Citation Nr: 21062946
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 16-26 082
DATE: October 12, 2021

ORDER

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to a non-initial rating in excess of 50 percent prior to December 5, 2020 for posttraumatic stress disorder (PTSD) is denied.

From December 5, 2020 onward, a non-initial 70 percent rating, but no higher, for PTSD is granted.

Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied.

Entitlement to a non-initial compensable rating for bilateral hearing loss is denied.

Entitlement to a non-initial rating in excess of 10 percent for tinnitus is denied.

Entitlement to an initial rating in excess 30 percent of for sinusitis is denied.

Entitlement to an initial rating in excess of 10 percent for allergic rhinitis is denied.

An initial rating of 10 percent, but no higher, for reactive airways dysfunction syndrome is granted.

Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied.

A non-initial rating of 20 percent, but no higher, for a left knee disorder is granted.

Entitlement to an initial rating in excess of 10 percent for left knee instability is denied. 

Entitlement to a non-initial rating in excess of 10 percent for right hand hamate fracture is denied. 

Entitlement to a non-initial compensable rating for a scar of the right hand is denied.

Entitlement to a non-initial compensable rating for a scar of the left knee is denied.

Entitlement to an initial compensable rating for a deep and nonlinear scar of the left knee is denied.

Entitlement to an effective date for 10 percent rating prior to October 25, 2014 for residuals of right-hand hamate bone fracture is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that sleep apnea began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 

2. The preponderance of the evidence is against finding that hypertension began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 

3. The preponderance of the evidence is against finding that a right knee disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 

4. Prior to December 5, 2020, the Veteran's PTSD is manifested by depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances, including work or worklike setting; and inability to establish and maintain effective relationships.

5. From December 5, 2020 onward, the Veteran's PTSD is manifested by depressed mood; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships.

6. The Veteran's migraine headaches are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

7. The Veteran's bilateral hearing loss is at worst Level I in the right ear and Level I in the left ear.

8. The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or a bilateral condition. 

9. The Veteran's sinusitis is not manifested by radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.

10. The Veteran's rhinitis is not manifested by polyps.

11. The Veteran's reactive airway dysfunction syndrome is manifested by the ratio of FEV-1/FVC of 71 to 80 percent.

12. The Veteran's GERD is not manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

13. The Veteran's left knee disorder is manifested by symptoms of meniscal tear with frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. 

14. The Veteran's left knee instability is observed to be slight and is at no time during the appeal observed to be moderate.

15. The Veteran's residual of right-hand hamate fracture is not manifested by ankylosis.

16. The Veteran's right-hand scar is not manifested by an area or areas of 144 square (sq.) inches (929 square centimeters (cm.)) or greater.

17. The Veteran's left knee scars are not manifested by an area or areas of 144 sq. inches (929 sq. cm.) or greater.

18. The Veteran's left knee deep non-linear scar is manifested by an area or areas less than 6 sq. inches (39 sq. cm.).

19. It is not factually ascertainable that an increase in the Veteran's service-connected residuals of right-hand hamate bone fracture occurred prior to October 25, 2014.

CONCLUSIONS OF LAW

1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. Prior to December 5, 2020, the criteria for a non-initial rating in excess of 50 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 

5. From December 5, 2020 onward, the criteria for a non-initial rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411.

6. The criteria for an initial rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100.

7. The criteria for a non-initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86 Diagnostic Code 6100.

8. The criteria for a non-initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.

9. The criteria for an initial rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.97, Diagnostic Code 6512.

10. The criteria for an initial rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.97, Diagnostic Code 6522.

11. The criteria for an initial 10 percent rating, but no higher, for reactive airway dysfunction syndrome have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.96, 4.97, Diagnostic Code 6602.

12. The criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.114, Diagnostic Code 7346.

13. The criteria for a non-initial 20 percent rating, but no higher, for left knee disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263.

14. The criteria for an initial rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263.

15. The criteria for a non-initial rating in excess of 10 percent for residuals of right-hand hamate fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, DC 5215.

16. The criteria for a non-initial compensable rating for scarring associated with the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7802, 7805.

17. The criteria for a non-initial compensable rating for scarring associated with the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7802, 7805.

18. The criteria for an initial compensable rating for deep and nonlinear scarring associated with the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7801.

19. The criteria for the assignment of an effective date prior to October 25, 2014, for the award of a 10 percent evaluation for residuals of right-hand hamate bone fracture have not been met. 38 U.S.C. §§ 5110, 5103A; 38 C.F.R. §§ 3.159, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from July 1975 to January 1995.

These issues were remanded by the Board in a November 2018 decision for further development. The issues have since returned to the Board for appellate review. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990).

1. Entitlement to service connection for sleep apnea is denied.

The Veteran asserts that he is entitled to service connection for sleep apnea on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's sleep apnea did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis.

On the November 1978 service treatment record (STR) report of medical history, the medical provider indicated he did not experience frequent trouble sleeping. 

On the December 1978 STR report of medical history, the Veteran indicated he did not know if he experienced frequent trouble sleeping.

On the February 1988 STR report of medical history, the Veteran indicated he did not experience frequent trouble sleeping. 

In an October 1989 STR examination, the Veteran indicated he does not experience inability to sleep. 

On the March 1993 STR periodic report of medical history, the Veteran indicated he does not have frequent trouble sleeping. 

On the November 1994 STR separation report of medical history, the Veteran indicated he does not have frequent trouble sleeping. 

In a July 2013 VA treatment record the Veteran complained of insomnia. He stated was treated with prescribed medication for insomnia in the past. He stated he experiences stress related to finances and divorce and the stress makes it difficult for him to sleep. 

