Citation Nr: 21061963 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-05 878 DATE: October 6, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent under Diagnostic Code (DC) 5260 for right knee internal derangement; status post medical collateral ligament and anterior cruciate ligament repairs is denied. Entitlement to a separate 10 percent rating for right knee instability under Diagnostic Code (DC) 5257 is granted, from January 30, 2018, subject to the laws and regulations governing monetary awards. FINDINGS OF FACT 1. During the period on appeal, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level II in the right ear and Level III in the left ear. 2. During the period on appeal, the Veteran's right knee internal derangement; status post medical collateral ligament and anterior cruciate ligament repairs was manifested by painful limitation of motion no worse than 0 degrees extension to 110 degrees flexion, with subjective complaints of instability on certain surfaces and on standing after prolonged sitting with use of a right knee brace for extra support. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for bilateral hearing loss 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 (DC) 6100. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee internal derangement; status post medical collateral ligament and anterior cruciate ligament repairs have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, DC 5260. 3. The criteria for entitlement to a separate 10 percent rating, but no greater, for right knee instability have been met from January 30, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to November 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). Procedural History At the outset, the Board notes this case has a significant procedural history. Of relevance, service connection was granted for a right knee disability and bilateral hearing loss in a June 2013 rating decision from which the Veteran timely submitted an April 2014 Notice of Disagreement. The RO issued a May 2016 Statement of the Case (SOC). VA did not receive a timely substantive appeal following the May 2016 SOC. The Veteran appealed to the Board with a May 2017 VA Form 9 contending that neither he nor his representative received the May 2016 SOC. The Board issued an October 2019 decision finding the Veteran's May 2017 substantive appeal regarding the June 2013 rating decision was untimely. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC or "the Court"). The parties filed a July 2020 Joint Motion for Remand (JMR) which was granted by the Court in a July 2020 Order, thereby vacating and remanding the Board's October 2019 decision for additional reasons or bases. The matters returned to the Board prompting a December 2020 decision again finding the Veteran's May 2017 substantive appeal was untimely and the June 2013 rating decision was final. Simultaneously during the pendency of the Veteran's appeal to the Court, the Veteran filed an increased rating claim for the right knee and bilateral hearing loss which VA received on January 30, 2018. In response to the January 2018 increased rating claim, the RO issued a May 2018 rating decision, denying an increased rating for the right knee and continuing a noncompensable rating for bilateral hearing loss. The Veteran timely appealed and the substantive appeal was perfected and certified to the Board. Accordingly, as part of the December 2020 decision, the appeal streams were merged, and these increased rating claims were remanded for additional development. The Board finds substantial compliance with the Board's December 2020 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters have now returned for additional review. The Board finds, based on the above, the period on appeal considered herein begins January 30, 2018, the date of receipt of the Veteran's increased rating claims, or up to one year prior to VA's receipt of the claim, to the extent an increase in severity is factually ascertainable. See 38 C.F.R. § 3.400(o)(2). As part of the December 2020 Board decision, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions was remanded. Following the additionally directed development, the RO issued a June 2021 rating decision granting TDIU from January 30, 2018, the date of receipt of the Veteran's increased rating claim. The RO's award of TDIU based on the date of receipt of the Veteran's increased rating claim is considered a full grant of the benefit sought; thus, this issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 C.F.R. § 3.400. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to a compensable disability rating for bilateral hearing loss is denied. The Veteran contends his bilateral hearing loss should be assigned a compensable disability rating. The Board finds a compensable rating is not warranted. The Veteran is service connected for bilateral hearing loss with a noncompensable disability rating under DC 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Here, as mentioned above, the Veteran was granted service connection for bilateral hearing loss in a June 2013 rating decision from which the Veteran timely appealed but did not perfect to the Board. Thus, per the December 2020 Board decision, the June 2013 rating decision became final as the Veteran's substantive appeal was untimely. Thereafter, VA received the Veteran's increased rating claim for bilateral hearing loss on January 30, 2018. Accordingly, the Board will consider the period on appeal