Citation Nr: 21002140 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-27 983 DATE: January 12, 2021 ORDER New and material evidence having been received by the Department of Veterans Affairs (VA) sufficient to reopen a previously-denied claim to establish service connection for bilateral hallux rigidus with spurring into the first metatarsal bilaterally (a bilateral great toe disability), the claim is reopened. Service connection for a bilateral great toe disability is granted A disability rating in excess of a 10 percent for a removed, symptomatic meniscus of the right knee, since May 1, 2011 is denied. A disability rating in excess of 10 percent for right knee degenerative joint disease from February 1, 2011 to October 5, 2016 is denied. A disability rating in excess of 30 percent for status-post total right knee replacement with residuals, since December 1, 2017, is denied. A compensable disability rating for a right knee scar is denied. An initial compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. An April 2006 rating decision denied the Veteran’s claim to establish service connection for a bilateral great toe disability; he did not appeal that decision nor submit new evidence within one year of that rating decision. 2. Evidence received since the final April 2006 rating decision raises a reasonable possibility of substantiating the claim to establish service connection for a bilateral great toe disability. 3. The probative evidence of record establishes that the Veteran’s bilateral great toe disabilities are etiologically related to his service-connected right knee disability. 4. The Veteran’s meniscus of the right knee continues to be symptomatic despite surgical removal. 5. The Veteran’s right knee has manifested in painful motion limited to 5 degrees extension and 65 degrees flexion, but no greater. 6. The Veteran has had a right knee total arthroplasty, but without chronic residuals consisting of severe painful motion or weakness in the right leg 7. The Veteran’s right knee scars were not tender, unstable, or had underlying soft tissue damage. In total, the estimated total area of scarring is 8.6 square centimeters. 8. For the entire appeal period, the Veteran has had no worse than Level I hearing in both ears. CONCLUSIONS OF LAW 1. The April 2006 rating decision is final with respect to the Veteran’s claim to establish service connection for a bilateral great toe disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. Since the April 2006 rating decision, new and material evidence has been received by VA sufficient to reopen the issue of entitlement to service connection for a bilateral great toe disability; thus, the issue is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a bilateral great toe disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a disability rating in excess of 10 percent for a symptomatic, removed meniscus of the right knee have not been met 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259. 5. The criteria for a disability rating in excess of 10 percent for right knee degenerative joint disease, for the period between February 1, 2011 to October 5, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003, 5260 6. The criteria for entitlement to a disability rating in excess of 30 percent for status post total right knee replacement with residuals, since December 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5055 7. The criteria for a compensable disability rating for a right knee scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, DC 7802. 8. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from October 1977 to October 1981; and from December 1981 to December 1985. As a member of the United States Navy Reserves, he served on active duty from January 1986 to April 1987; from May 1995 to September 1995; from October 1999 to March 2000; and from November 2001 to January 2004. The Veteran’s claims on appeal to the Board of Veterans’ Appeals (Board) originate from rating decisions dated in December 2007 and January 2009. In the December 2007 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim to reopen his application for service connection for disability of the great toes. In the January 2009 rating decision, the AOJ denied the Veteran’s claims for an increased rating for his right knee (including a scar) and granted service connection for bilateral hearing loss, assigning a noncompensable disability rating effective August 29, 2008. In November 2015, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. In a January 2016 decision, the Board granted an increased disability rating of 20 percent for his right meniscus disability under DC 5258 (cartilage, semilunar, dislocated) as well as a separate 10 percent rating under DC 5003 (arthritis), each effective January 31, 2004 through February 17, 2011 and remanded the increased rating claims from February 17, 2011 to the present as well as the other claims on appeal were remanded to the AOJ for additional development. After the development was completed, several service connection claims were granted through a September 2016 rating decision. As these issues of entitlement to service connection have been granted in full, they are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). As for the remaining issues on appeal, the development requested of the AOJ has been completed and there has been substantial compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran reported that he was retired during a December 2019 VA knee examination. However, the Veteran has not asserted that his service-connected disabilities preclude employment. Therefore, entitlement to a total disability rating based upon unemployability (TDIU) has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). New and Material Evidence Claim Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines “new” evidence is existing evidence not previously submitted to agency decisionmakers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Regardless of what action was taken by the agency of original