In a July 2014 VA treatment record, the medical provider stated the Veteran was diagnosed with sleep apnea that year.

In a July 2014 VA treatment record, the Veteran stated he has had symptoms of sleep apnea for many years. He stated his symptoms of snoring loudly, difficulty with memory, difficulty with concentration, and difficulty with focus worsened over the past six months. 

On the June 2015 VA sleep apnea examination, the examiner indicated the Veteran has a diagnosis of sleep apnea from June 2014. The Veteran stated that he has a prolonged history of sleep apnea symptoms. The Veteran stated he reported a 40-pound weight gain in the past one to two years. 

The June 2015 VA examiner opined that the Veteran's sleep apnea is less likely than not caused by service. The examiner reasoned that the Veteran was first diagnosed with sleep apnea 17 years after separation from service. The examiner noted the Veteran stated symptoms began many years prior but was not able to state when. The examiner found the Veteran has multiple risk factors for sleep apnea, which include excess weight; neck circumference; narrowed airway; gender; aging; positive family history; and prior smoker. The examiner stated the Veteran's sleep apnea is more likely due to risk factors which were genetic, or which occurred due to lifestyle after military service.  

Based on the foregoing, there is no evidence that the Veteran's sleep apnea was manifested in service or to a compensable degree in the first year following his separation from service. The first indication of sleep apnea occurred in 2014, over 10 years after separation from service. Consequently, service connection for a sleep apnea on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from sleep apnea continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). 

There is also no evidence that the Veteran's sleep apnea is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his sleep apnea to service. The only competent evidence in the record that addresses this question is the June 2015 VA medical opinion, which stated that the Veteran's sleep apnea was not related to his service. As there is no other evidence to the contrary, and the June 2015 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. 

Further, the Veteran's own statements relating his sleep apnea to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether sleep apnea, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, sleep apnea is a disease of the respiratory system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. 

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. Accordingly, it must be denied.

2. Entitlement to service connection for hypertension is denied.

The Veteran asserts that he is entitled to service connection for hypertension on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's hypertension did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis.

On the November 1978 STR reenlistment examination, the medical provider indicated the Veteran's vascular system is normal with blood pressure of 110/78. On the November 1978 reenlistment report of medical history, the Veteran indicated he did not experience high or low blood pressure. 

On the December 1978 STR report of medical history, the Veteran indicated he did not know if he experienced high or low blood pressure. 

On the November 1981 STR reenlistment examination, the medical provider indicated the Veteran's vascular system is normal and documented the Veteran's blood pressure to be 130/64. On the November 1981 report of medical history, the Veteran indicated he did not experience high or low blood pressure. 

In a June 1985 STR the Veteran's blood pressure is 130/70. 

On the February 1988 STR report of medical history, the Veteran indicated that he did not experience high or low blood pressure. 

On the February 1988 STR reenlistment examination, the medical provider indicated the Veteran's vascular system is normal and documented the Veteran's blood pressure to be 123/84. 

In a July 1989 STR, the Veteran's blood pressure is 120/80. 

On the October 1989 STR examination, the Veteran's blood pressure is documented as 118/66. The medical provider observed the Veteran's vascular system to be normal. 

On the March 1993 STR periodic examination, the medical provider indicated the Veteran's vascular system is normal and documented the Veteran's blood pressure to be 120/70. 

In a July 1993 STR, the Veteran's blood pressure is 117/69. 

In an August 1994 STR, the Veteran's blood pressure is 135/75. 

In an October 1994 STR, the Veteran's blood pressure is 147/81. 

The November 1995 STR separation examination documents the Veteran's blood pressure to be 118/90. The medical provider indicated the Veteran's vascular system is normal. 

On the June 2015 VA hypertension examination, the examiner indicated the Veteran has a diagnosis of hypertension from June 2015. The examiner stated there is no indication of elevated blood pressure in the Veteran's STR. The examiner noted a 2012 VA treatment record, the examiner noted the Veteran's initial blood pressures were repeatedly elevated. The examiner stated that the Veteran has demonstrated generally elevated blood pressure readings since VA treatment records in 2012. The examiner stated that further review of blood pressure levels are generally congruent with weight fluctuations. He examiner noted that the Veteran has purposely been losing weight and the blood pressure is normalizing. The examiner stated that the Veteran is not on medication at this time and his blood pressure readings on the examination and last visit were normal. The examiner indicated that the Veteran's hypertension is presently controlled by lifestyle modification. 

The June 2015 VA examiner opined that the Veteran's hypertension is less likely than not caused by service. The examiner reasoned that the STRs have no evidence to conclude the Veteran developed hypertension during military service. The examiner stated that evidence indicates that the Veteran developed hypertension after military service. The examiner stated the Veteran's hypertension is most likely related to risk factors of weight, age, and past history of cigarette smoking. The examiner noted the Veteran was obese at the time of initial chronically elevated blood pressure, over the age of 50, and although the Veteran is a past smoker, until 2000 the Veteran had a 40 to 50 pack year history of cigarettes smoking. 

Based on the foregoing, there is no evidence that the Veteran's hypertension was manifested in service or to a compensable degree in the first year following his separation from service. The fist findings of hypertension occurred in 2012, over 10 years after separation form service. Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from hypertension continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). 

There is also no evidence that the Veteran's hypertension is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his hypertension to service. The only competent evidence in the record that addresses this question is the June 2015 VA medical opinion, which stated that the Veteran's hypertension was not related to his service. As there is no other evidence to the contrary, and the June 2015 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. 

Further, the Veteran's own statements relating his hypertension to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether hypertension, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, hypertension is a disease of the vascular system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. 