beginning January 30, 2018, or up to one year prior to receipt of the Veteran's increased rating claim if there is a factually ascertainable increase in severity. Turning to the relevant evidence of record, in July and December 2017, the Veteran declined experiencing decreased hearing. See July and December 2017 non-government treatment records. In March 2020, the Veteran underwent a hearing aid evaluation with audiometric results revealing a mild sloping to severe sensorineural hearing loss bilaterally with SRT levels of 30 dB HL in the right and 35 dB HL in the left. See March 2020 VA treatment records. An 88 percent word discrimination score in the right ear and 96 percent in the left ear was revealed. The Veteran was afforded a VA examination in March 2018 during which the Veteran reported difficulty understanding people talking. See March 2018 VA examination. The examiner opined that the Veteran's hearing loss impacts his daily life and ability to work due to difficulty understanding people talking. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 13, 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 65 70 56.25 88% LEFT 35 60 70 75 60 88% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Accordingly, based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's lay statements of experiencing difficulty hearing other people. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. 345. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). While the Board has considered the audiogram results from March 2020 VA treatment records, it is unclear from the record whether the word discrimination scores were for the Maryland CNC and the puretone threshold average for each ear was not provided. Thus, the Board finds the March 2020 audiometric evaluation is not adequate for rating purposes under § 4.85(a). Remand, however, is not necessary for another VA examination because the March 2018 VA examination is adequate for rating purposes. The Board has also considered whether there was a factually ascertainable increase in severity of bilateral hearing loss in the year prior to January 30, 2018, however, the record lacks evidence of worsening. Indeed, the Veteran himself declined experiencing decreased hearing in July and December 2017. The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent for right knee internal derangement; status post medical collateral ligament and anterior cruciate ligament repairs is denied. 3. Entitlement to a separate 10 percent rating for right knee instability under DC 5257 is granted, from January 30, 2018, subject to the laws and regulations governing monetary awards. The Veteran contends his right knee disability should be assigned a higher disability rating. The Veteran is currently rated as 10 percent disabled under DC 5260 for right knee internal derangement; status post medical collateral ligament and anterior cruciate ligament repairs. As previously mentioned, the Veteran was granted service connection for the right knee in a June 2013 rating decision from which the Veteran timely appealed but did not perfect to the Board. Thus, per the December 2020 Board decision, the June 2013 rating decision became final as the Veteran's substantive appeal was untimely. Thereafter, VA received the Veteran's increased rating claim for the right knee on January 30, 2018. Accordingly, the Board will consider the period on appeal beginning January 30, 2018, or up to one year prior to receipt of the Veteran's increased rating claim if there is a factually ascertainable increase in severity. Throughout the entire period on appeal, the Board finds an increased rating under DC 5260 is not warranted. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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." 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. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under pre-amended DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under pre-amended DC 5262, a 10 percent rating is warranted for malunion of the 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 maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). The Board notes that the terms "slight," "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 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. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Turning to the relevant evidence of record, imaging in March 2020 revealed minimal degenerative changes in the right knee. See March 2020 VA treatment records. During the period on appeal, the Veteran was afforded multiple VA examinations to determine the severity of his right knee disability, the first of which occurred in March 2018. See March 2018 VA examination. The examiner noted a diagnosis of right knee internal derangement status post medial collateral ligament and anterior cruciate ligament repairs. The Veteran reported experiencing flare-ups where his knee "will pop out" on unstable or slippery surfaces, an inability to kneel down, and lockup. The right knee "pops out" 3-4 times a week. Functional loss or impairment was described as watching for "bad surfaces" and pain with standing for periods of time. Range of motion (ROM) testing revealed normal results with 0 to 140 degrees flexion and 140 to 0 degrees extension. There was pain noted on examination on rest / with non-movement. There was objective evidence of localized tenderness or pain on palpitation of the joint over the anterior knee. There was no evidence of pain with weight