jurisdiction, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish service connection for bilateral hallux rigidus with spurring into the first metatarsal bilaterally (a bilateral great toe disability), the claim is reopened. In an April 2006 rating decision, the AOJ found that the Veteran’s service records did not establish a bilateral great toe disability and that while a positive nexus was provided, the clinician who offered the opinion did not possess the medical expertise to render an opinion linking the Veteran’s toes to his right knee. In September 2007, the Veteran applied to reopen his previously denied claim. A December 2007 rating decision found that recently submitted evidence did not constitute new and material evidence; thus, it declined to reopen the Veteran’s claim. Evidence received by VA since the April 2006 rating decision includes an additional medical opinion linking the Veteran’s toe disabilities to his service-connected right knee disability. The above evidence is “new,” as it was not before VA at the time of the April 2006 rating decision, and “material” as it raises the reasonable possibility of substantiating the previously-denied issue. To this point, the Board thus finds that new and material evidence has been submitted to reopen the claim of service connection for bilateral great toe disabilities. On that basis, the claims are reopened. Service Connection Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to direct service connection, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. However, the Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). 2. Service connection for a bilateral great toe disability is granted. The Veteran contends that his bilateral great toe disability is related to his service-connected right knee condition. The Veteran has a current diagnosis of a bilateral great toe disability. The question now turns whether this condition is related to his service-connected right knee condition. The Veteran submitted several medical opinions from Dr. B.A.W. In combination, these opinions discuss how the Veteran’s service-connected right knee disability caused a limp which impacted the Veteran’s great toes—bilateral hallux rigidus with spurring into the first metatarsal bilaterally. Thus, according to these opinions, the right knee disability caused and/or aggravated the bilateral great toe disability beyond its natural progression. See documents labeled Correspondence, received December 14, 2015, pages 2-3; and Medical Treatment Record - Non-Government Facility, received December 26, 2019. The Board gives the opinions great probative weight because they are based on a treating relationship with the Veteran and the doctor has the medical expertise to make such a determination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the April 2006 rating decision that originally denied the Veteran’s claim found that because Dr. B.A.W. was only a podiatrist and had no expertise concerning the knees, he did not possess the medical expertise to make the determination that the Veteran’s great toes were related to his right knee. However, Dr. B.A.W. is competent to render an opinion that a medical issue caused a gait imbalance affecting the Veteran’s great toes and the Veteran is competent to report that only his right knee was affecting him at that time. Therefore, the opinion is medically sound. Thus, the weight of the evidence is for the claim for service connection for a bilateral great toe disability. Accordingly, the claim is granted. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings Claims Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. A disability rating in excess of a 10 percent for a removed, symptomatic meniscus of the right knee, since May 1, 2011 is denied; a disability rating in excess of 10 percent for right knee degenerative joint disease from February 1, 2011 to October 5, 2016 is denied; a disability rating in excess of 30 percent for status-post total right knee replacement with residuals, since December 1, 2017, is denied. The Veteran contends that his service-connected right knee disabilities warrant higher ratings. By way of history, service treatment records show that the Veteran tore his right knee meniscus during service and underwent surgical repair in October 2002. The Veteran submitted an initial claim for service connection for a right knee disability in April 2004 and, by rating decision dated in November 2004, the AOJ granted service connection for residuals status post-surgical repair of medial and lateral meniscus right knee claimed as right meniscus, chondrosis right knee condition, right knee degenerative joint disease, assigning a 10 percent disability rating pursuant to DC 5259 effective January 31, 2004, the day after the Veteran was discharged from service. This 10 percent disability rating appears to have been continued by rating decision dated in April 2006. In August 2008, the Veteran filed the current claim for an increased rating and, by rating decision dated in January 2009, the 10 percent disability rating was continued. The Veteran disagreed with this decision and perfected this appeal. During the course of this appeal, the Veteran had surgery on his right meniscus on February 17, 2011 and was granted a period of convalescence from February 17, 2011 to May 1, 2011. Thereafter, a 10 percent rating was assigned under DC 5259 (cartilage, semilunar, removal of, symptomatic). In a January 2016 decision, the Board granted an increased disability rating of 20 percent for his right meniscus disability under DC 5258 (cartilage, semilunar, dislocated) as well as a separate 10 percent rating under DC 5003 (arthritis), each effective January 31, 2004 through February 17, 2011 and remanded the increased rating claims from February 17, 2011 to the present. This award was effectuated in a September 2016 rating decision. Following October 2016 right knee replacement surgery, a July 2017 rating decision granted a period of convalescence from October 5, 2016 to December 1, 2017. The AOJ assigned a 30 percent rating for the right knee status-post surgery, under DC 5055 (knee replacement, prosthesis). Thus, the Board will consider two separate periods: first, from May 1, 2011 to October 5, 2016, under the criteria for knees prior to replacement surgery. Second, since December 1, 2017, under the criteria for knees status-post replacement surgery. Legal Criteria Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability and recurrent subluxation of the knee, and meniscal disabilities. The Board will explore all possibilities in this case. 