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. Accordingly, it must be denied.

3. Entitlement to service connection for a right knee disorder is denied. 

The Veteran asserts that he is entitled to service connection for a right knee disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's right knee disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis.

On the December 1978 STR report of medical history, the Veteran indicated he did not know if he experienced trick or locked knee. 

On the November 1981 STR reenlistment examination, the medical provider indicated the Veteran's lower extremities are normal. On the November 1981 report of medical history, the Veteran indicated he experienced trick or locked knee. 

On the November 1981 STR reenlistment examination, the medical provider observed the Veteran's lower extremities to be normal. 

In an August 1985 STR, the Veteran complained of left knee pain resulting from an injury from playing basketball. The medical provider assessed the Veteran to have a medical collateral ligament (MCL) sprain and prescribed crutches. 

In a July 1986 the Veteran complained of knee pain and swelling in the left knee. 

In a November 1986 STR, the Veteran complained of prior left knee trauma. The medical provider found the Veteran to be clear for physical training. 

On the February 1988 STR report of medical history, the Veteran indicated he did not experience trick or locked knee. 

On the February 1988 STR reenlistment examination, the medical provider observed the Veteran's lower extremities to be normal. The medical provider recommended the Veteran to have a consultation with orthopedics with imaging.

On the October 1989 STR examination, the medical provider observed the Veteran's lower extremities to be normal. 

In a May 1992 STR, the Veteran sought follow-up treatment for left knee dislocated patella.

In a July 1992 STR, the Veteran complained of symptoms in the left knee. However, the medical provider evaluated the right knee and noted swelling and limited range of motion. 

In a June 1993 STR, the Veteran complained of left knee pain and swelling. 

In a January and February 1993 STR, the Veteran was treated for left knee symptoms. The Veteran's chief complaint was pain, instability, and swelling of the left knee. The Veteran underwent imaging and surgery to the left knee in January 1993. 

In a March 1993 STR periodic examination, the medical provider indicated the Veteran's lower extremities are normal. The medical provider notes the Veteran underwent left knee surgery.

On the November 1994 STR separation examination, the medical provider observed the Veteran's lower extremities to be normal. The medical provider notes the Veteran's left knee surgery. 

On the January 2013 VA knee examination, the examiner made no findings related to the right knee. On the January 2013 VA knee medical opinion, the examiner did not opine on the Veteran's right knee and whether it was caused by service. 

In the June 2015 VA knee examination, the examiner indicated the Veteran has a diagnosis of right knee degenerative joint disease (DJD). The Veteran did not report a specific history of injury. The Veteran stated his right knee pain began during military service during his last shipboard mission from 1989 to 1993. 

The June 2015 VA examiner opined that tat the Veteran's right knee disorder, to include arthritis, is less likely than not caused by service. The examiner reasoned that the Veteran is without indication of a right knee condition during military service. The examiner stated that the Veteran developed a right knee disorder after military service. The examiner found that a record review does not show the Veteran to have a problem until sometime within the most recent years. The examiner stated that the Veteran's right knee disorder is due to wear and tear. The examiner noted that the Veteran was over 50 years of age when indication of a right knee condition began. Also, the examiner noted the Veteran's post-military occupation included labor occupations and the Veteran has a history of obesity. 

On the October 2019 VA addendum medical opinion, the examiner explained that the Veteran's June 1992 STR complaints for left knee symptoms, there appears that a "R" is written but it clearly and unmistakably referring to the Veteran's left knee which is evidence the history written in the noted. The examiner further stated that especially note that reason for request states rehabilitation for surgery, which was done in the left knee at a future date and note imaging findings above on the same date is for the left knee and not right knee. The examiner stated if there were abnormal right knee physical exam findings imaging of his right knee would have been done at the same time. Therefore, the examiner found there is no right knee condition in service. 

Based on the foregoing, there is no evidence that the Veteran's right knee disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a right knee disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the right knee disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). 

There is also no evidence that the Veteran's right knee disorder is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his right knee disorder to service. The only competent evidence in the record that addresses this question is the June 2016 and October 2019 VA medical opinions, which stated that the Veteran's right knee disorder was not related to his service. As there is no other evidence to the contrary, and the June 2015 and October 2019 VA medical opinions were based on a full review of the record as well as an interview and examination of the Veteran, the Board finds them persuasive. 

Further, the Veteran's own statements relating his right knee disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. 

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder. Accordingly, it must be denied.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

4. Entitlement to a non-initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is granted.

The Veteran asserts his PTSD is more severe than the rating currently assigned. The Veteran is currently assigned a 50 percent rating. 

Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.

A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. 

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. Id. 

The Veteran's acquired psychiatric disorder is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).

On the January 2013 VA PTSD examination the examiner indicated the Veteran has a diagnosis PTSD. The examiner observed the Veteran to experience anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or worklike setting; and inability to establish and maintain effective relationships. The examiner found the Veteran's PTSD to cause occupational and social impairment with reduced reliability and productivity. 

On a November 2014 VA treatment record, the Veteran stated that he continues to struggle with a full range of symptoms for depression and PTSD. He stated that his primary coping mechanisms are sleeping, eating, and prayer. 

In a February 2015 VA treatment record, the Veteran is observed to have normal volume and rate and rambling and circumstantial speech; cooperative behavior; depressed and anxious mood; no delusions; no hallucinations; no suicidal or homicidal ideations; alert and oriented; good insight and judgment; and increased psychomotor activity.