bearing. Evidence of crepitus was found. Repetitive use testing was able to be completed without additional loss of function or ROM. The examiner noted the examination did not occur during flare-ups and the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-up. Pain was noted to contribute to the disability. Muscle strength testing was normal without atrophy. Ankylosis was not found. A history of recurrent subluxation or lateral instability was not indicated. Recurrent effusion was not found. Joint stability testing was completed revealing normal results. A meniscal condition was not found. Use of an assistive device was not indicated. The examiner opined that the Veteran's right knee disability impacts occupational tasks in that the Veteran should avoid jumping and running. There was no evidence of pain on passive ROM testing or with non-weight bearing. During a March 2020 VA examination, the examiner noted a diagnosis of right knee anterior cruciate ligament tear, right knee instability, and right patellofemoral pain syndrome. See March 2020 VA examination. The Veteran reported experiencing right knee pain for the past 18 months with patellar grinding indicating patellofemoral disease chondromalacia. The examiner indicated instability developed almost a decade following service when the Veteran was diagnosed with internal derangement requiring open right ACL and medial collateral repair. The Veteran reported intermittent pain and right knee locking with flexion. Flare-ups were reported as intermittent pain and right knee locking with flexion. The Veteran did not report any functional loss or impairment with repeated use over time. Initial ROM testing revealed abnormal results with 0 to 135 degrees flexion and 135 to 0 degrees extension. Pain was not noted on examination. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpitation. The examiner indicated objective evidence of crepitus was present. Repetitive use testing was completed without additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. Muscle strength testing was normal. Muscle atrophy and ankylosis were not found. A history of recurrent subluxation, lateral instability, and recurrent effusion were not found. Joint stability testing was performed with normal results. A meniscal condition was not indicated. Use of an assistive device was not reported. The examiner opined that the Veteran's right knee disability does not impact his ability to perform occupational tasks. The examiner opined that there was no evidence of pain on passive ROM testing and with non-weight bearing. The Veteran most recently was afforded a VA examination in April 2021 during which a diagnosis of right knee internal derangement status post medial collateral ligament and anterior and cruciate ligament repairs was noted. See April 2021 VA examination. The Veteran reported his condition has progressed / worsened. He reported experiencing continued throbbing, knee locking up, feeling like the knees "pop-out," and instability getting up from sitting. Flare-ups were reported as occurring four times a day for forty minutes with throbbing, shooting spikes of pain, popping, locking, and feelings of unsteadiness rising from sitting. Precipitating factors were noted to be sitting and standing for a long period of time worsening pain and over activity including with walking and jogging. Alleviating factors include medication and use of a brace. The Veteran reported having functional loss or impairment with repeated use described as not being as active due to intense right knee pain, only able to make a bed and complete light activities. He reported being unable to stand or sit for a long period of time and has to limit his walking and activities throughout the day. He must rest frequently, cannot run or jog, and has difficulty using the stairs. The Veteran reported having a history of instability / recurrent subluxation as feeling like his knee pops and gives out leaving him feeling "wobbly" and has to grab something to regain balance. Initial ROM testing revealed flexion of 120 degrees and extension to 0 degrees. Pain was noted with flexion and the decreased ROM limited activities of daily living. There was evidence of pain with weight-bearing, non-weight-bearing, active motion, and passive motion which causes functional loss noted as inability to sit or stand for a long period of time, limited walking and activities during the day, frequent rest, inability to run or jog, difficulty getting up from sitting requiring support, and difficulty using the stairs. There was no objective evidence of crepitus. There was objective evidence of localized tenderness or pain of a moderate severity. Observed repetitive use testing was completed with flexion limited to 115 degrees and extension of 0 degrees. Pain, fatigability, and lack of endurance were noted to cause functional loss with observed repetitive use. The examiner noted pain, fatigability, weakness, lack of endurance, and incoordination causes functional loss with repeated use over time limiting flexion to 110 degrees and extension to 0 degrees. Regarding flare-ups, the examiner opined that pain, fatigability, weakness, lack of endurance, and incoordination causes functional loss with flare-ups limiting flexion to 110 degrees and extension to 0 degrees. Muscle atrophy and ankylosis were not indicated. A history of recurrent subluxation, persistent instability, and recurrent patellar instability were not indicated. The examiner noted the Veteran