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.”). The Veteran’s knee is rated under DC 5003. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint (such as the knee) or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 0 percent (noncompensable) disability rating is assigned for flexion limited to 60 degrees, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 0 percent (noncompensable) disability rating is assigned for extension limited to 5 degrees, a 10 percent disability rating is assigned for extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Additionally, separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). In a precedent opinion by VA General Counsel, it held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. Id. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted to moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. The terms “slight,” “moderate,” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Under DC 5259, a 10 percent rating is available for removal of the semilunar cartilage (meniscus) that is symptomatic. Under DC 5258, a symptomatic meniscus is described as “locking,” pain, and effusion into the joint. Significantly, § 4.71a does not expressly prohibit separate evaluation under DC 5261 and 5259. See Lyles v. Shulkin, 29 Vet. App. 26 (2017); see also Esteban v. Brown, 6 Vet. App. 259 (1994). Applicable to this case, DC 5055 provides that prosthetic replacement of the knee joint warrants a 30 percent minimum rating. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5261 or 5262 (discussed above) or under DC 5256. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Under DC 5256, a 40 percent rating may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. 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.” The spine has no opposite 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. Evidence of Record Given that the Veteran’s period of convalescence for his right meniscus ended May 1, 2011, the Board will review the evidence from that period forward. The Veteran attended a VA knee examination in September 2011. He reported that he experienced continuous swelling and pain in his knee, locking up, and giving way. He wore a knee brace with a stabilizer and has a cane to prevent buckling. He further reported that sometimes when he is in bed, he will feel pain in the front of his knee and when he gets up from a chair, he will feel a pop in his knee. He has daily pain rated 8 out of 10 and during flares it goes to 10 during prolonged standing and walking. On range of motion testing, he had normal extension and 110 flexion. He reported discomfort in his knees, but upon repetitive testing, no additional range of motion was lost. The Veteran’s next VA examination was in June 2016. He reported a similar history as the September 2011 examination except no flare-ups or functional loss was noted. Upon range of motion testing, the Veteran’s extension was limited to 5 degrees and flexion was 65 degrees, with pain. His range of motion was limited by pain and he had difficulty ambulating. The Veteran refused to do repetitive testing due to fear of pain. Given the lack of additional testing, the examiner could not make an estimation of range of motion lost during repeated use. The Veteran had moderate loss of strength in his right knee (1/5) and some atrophy in his right leg compared to the left leg (loss of 3 cm). The Veteran reported he regularly used a cane for stability with walking and standing. The Veteran had surgery in October 2016 and was on convalescence for VA purposes until December 1, 2017. For the period from May 1, 2011 to October 5, 2016, the medical record reflects knee pain, increasing until October 2016. The same medical note was repeated in June 2013, August 2013, May 2014, and July 2015: “No effusion. Somewhat tender medial and lateral joint lines--especially medially and subpatellar. Very tender subpatellar. Great deal of popping and crepitus in knee with flexion/extension knee. Pain with range of motion knee, especially past 70 degrees flexion. Range of motion 0-110 with severe pain at max flexion. Stable MCL and LCL to valgus and varus stress. ACL and PCL stable.” No other records demonstrate a greater range of motion lost. The Veteran reported to Summit Orthopedics in August 2016, two months prior to his surgery and two months after his June 2016 VA examination. While the Veteran’s subjective complaints were the same, his range of motion was 0-110, his strength and gait were normal, and he did not have reduced strength nor was atrophy noted. In medical records after his surgery, the Veteran reported some pain and he walked with a cane, but his examinations were otherwise within normal limits. The Veteran attended a VA examination for his knees in December 2019. Significantly, this examination primarily pertained to the left knee and the Veteran made little mention of complaints of his right knee. No flare-ups or functional loss was reported and his objective examination was within normal limits. Analysis for the period from May 1, 2011 to October 5, 2016 Considering the totality of record above, the Board finds that for the entire period on appeal, the Veteran did not show symptoms which would more closely approximate a higher rating for each of his current service-connected right knee disabilities. First, regarding the Veteran’s limitation of range of motion, at worst, the Veteran has had 5 degrees of extension and 65 degrees of flexion of the right knee. Neither measurement is commensurate with a compensable rating. Therefore, a 10 percent under DC 5003 is appropriate. To warrant a higher or separate evaluation under DCs 5260 and 5261, the extension would have to be limited to 10 degrees and the flexion would be limited to 45 degrees. No medical record indicates such limitations. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, while there is some indication of increased pain on repetition, neither the medical nor lay evidence suggests that his flexion was limited to 45 degrees and extension was limited to 10 degrees, the ranges of motion needed for a higher rating. The assigned rating based on limited extension contemplate the functional impairment, i.e. lost range of motion, attributable to pain. As for flare-ups, the Veteran reported increased pain and some issues related to his meniscus (i.e. give way). The Board finds that these descriptions of flare-ups would not result in additional functional loss of range of motion. Furthermore, while the Veteran reported experiencing flare-ups during the September 2011 VA examination, he denied experiencing flare-ups during the June 2016 VA examination. As such, the Board questions whether the Veteran has really experienced regarding his right knee during this period of time. Regarding Correia, while the September 2011 and June 2016 VA examinations do not indicate whether the findings were on either active vs. passive motion and/or in weight-bearing vs. nonweight-bearing, the December 2019 VA examination found no objective evidence of pain on passive range of motion testing and no objective evidence of pain when the joint is used in non-weight bearing. The Veteran’s meniscus was removed in February 2011. The Veteran reported symptoms related to his meniscus thereafter, but there is no indication that he re-tore his meniscus such that a higher 20 percent rating under DC 5258 is warranted. By far, the greatest objective indication of a higher level of disability came in the June 2016 examination. However, just two months later, a private physician did not find a similar level of disability, which is consistent with the VA records. Therefore, to the extent that the June 2016 record may approximate a greater level of disability, the Board gives that portion of the examination little probative weight because it is inconsistent with the concurrent medical records. 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 no such ratings are available. The Board finds that the Veteran’s own report of symptomatology is credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under any potentially applicable criteria. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for higher ratings than now assigned, as explained and discussed above. Thus, his claims for increased ratings under DCs 5259 and 5003 are denied. In denying such ratings, 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. Analysis for the period since December 1, 2017 As explained above, the Veteran underwent right knee replacement surgery on October 5, 2016. From October 5, 2016 to December 1, 2017, the Veteran was granted a total disability rating for a period of convalescence based on this surgery. This period is considered a full grant of benefits sought and are therefore not under consideration by the Board. Beginning December 1, 2017, the Veteran’s right knee has been rated 30 percent disabling under DC 5055, which is the minimum rating following a total knee replacement. All records after December 1, 2017 indicate some pain, but no limitation in motion or instability. Given the foregoing, the Board finds that a rating in excess of the 30 percent rating assigned pursuant to DC 5055 is not warranted. In order to warrant a higher rating under DC 5055, the medical evidence must show chronic residuals consisting of severe painful motion or weakness in the right leg. The December 2019 VA examination showed full range of motion and that the Veteran has no residual weakness, evidenced by his full muscle strength results upon muscle strength testing, as well as lack of instability on testing. The medical evidence of record, including the December 2019 VA examination, does not contain any additional complaints of the Veteran’s right knee “giving way” or “buckling” that could be interpreted as weakness or instability (even if they did, the Veteran is separately compensated under DC 5259 for these symptoms). Further, treatment records corroborate these findings. While the Board concedes that the Veteran has pain, the existence of pain alone does not necessarily equate to limitation of motion, in so far as along with pain, the Veteran must also have resulting functional loss due to pain, which is not present in the medical evidence of record. See Tedesco v. Wilkie, 31 Vet. App. 360 (2019) (holding that the reference to “severe painful motion” in the criteria for a 60 percent rating under DC 5055, is not synonymous with “limitation of motion,” although limitation of motion may be considered in evaluating painful motion). As mentioned above, under DC 5055, the Veteran’s disability may also be rated under analogy under DCs 5256, 5261, or 5262. However, the medical evidence of record does not demonstrate evidence of ankylosis, limitation of extension to 30 degrees, or an impairment of the tibia or fibula resulting in loose motion and requiring a brace, as required by those diagnostic codes. Thus, higher ratings are not warranted under any of these additional diagnostic codes. The Board finds that the Veteran’s own report of symptomatology is credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under any of the potentially applicable criteria. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for a higher rating than now assigned, as explained and discussed above. Accordingly, the Board finds that a preponderance of the evidence is against a rating in excess of 30 percent for the right knee replacement since December 1, 2017. In denying such ratings, 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. A compensable disability rating for a right knee scar is denied. The Veteran contends that he is entitled to a compensable disability rating for the scars of his right knees. As above, service treatment records show that the Veteran tore his right knee meniscus during service and underwent surgical repair in October 2002. The Veteran submitted an initial claim for service connection for a right knee disability in April 2004 and, by rating decision dated in November 2004, the AOJ granted service connection for a scar of the right knee, assigning a noncompensable disability rating pursuant to DC 7802 effective January 31, 2004, the day after the Veteran was discharged from service. In August 2008, the Veteran filed the current claim for an increased rating and, by rating decision dated in January 2009, the noncompensable disability rating was continued. The Veteran disagreed with this decision and perfected this appeal. The Veteran’s right knee scar is currently rated under DC 7802. Since the Veteran’s application in August 2008, the diagnostic codes related to scars have been amended three times: the rating criteria for scars were amended on August 30, 2002, October 23, 2008, and August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, DC 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, DC 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 was otherwise unchanged by the August 13, 2018, amendments. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under DC 7802 because the Veteran’s right knee is not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. The most probative evidence is from the December 2019 VA scar examination. None of his three right knee scars were tender, unstable, or had underlying soft tissue damage. In total, the examiner estimated that total area to be 8.6 square centimeters. At most, the Veteran has reported that when his knee hurt, his scars became itchy The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran’s right knee scars are not of the head, face, or neck, are not deep and non-linear, and are not associated with underlying soft tissue damage. Moreover, the Veteran’s right knee scars are not unstable or painful. Therefore, DCs 7800, 7801, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under DCs 7800-04 as contemplated under both pre-and post-August 13, 2018, DC 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include itchiness and the reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, medical treatment records do not show that the Veteran’s right knee scar is manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his right knee scars. 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. 5. An initial compensable disability rating for bilateral hearing loss is denied. The Veteran was granted service connection for bilateral hearing loss effective August 29, 2008, the date of his claim for benefits. A January 2009 rating decision assigned a noncompensable disability rating effective August 29, 2008. He contends that he has difficulty hearing in crowded rooms. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. In this regard, regulations provide that where the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, or when the puretone 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 will be evaluated separately. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran has attended several VA examinations that address his hearing ability. In November 2008, audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 35 40 32.5 LEFT 40 45 50 55 47.5 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and 94 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I for both ears. Using the numeric designation of I for both ears, this results in a noncompensable rating under Table VII. In September 2011, audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 15 30 20 LEFT 15 20 15 15 16.25 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and 100 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I for both ears. Using the numeric designation of I for both ears, this results in a noncompensable rating under Table VII. In June 2016, audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 15 25 21 LEFT 25 15 20 35 24 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 98 percent in the right ear and 96 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I for both ears. Using the numeric designation of I for both ears, this results in a noncompensable rating under Table VII. The most recent examination was in December 2019. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 15 30 25 35 26 LEFT 15 25 35 35 28 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 94 percent in both ears. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I for both ears. Using the numeric designation of I for both ears, this results in a noncompensable rating under Table VII. At the various examinations, the Veteran has reported difficulty hearing in noisy environments and group situations, having to ask people to repeat themselves, and struggling to hear conversations clearly. In August 2016, the Veteran reported difficulty hearing due to tinnitus and experiencing other symptoms related to wax build up in his ears. These are separate conditions apart from hearing loss. Based on the above, the Board finds that the claim must be denied. The Board emphasizes that the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Using the prescribed tables, the Veteran’s hearing loss is not of a severity that warrants a compensable evaluation. The Veteran’s report of difficulty hearing is acknowledged; however, this is reflective of the type of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examinations of record are afforded great probative value in determining the Veteran’s level of hearing impairment. The most probative medical evidence as to the nature of the Veteran’s bilateral hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant entitlement to a compensable rating. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). April Maddox Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.