On the May 2015 VA PTSD examination, the Veteran stated he experiences depression, anxiety, irritability, and nightmares one time a month. The examiner indicated the Veteran experiences depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and inability to establish and maintain effective relationships. The examiner observed the Veteran to be polite, open, and cooperative. The examiner observed the Veteran to be dressed casually and appropriately with good hygiene. The examiner stated the Veteran has normal speech and within normal limits regarding articulation, rate, tone, volume, and production. The examiner stated the Veteran had an anxious affect and was agitated. The examiner also indicated the Veteran was alert, attentive, and oriented to person, place, time, and situation; immediate recall abilities intact; remote memory intact; and depressed mood. The examiner found the Veteran's PTSD to cause occupational and social impairment with reduced reliability and productivity. 

In a February 2016 VA treatment record the Veteran is observed to be alert; oriented; casually groomed; anxious mood with congruent affect; goal directed speech; no delusions; reports occasional auditory hallucinations; denies visual hallucinations; denies suicidal or homicidal ideation; psychomotor activity slightly increase; fair insight and judgment.

In a July 2016 VA treatment record the Veteran is observed to be alert; cooperative; oriented; appropriate mood with congruent affect; no evidence of perceptual disturbances; intact thought content/process; speech within normal limits; good insight/judgment; and denies suicidal or homicidal ideation.

On an August 2016 private VA disability questionnaire (DBQ), the treatment provider indicated the Veteran experienced depressed mood; anxiety; suspiciousness; panic attacks more than one per week; near-continuous panic or depression affected the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; flattened affect; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgement; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; peristent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; and disorientation to time or place. 

In September 2016 VA treatment record the Veteran is observed to be alert; cooperative; oriented; appropriate mood/affect; no evidence of perceptual disturbances in session; intact content/process; speech within normal limits; good insight/judgment; and denial of suicidal or homicidal ideation. 

In a September 2017 VA treatment record the Veteran is observed to be alert; oriented; casually groomed; euthymic mood with stable affect; goal directed speech with normal volume; no evidence of delusions; denied auditory/visual hallucinations; denies suicidal or homicidal ideation; normal psychomotor activity is normal; good impulse control and judgment; and has insight

In a December 2017 VA treatment record, the veteran is observed to be alert; cooperative; oriented; appropriate mood/affect; intact thought content/process; speech within normal limits; good insight/judgment; and denies suicidal/homicidal ideation.

In a June 2018 VA treatment record, the Veteran is observed to be alert; oriented; casually groomed; mildly dysphoric mood with congruent affect; goal directed speech with normal volume and rate; no evidence of delusions, auditory, visual hallucinations; denies suicidal or homicidal ideation; normal psychomotor activity; good impulse control and judgment; and has insight. 

In a November 2018 VA treatment record, the Veteran is observed to be alert; cooperative; oriented; appropriate mood/affect; no evidence of perceptual disturbances; intact content/process; speech within normal limits; good insight/judgment; and denied suicidal/homicidal ideation.

In a December 2018 VA treatment record, the Veteran is observed to be alert, oriented, casually groomed, slightly anxious mood with congruent affect; goal directed speech; no delusions, auditory, visual hallucinations; denied suicidal/homicidal ideation; psychomotor activity slightly increased; exhibits good impulse control and judgement.

In an April 2019 VA treatment record, the Veteran denied experiencing suicidal ideation. However, the Veteran stated he experienced paranoia, hypervigilance, and startles if surprised. 

In an April 2019 VA treatment record, the Veteran is observed to be alert, cooperative, and oriented. The medical provider also observed the Veteran to be casually dressed with good hygiene. The medical provider observed the Veteran to have good eye contact; anxious and depressed mood; tearful; intact thought content/process; speech within normal; and fair insight/judgment.

In another April 2019 VA treatment record, the Veteran is observed to have alert, oriented, casually groomed, depressed and anxious mood with congruent affect; goal directed speech; no delusions, auditory, visual hallucinations; denied suicidal/homicidal ideation; psychomotor activity normal; and exhibits good impulse control and judgement.

In a July 2020 VA treatment record, the Veteran is observed to be pleasant; oriented; euthymic mood; logical thought process; no suicidal or homicidal ideations; no auditory or visual hallucinations; intact language; fairly good insight and judgment. 

On the December 5, 2020 VA PTSD examination, the Veteran reported continued recurrent distressing memories; flashbacks; hypervigilance; hyperarousal; difficulty recalling certain aspects of events; experiencing self-blame and doubt; negative emotional state; avoiding others and triggers related to experience in service. The Veteran reported going three or four days without showering. He stated he engaged in activities of daily living only when he "has to." 

The December 2020 examiner indicated the Veteran experiences depressed mood; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The examiner found the Veteran's PTSD to cause occupational and social impairment with deficiencies in most areas. The examiner observed the Veteran to be polite; open and cooperative; dressed casually and appropriately with good hygiene; appropriate affect to content of speech; logical and organized thought process; no delusional thought content; speech within normal limits; intact memory, attention, and concentration; alert and oriented; and able to perform a complex command and inhibit responses appropriately. 

Based on all the evidence, prior to December 5, 2020, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a disability rating of 50 percent for this period. Thus, a rating in excess of 50 percent is not warranted. The symptoms exhibited by the Veteran prior to December 5, 2020 include depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances, including work or worklike setting; and inability to establish and maintain effective relationships. Throughout this period, the VA treatment records demonstrate that the Veteran was alert and oriented; cooperative; intact insight and judgement; normal speech; and appropriately dressed. The Veteran's symptoms and their effects are contemplated within the criteria for a 50 percent rating. 

