. For all the above reasons, entitlement to a higher rating for bilateral hearing loss for any period on appeal must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 7. Entitlement to a higher level of special monthly compensation based on loss of use of a creative organ is denied. The Veteran seeks entitlement to a higher level of special monthly compensation based on loss of use of a creative organ. The Board notes that although there are many different kinds of special monthly compensation, special monthly compensation based on loss of use of a creative organ has only one level of compensation. 38 U.S.C. § 1114 (k); 38 C.F.R. §§ 3.102, 3.350(a). Therefore, it is not possible as a matter of law to award a higher level of special monthly compensation based on loss of use of a creative organ, and the benefit of the doubt doctrine is not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 8. Entitlement to an initial compensable rating for status post distal fibular fracture prior to September 26, 2019 is granted but entitlement to a rating in excess of 10 percent thereafter is denied. The Veteran seeks entitlement to a higher rating for his service-connected residuals of a left distal fibular fracture. He has complained of left knee pain and difficulty with prolonged walking due to foot and leg pain. The criteria for entitlement to an initial compensable rating for status post distal fibular fracture prior to September 26, 2019 and entitlement to a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. The Veteran’s status post distal fibula fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. 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). The Veteran's was afforded VA examinations in October 2011 and September 2019. At the October 2011 examination, the Veteran reported left knee pain, weakness, and stiffness associated with his past fibula fracture, but denied this condition limited his ability to stand or walk. Examination of the left tibia and fibula was normal. Examination of the left knee was negative for edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, locking, genu recurvatum, crepitus, or ankylosis. The Veteran had full range of motion of the left knee, with no additional limitation of motion following repetitive testing. Stability testing was within normal limits. An x-ray of the left lower extremity showed an old healed fracture of the fibula. At the September 2019 VA examination, the Veteran reported swelling and stiffness in the mornings, as well as pain with standing, walking, and weight bearing, that worsen in damp and cold weather. On examination, range of motion of the left knee was from 0 degrees extension to 120 degrees flexion, with no additional limitation of motion following repetitive testing. The examiner opined that the Veteran's range of motion would be additionally limited to 100 degrees flexion during flare-ups due to pain and weakness. The Veteran had 4/5 strength in the left lower extremity, but no muscle atrophy. The Veteran had tenderness to palpation of the left ankle at the tibia junction. There was no recurrent subluxation, lateral instability, or effusion. Testing was negative for joint instability. VA and private medical records were also reviewed, but were negative for any evidence showing a worsening of his service-connected status post distal fibular fracture. Based on the above evidence, the Board finds that the preponderance of the evidence weighs against assigning a compensable rating prior to September 26, 2019. While the Veteran reported subjective symptoms of left knee pain, weakness, and stiffness at his October 2011 VA examination, he denied that these symptoms interfered with ability to stand or walk and a physical examination of the Veteran's left lower extremity was normal, with no evidence of limitation of motion, instability, locking, or other functional impairment. In the absence of evidence that the Veteran’s subjective complaints resulted in functional impairment, there is no basis to assign a compensable evaluation. The also Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's status post distal fibular fracture at any time during the period on appeal. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, and stiffness, including during flare-ups noted at the September 2019 VA examination. However, even considering the Veteran’s lay reports of symptoms and minor functional loss, the degree of additional limitation would not result in symptoms more nearly approximating malunion of the tibia or fibula with moderate knee or ankle disability. The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Here, the Board notes that because of the broad, encompassing nature of Diagnostic Code 5262, assignment of a separate rating under most other diagnostic codes rating the knee and leg would constitute pyramiding. Additionally, the Board notes that there is no evidence that the Veteran's status post fibular fracture is manifest by knee ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, or genu recurvatum. While the Veteran did show slight limitation of motion of the left knee at his September 2019 VA examination, it was not enough to be compensable under Diagnostic Codes 5260 or 5261. Accordingly, a separate rating or higher rating under another diagnostic code is not warranted. (Continued on the next page)   In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating prior to September 26, 2019 and to a rating in excess of 10 percent thereafter for status post distal fibular fracture. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.