did not require a prescription for an assistive device but did use a brace regularly. The Veteran was not diagnosed with recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. A meniscal condition was not indicated. The examiner opined the Veteran's right knee disability impacted his ability to perform occupational tasks as the Veteran has a decreased level of activity due to pain and the condition itself. The Veteran experiences intense right knee pain, throbbing, and stabbing with limited ROM and feels loss of balance limits the ability to perform activities such as sitting, standing, and walking for a long period of time. The examiner noted he is only able to make a bed and complete "light" activities. He is limited in walking and completing activities throughout the day and has to rest frequently. He cannot run or jog, has difficulty using stairs or curbs, and has difficulty getting up from sitting. The Board finds the April 2021 VA examination is sufficient to determine the extent and severity of the Veteran's right knee disability when taken together and considered with the entire evidence of record including the additional VA examinations. The requirements of DeLuca, Correia, and Sharp were all addressed by the examiner as well as the Veteran's own descriptions of his limitations which were taken into account when determining functional impact and additional loss in terms of ROM with repetitive use over time. Flare-ups were noted with symptoms of increased pain depending on use and additional functional loss in terms of ROM was provided. While the March 2018 VA examiner noted the Veteran experiences flare-ups, the examiner did not provide an additional ROM loss estimate during flare-ups stating that it would require speculation and the examiner failed to provide alleviating and precipitating factors. As such, the Board will rely upon the April 2021 VA examiner's ROM loss estimate during flare-ups for the entire period on appeal as the Veteran's statements regarding flare-ups have remained fairly consistent from the 2018 VA examination through the 2021 VA examination. Additionally, while the March 2020 VA examiner opined that the Veteran's ROM was not decreased during flare-ups and the Veteran did not experience additional functional impairment regarding occupational tasks, the Board finds the Veteran has consistently reported experiencing symptoms reflecting restricted mobility and an impact on his occupational tasks. Accordingly, the Board finds the April 2021 VA examination most probative for the entire period on appeal. Regardless, however, all of the VA examinations of record reflect the Veteran has been appropriately rated as 10 percent disabiled under DC 5260 for painful motion under 38 C.F.R. § 4.59, as the Veteran's right knee ROM remains noncompensable under DC 5260 even considering the most limited ROM estimate. Further, the 2018 and 2020 VA examinations can still have probative value especially considering the Veteran's lay statements of symptoms during the examinations. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding "Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). Based on the evidence of record, throughout the entire period on appeal, the Board finds a rating in excess of 10 percent under DC 5260 is not warranted, nor was there a factually ascertainable increase in severity during the year prior to January 30, 2018. During this time, the Veteran was rated as 10 percent disabled under 38 C.F.R. § 4.59 for painful motion because his ROM was noncompensable under DC 5260. Indeed, the Veteran competently and credibly reported experiencing pain in the right knee throughout this period. Thus, the Veteran has been appropriately rated as 10 percent disabled. A compensable rating of 10 percent disabling under DC 5260 is awarded for flexion of the leg limited to 45 degrees. Here, even considering the April 2021 VA examiner's most limited ROM, the Veteran's flexion was estimated to be 110 degrees flexion during flare-ups. Indeed, none of the VA examinations of record have found the Veteran's flexion limited to 45 degrees. Thus, the Board relies upon the Veteran's competent and credible reports of pain with movement to continue a 10 percent disability rating under 38 C.F.R. § 4.59 and finds the preponderance of the evidence is against a compensable rating under DC 5260 for limited flexion during this period. The Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg during this period. 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, 6 Vet. App. at 261-62; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board has considered a separate rating under pre-amended and amended DC 5257, for recurrent subluxation or lateral instability. While the Veteran has consistently stated that his knee "gives out" and "locks" especially getting up from a chair, stability testing was completed during the 2018 and 2020 VA examinations and such testing was normal. Indeed, although the Veteran has had surgery to repair ligament damage in the past, all medical evidence consistently indicates the surgery was fully successful and he has not needed surgery since this 1980s surgical intervention. Under the pre-February 7, 2021, criteria for DC 5257, the Court determined in English v. Wilkie, that objective medical evidence is not required to establish lateral knee instability so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Given English, the Board has carefully considered the Veteran's lay evidence throughout