Prior to December 5, 2020, the Board does not find that the Veteran's symptoms more nearly approximate a rating of 70 percent, as they have not been of such severity or frequency to result in occupational and social impairment with deficiencies in most areas (such as work, family relations, judgment, thinking, or mood). The evidence of record shows the Veteran was able to communicate effectively with treatment providers, was alert and oriented, and was appropriately groomed. 

The Board acknowledges the private August 2016 VA DBQ with findings that would warrant a higher rating in indicating that the Veteran experienced panic attacks more than one per week; near-continuous panic or depression affected the ability to function independently; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgement; impaired abstract thinking; gross impairment in thought processes or communication; suicidal ideation; impaired impulse control; peristent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; and disorientation to time or place. However, the contemporaneous VA treatment records show the Veteran did not experience near-continuous panic or depression, inability to function independently, illogical speech, impaired judgement, suicidal ideation, hallucinations, impaired impulse control, grossly inappropriate behavior, or neglect of personal appearance. The VA treatment records consistently show the Veteran to be casually dressed, appropriately groomed, normal speech, and intact insight and judgment. As such, the Board does not find the August 2016 private DBQ to be persuasive. 

In sum, prior to December 5, 2020, there is insufficient evidence of such symptoms as suicidal ideations; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships, nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. Given the foregoing, the Board finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 70 percent evaluation and that the findings do not support a conclusion that his symptoms are productive of a "similar severity, frequency, and duration" as those required for a 70 percent evaluation. See 38 C.F.R. § 4.7; Vazquez-Claudio (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas).

From December 5, 2020 onward, the Board finds that the Veteran's PTSD more nearly approximates the 70 percent rating criteria for the period on appeal. In this regard, the findings of the December 5, 2020 VA PTSD examiner show that the Veteran experiences depressed mood; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The Board finds that these symptoms are commensurate with an occupational and social impairment with deficiencies in most areas. Accordingly, the Board finds that a 70 percent rating is warranted for this period. 

For the entire period on appeal, the Board finds that the Veteran's disability picture does not approximate the criteria for a 100 percent rating because the Veteran does not exhibit total occupational and social impairment. As discussed above, the Veteran has consistently been found able to exhibit intact judgment, have normal speech, and the ability to perform self-care. 

Based on the evidence of record, the Board finds that the Veteran's symptomatology most closely approximated the criteria for a 50 percent rating prior to December 5, 2020 and 70 percent thereafter, and as such ratings in excess of the respective ratings are not warranted. 

5. Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied.

The Veteran asserts that his migraine headaches are more severe than the rating currently assigned. The Veteran is currently assigned a 30 percent disability rating.

The Veteran's headaches are currently rated as 30 percent disabling under the criteria of 38 C.F.R. § 4.124a, DC 8100. Under that diagnostic code, migraines with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a.

On the June 2015 VA headaches examination, the examiner indicated the Veteran experiences constant head pain; pain on both sides of the head; pain worsens with physical activity; sensitivity to light; and sensory changes. The examiner indicated the duration of the typical head pain, which is to both sides of the head, is less than one day. The examiner found the Veteran to experience prostrating headaches once a month, however the prostrating headaches are not productive of severe economic inadaptability. 

On the July 2021 VA headaches examination, the Veteran stated that he experiences right sided headache that happens about once a week and lasts a few hours before resolving spontaneously. The examiner indicated the Veteran experiences pulsating or throbbing head pain, pain localized to one side of the head, sensitivity to light, and changes in vision. The examiner indicated the Veteran's typical head pain lasts less than one day. Finally, the examiner found the Veteran does not experience prostrating attacks. 

The Board finds that the Veteran's disability picture more nearly approximates the criteria for a disability rating of 30 percent. Thus, a rating in excess of 30 percent is not warranted. To warrant a higher rating, the Veteran must experience migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, however, the record demonstrates that the Veteran does not experience very frequent completely prostrating attacks. Therefore, the Board finds that his symptoms of headaches does not produce prostrating headaches. Thus, a 50 percent rating is not warranted. 

Based on the evidence of record, the Board finds that the preponderance of the evidence weighs against a higher rating in excess of 30 percent for the Veteran's headaches. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim must be denied.

6. Entitlement to a non-initial compensable rating for bilateral hearing loss is denied.

The Veteran asserts his bilateral hearing loss is more severe than a noncompensable rating. 

The Veteran's hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. 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 speech discrimination test (Maryland CNC) 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). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, VIa and VII, Diagnostic Code 6100. 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 v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. 

Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 

A June 2015 VA audiological examination found that puretone thresholds, in decibels, were: 

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	Avg

RIGHT	10	5	15	45	19

LEFT	5	5	50	65	31

The average thresholds were 19 decibels in the right ear and 31 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The Veteran reported that he is unable to hear others when the television is on and he has difficulty hearing in noisy environments.

An April 2021 VA audiological examination found that puretone thresholds, in decibels, were: 

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	Avg

RIGHT	20	25	40	60	36

LEFT	20	35	65	70	48

The average thresholds were 36 decibels in the right ear and 48 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The Veteran reported that others must repeat themselves and he is not able to understand others if there is noise.

The Board finds that a compensable evaluation is not warranted for bilateral hearing loss. The June 2015 VA audiometric findings result in a Roman numeral designation Level I for the right ear and Level I for the left ear. Taken together, that is a zero percent evaluation. See 38 C.F.R. § 4.85, Table VII. The April 2021 VA examination results in a Roman numeral designation Level I in the right ear and Level I in the left ear. Taken together, that is a zero percent evaluation. Id.

Based on the foregoing information, the Board does not find that, at any point in time during the appeal period, the Veteran's bilateral hearing loss disability warranted a compensable initial disability rating. Accordingly, the claim is denied.

7. Entitlement to a non-initial rating in excess of 10 percent for tinnitus is denied.

The Veteran's service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. 

On the January 2013 VA examination report, the Veteran stated that his tinnitus is distracting, and he finds it difficult to go to sleep when the ringing is present. 

On the June 2015 VA examination report, the Veteran did not comment on the functional impact of tinnitus.

On the April 2021 VA examination, the Veteran stated the tinnitus occasionally disrupts sleep.  

The Veteran's tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87. Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).

8. Entitlement to an initial rating in excess 30 percent of for sinusitis is denied.

The Veteran asserts that his sinusitis is more severe than the rating currently assigned. He is currently assigned a 30 percent disability rating. 

The Veteran's sinusitis is currently rated as 30 percent disabling under the criteria of 38 C.F.R. § 4.97, Diagnostic Code 6512. Under that diagnostic code, sinusitis with three or more incapacitating episodes per year of sinusitis required prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted when following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97.

In a January 2013 VA treatment record, the Veteran complained of sinusitis for five days with yellow mucoid phlegm expectorant causing chest congestion.  

On the June 2015 VA sinusitis examination, the examiner indicated the Veteran has frontal sinusitis. The examiner indicated the Veteran has episodes of sinusitis; headaches; tenderness of affected sinus; and crusting. The examiner indicated that Veteran has experienced seven non-incapacitating episodes over the past 12 months. Also, the examiner indicated the Veteran has one incapacitating episode of sinusitis requiring four to six weeks of antibiotics treatment in the past 12 months. The examiner noted the Veteran has not had sinus surgery. 

On the July 2021 VA sinusitis examination, the examiner indicated the Veteran experiences maxillary sinusitis. The examiner indicated the Veteran experiences episodes of sinusitis and nasal congestion. Also, the Veteran experiences seven non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. The examiner indicated the Veteran does not experience incapacitating episodes. The examiner noted the Veteran has not had sinus surgery. 

Based on review of the record, the Board finds that the Veteran's sinusitis does not warrant a rating in excess of 30 percent. To warrant a higher rating, the sinusitis must follow radical surgery or be near constant characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Specifically, the June 2015 and July 2021 VA examiners indicated the Veteran experiences episodes of sinusitis and has not undergone surgery. As the Veteran has not undergone radical surgery or had near constant symptoms, a higher rating is not warranted. Thus, a rating in excess of 30 percent is not warranted.

Accordingly, the Board finds that a rating in excess of 30 percent is not warranted for sinusitis. 

9. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis is denied.

The Veteran asserts that his rhinitis is more severe than the rating currently assigned. 

The Veteran's rhinitis is currently rated as 10 percent disabling under the criteria of 38 C.F.R. § 4.97, Diagnostic Code 6522. Under that diagnostic code, allergic rhinitis is rated 10 percent disabling without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic rhinitis with polyps. 38 C.F.R. § 4.97.

On the June 2015 VA sinusitis examination, the examiner indicated the Veteran's rhinitis has greater than 50 percent obstruction of the nasal passage on both sides with no nasal polyps and no granulomatous conditions. 

On the July 2021 VA sinusitis examination, the examiner indicated the Veteran does not have greater than 50 percent obstruction for the nasal passage on both sides, does not have complete obstruction on either side, and no nasal polyps. 

Based on the evidence of record, the Veteran is not entitled to a rating in excess of 10 percent. To warrant a higher rating, there must be a finding of polyps. Here, the June 2015 and July 2021 VA examiners did not observe the Veteran to have polyps. This evidence is most consistent with a 10 percent rating. Thus, a rating in excess of 10 percent is not warranted. 

10. Entitlement to an initial compensable rating for reactive airways dysfunction syndrome is granted.

The Veteran asserts his reactive airway dysfunction syndrome warrants a compensable rating. 

Under Diagnostic Code 6602, bronchial asthma is rated 10 percent for FEV-1 of 71 to 80 percent of that predicted; or the ratio of FEV-1/FVC of 71 to 80 percent; or, intermittent inhalation or oral bronchodilator therapy. A 30 percent rating requires FEV-1 of 56 to 70 percent of that predicted; or the ratio FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. For a 60 percent rating to be assigned, there must be FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. For a 100 percent rating, there must be FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602.

On the January 2013 VA respiratory examination, the examiner indicated the Veteran does not have a respiratory disorder. The PFT from January 2012 resulted in FEV-1 103 percent predicated; FVC 103 percent predicted; FEV-1/FVC 78.8 percent predicted; and post-bronchodilator of FEV-1 97 percent predicted; post-bronchodilator FVC 95 percent predicated; and post-bronchodilator FEV-1/FVC 80.3 percent predicated. The examiner indicated that FEV-1/FVC most accurately reflects the Veteran's current pulmonary function. The examiner noted that the DLCO testing has not been completed because it was not indicated in the Veteran's particular case. 

In a January 2013 VA treatment record, the Veteran complained of shortness of breath and exertional dyspnea. He stated he normally does not have this difficulty. 

In a July 2014 VA treatment record, the Veteran complained of shortness of breath for the past eight months. He stated he occasionally has episodes of chest discomfort.

On a July 2014 VA treatment record, the Veteran stated he worked in supply and was walking a lot and would become very short of breath. The medical provider stated the Veteran has a wheeze. The medical provider stated that the Veteran has a normal PFT study from the prior year. 