the appellate time frame describing his feeling of popping in the knee when he is on an unstable surface, wanting to avoid unstable or slippery surfaces, and feeling instability when standing up after sitting for a long time. The Veteran also wears a brace on his right knee for extra support. Again, the examiners have consistently noted his ligaments are normal, fully stable, and that surgical repair in the 1980s was completely successful in repairing his ligament. Even so, resolving all reasonable doubt in favor of the Veteran and in light of his consistent complaints throughout the appellate time frame, the Board will award a separate 10 percent for his feelings of instability after sitting for prolonged periods and on unstable surfaces, but no higher. The Veteran's subjective complaints amount to at least a "slight" instability notwithstanding normal objective findings. The Board finds no basis, however, to conclude a "moderate" or more severe instability rating is warranted given that objective testing has consistently been normal, and the Veteran's subjective complaints are limited to only certain circumstances causing his feelings of instability namely standing after prolonged sitting or when he is on slippery or other unstable surfaces. Thus, the Board finds in addition to his 10 percent rating under DC 5260, a separate 10 percent rating for "slight" subjective feelings of instability under DC 5257 is warranted from January 30, 2018. Regarding amended DC 5257, as outlined above, the VA examiners and other objective medical examinations have consistently ruled out any instability and noted that the Veteran's 1980s ligament repair was fully successful. Additionally, the record lacks any indication that the Veteran's use of a brace was prescribed. As such, a separate rating (much less a higher rating) under the amended DC 5257 is not warranted. The remaining other potential diagnostic codes are inapplicable here because there is no medical evidence in support. The Veteran's right knee is not ankylosed (i.e., frozen); therefore, DC 5256 is not for application. While the records lack any diagnosis of ankylosis and all of the VA examiners found the Veteran's right knee was not ankylosed, consideration must still be given to whether he is functionally ankylosed in the right knee. Chavis v. McDonough, 34 Vet. App. 1, 20 (2021) (holding that consideration must still be given to whether a claimant's functional loss "is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran has not contended, nor does the record reflect, his right knee is immobile. While he has reported limitations in activities including walking, standing, using stairs, and sitting, he still maintains mobility in the right knee. The right knee disability does not affect the tibia, fibula, or genu recurvatum; therefore, pre-amended and amended DC 5262 and DC 5263 are not for application. The record contains some support that the Veteran in the past had a meniscectomy, so the Board considered whether the Veteran is also entitled to a separate rating under DC 5258 or DC 5259 but finds the overall medical evidence does not support such a separate rating is warranted. Whether or not the Veteran had a meniscectomy at some point in the past, all examiners indicate the Veteran does not currently have a meniscus condition. The Veteran has complained of feeling his knee "locks," but such complaints have been considered in resolving the benefit of the doubt and affording the Veteran a separate rating for instability as outlined above. There is no indication his complaints of "locking" and "pain" are separate and distinct from the ratings already in place and, therefore, a separate rating under DC 5258 or DC 5259 in this case would constitute impermissible pyramiding as he is already compensated for the pain causing limited motion and functional impairment and feelings of instability. Thus, there is no basis to award a separate rating under DC 5258 or DC 5259. Regarding DC 5261, a higher disability rating would not be achieved through limitation of extension as the most limited ROM estimate during flare-ups was not limited to 15 degrees extension. 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 the right knee from January 30, 2018, under DC 5260, as the Veteran's flexion was, at worse, limited to 110 degrees, even considering his complaints of functional limitations during flare-ups and due to pain. His 10 percent rating under that diagnostic code, therefore, is primarily awarded due solely to the painful motion pursuant to 38 C.F.R. § 4.59. Resolving all reasonable doubt in favor of the Veteran, the Board concludes a separate 10 percent rating, but no higher, is also warranted under DC 5257 for slight instability because although there are no objective indications of recurrent subluxation or instability, the Veteran has consistently, throughout the appellate time frame, indicated complaints of locking and feeling unstable on certain surfaces and after prolonged sitting; it is well-documented he wears a right knee brace for extra support. The Board has considered all other diagnostic codes as outlined above and finds them not applicable and that the Veteran's disability is fully capable of evaluation under the rating schedule. (Continued on the next page) In denying any further increased or separate 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. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate 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.