On the June 2015 VA respiratory examination, the examiner indicated the Veteran has a diagnosis of reactive airways dysfunction syndrome. The Veteran has repeated complains of shortness of breath and has been treated with albuterol inhaler. The examiner indicated the Veteran's respiratory disorder does not require use oral parenteral corticosteroid medications, inhaled medications, oral bronchodilators, use of antibiotics, or the use of outpatient oxygen therapy. The June 2015 PFT found pre-bronchodilator FVC at 91 percent predicted; FEV-1 at 91 percent predicted; FEV-1/FVC at 78 percent predicted; DLCO at 88 percent predicated. The PFT found post-bronchodilator FVE at 89 percent predicted; FEV-1 at 94 percent predicated; and FEV-1/FVC at 83 percent predicated. The examiner stated that FVC predicated most accurately reflects the Veteran's level of disability. 

On the July 2021 VA respiratory examination, the Veteran reported that he experienced chest pain on exertion that causes him to stop and rest. He stated this mostly happens with intense physical activity. The examiner indicated the Veteran's respiratory disorder does not require use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen. The examiner noted an April 2021 PFT to be pre-bronchodilator FVC to 71.5 percent predicted; FEV-1 to 82.9 percent predicted; FEV-1/FVC to 87 percent predicted. The PFT post-bronchodilator is FVC 75.9 percent predicted; FEV-1 to 86.3 percent predicted; and FEV-1/FVC to 85 percent predicted. The examiner indicated the FEV-1 predicted most accurately reflects the Veteran's disability.  

Based on the evidence of record, the Board finds that a 10 percent rating is warranted for the Veteran's reactive airway dysfunction syndrome. In so finding, the Board notes that the January 2013 VA examination reflected that the Veteran's FEV-1/FVC, as the examiner found this to most accurately reflect the Veteran's disability, was 78 percent predicted. This evidence is most consistent with a 10 percent disability rating under Diagnostic Code 6602.

However, the evidence of record does not show that the Veteran experienced FEV-1 of 56-70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or required daily inhalation or oral bronchodilator therapy, or inhalational anti-inflammatory medication. Thus, a rating higher than the 10 percent assigned herein is not warranted. 

Accordingly, for the reasons discussed above, the Board finds that a 10 percent rating, but no higher, is warranted for reactive airway dysfunction syndrome.

11. Entitlement to an initial rating in excess of 10 percent for GERD is denied.

The Veteran asserts his GERD is more severe than the rating currently assigned. The Veteran is currently assigned a 10 percent disability rating. 

Under Diagnostic Code 7346 for hernia hiatal, a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Id.

On the June 2015 VA esophageal examination, the examiner indicated the Veteran experiences persistently recurrent epigastric distress; pyrosis; reflux; regurgitation; substernal pain; and sleep disturbance caused by reflux four or more times per year. 

On the July 2021 VA esophageal examination, the examiner indicated the Veteran experiences infrequent episodes of epigastric distress; regurgitation; pyrosis; and substernal pain. 

Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted. The record does not show that the Veteran experiences persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Although the June 2015 VA examination shows the Veteran experiences persistently recurrent epigastric distress, the record does not show the Veteran experiences dysphagia, which is required to warrant a higher rating. Thus, a rating in excess of 10 percent is not warranted. 

12. Entitlement to a non-initial rating in excess of 10 percent for a left knee disability is granted.

13. Entitlement to an initial rating in excess of 10 percent for left knee instability is denied.

The Veteran asserts that his left knee disorder and left knee instability are more severe than the rating currently assigned. Here, The Veteran is assigned a 10 percent rating for each.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Board is also required to consider 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. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Under Diagnostic Code (DC) 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 

Under DC 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. 

Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II.

Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04.

Under 38 C.F.R. § 4.71a, DC 5257, which evaluates recurrent subluxation or lateral instability, 10, 20 and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or lateral instability, respectively. 38 C.F.R. § 4.71a, DC 5257.

Under DC 5258 for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint, assigns a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258.

Finally, under DC 5259 for symptomatic removal of the semilunar knee cartilage and 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5259.

Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include Diagnostic Code 5256 for ankylosis of the knee; DC 5262 for impairment of the tibia and fibula; and DC 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).

Under DC 5055, a 30 percent rating is warranted as a minimum rating for knee replacement. With intermediate degrees of residual weakness, pain, or limitation of motion, the condition is rated by analogy to DC 5256, 5261, or 5262. A 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for one year following implantation of prosthesis. 38 C.F.R. § 4.71a, DC 5055.

At the outset, the Board notes that the evidence does not support an award for increased ratings for the right knee under Diagnostic Code 5055 for knee replacement (prosthesis); Diagnostic Code 5256 for ankylosis; Diagnostic Code 5262 for impairment of tibia and fibula; or Diagnostic Code 5263 for genu recurvatum. This is because none of these disabilities have been demonstrated upon VA examinations performed in January 2013, June 2015, and July 2021 and are not otherwise reflected in the record before the Board at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5262, 5263.

The Board notes that the Schedule of Ratings for the Musculoskeletal System was amended in February 2021 so that it more clearly reflects VA's policies concerning the evaluation of musculoskeletal disorders, specifically, 38 C.F.R. § 4.71a. The Board notes that only two Diagnostic Codes 5257 and 5262 for knee disabilities were amended in the recent regulatory change. However, the remaining diagnostic codes relating ot knee and leg disabilities, including 5256, 5258, 5259, 5260, 5261, and 5263 were not amended. Although there is no specific effective date provided for rating issues under the new criteria, the regulation is not retroactive prior to February 7, 2021. Therefore, the new regulation applies to claims filed on or after February 7, 2021 and claims pending on February 7, 2021, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.71a (2021). As this appeal was pending prior to the February 2021 effective date for revised ratings for the musculoskeletal system, the Board will consider its application to the Veteran's claim for increased rating from February 9, 2021 onward.

Under the revised criteria, Diagnostic Code 5257 for recurrent subluxation and instability now provides 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. A 20 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation or a sprain incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation.

For patellar instability under the revised Diagnostic Code 5257, 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. 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. And 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. 

On the June 2015 VA knee examination, the examiner indicated the Veteran has diagnosis of left knee DJD status post arthroscopy and right knee DJD. The Veteran stated that his left knee disorder is chronic and is associated with prolonged standing and the Veteran noted that when he sits or stand. Also, the Veteran stated if he is seated for a prolong period, his knees will become stiff and painful. The Veteran denied experiencing flare-ups in the left knee. He stated the aggravation is daily. The Veteran reported that he has functional loss because of the inability to tolerate prolonged standing, walking, or sitting. 

On examination, the June 2015 examiner observed the Veteran's right knee range of motion to be flexion to 135 degrees and extension to zero degrees. The examiner noted the Veteran experienced pain on flexion of the right knee. The examiner observed the Veteran's left knee range of motion to be flexion to 135 degrees and extension to zero degrees. The examiner indicated the range of motion contributes to functional loss due to pain and swelling. The examiner found the Veteran to experience pain in the left knee with flexion. Also, the examiner observed the Veteran's left knee to experience pain on weightbearing and localized tenderness or pain in the medial joint and subpatellar. Further, the examiner indicated the Veteran experienced crepitus in the left knee. The examiner also indicated that the Veteran experiences pain and incoordination with repeated use over time. The examiner described this as mild severity with extension and moderate with flexion. During flare-ups, the Veteran's pain, fatigue, lack of endurance, and incoordination limit functional ability. The examiner described this as mild with extension and moderate with flexion. The examiner further noted the Veteran does not experience ankylosis. The examiner also observed the Veteran to experience slight instability in the left knee. The examiner indicated the Veteran has a history of effusion. The examiner also noted the Veteran has recurrent patellar dislocation in the left knee that is slight. Also, the examination demonstrates the Veteran has had a meniscus condition in the left and right knee. The left knee has symptoms of meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. The Veteran is found to have specifically undergone a meniscectomy, arthroscopic or other knee surgery in the left knee that has resulted in chronic knee pain and degenerative joint disease.   

On the July 2021 VA knee examination, the examiner indicated the Veteran has diagnosis of left knee DJD status post arthroscopy with meniscectomy. The Veteran stated his disorder has worsened. The Veteran reported that he does not experience flare-ups. The Veteran reported functional loss with an inability to stand for prolong periods. He also reported left knee instability or recurrent subluxation by stated sometimes the left knee give out on him. The Veteran reported no history of effusion. 

On examination, the July 2021 VA examiner did not test the right knee because it is the unclaimed damaged joint. On examination, the examiner observed the Veteran's left knee range of motion to be normal. The examiner indicated the Veteran's left knee range of motion is flexion to 140 degrees and extension to aero degrees. The examiner found the Veteran's to have pain on weightbearing, which causes functional loss. Also, the examination shows the Veteran to have crepitus. The examiner did not observe there to be evidence of localized tenderness or pain on palpation. After repetitive use testing, the examiner found there to be no additional loss of function or range of motion. The examiner indicated there is no ankylosis. However, the examiner observed the Veteran to have left knee instability with recurrent subluxation or persistent instability. The examiner noted there has not been a ligament tear (sprain) of the left knee. The examiner indicated the Veteran does not have a diagnosis of recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. The examiner also indicated the Veteran does not currently have or has been diagnosed with a meniscus condition. 

Left Knee Disorder

Upon review of the evidence, the Board finds that 20 percent rating is warranted for the Veteran's left knee disorder. In so finding, the Board notes that the June 2015 VA examiner found the Veteran to experience left knee symptoms of meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. This evidence is most consistent with a 20 percent disability rating under Diagnostic Code 5258.

However, the evidence of record does not show that the Veteran experienced flexion to 15 degrees or extension to 20 degrees. Thus, a rating higher than 20 percent assigned herein is not warranted. 

Accordingly, for the reasons discussed above, the Board finds that a 20 percent rating, but no higher, is warranted for the left knee disorder. 

Left Knee Instability

Based on the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for left knee instability. The June 2015 VA examiner observed the Veteran's left knee instability to be slight and the July 2021 examiner observed the Veteran to have left knee instability. The Board finds that the Veteran's recurrent subluxation or instability was never observed to be moderate. Therefore, the Board finds the Veteran's left knee instability does not warranted a rating in excess of 10 percent. 

Under the 2021 revised Schedule of Ratings for the Musculoskeletal System, from February 7, 2021 onward, the Board finds that rating in excess of 10 percent for left knee instability is not warranted. In order to warrant a higher rating, the Veteran's left knee instability would have to show unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation or 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. Here, the July 2021 VA examiner indicated the Veteran does not have a ligament tear or recurrent patellar dislocation. Accordingly, a rating in excess of 10 percent for left knee instability after February 7, 2021 is not warranted.

14. Entitlement to a non-initial rating in excess of 10 percent for residuals of right hand or wrist hamate bone fracture is denied.

The Veteran asserts his residuals of right-hand hamate bone fracture is more severe than currently rated. Here, the disorder is currently rated as 10 percent disabling. 

The Veteran's right-hand or wrist disorder is currently rated as 10 percent disabling under Diagnostic Code 5215 for limitation of motion of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. The Board notes that a normal range of motion in the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. See 38 C.F.R. § 4.71, Plate I.

Handedness for the purpose of a dominance rating is determined by the evidence of record, or by testing on VA examination. See 38 C.F.R. § 4.69. Only one hand is considered dominant. The evidence of record establishes that the Veteran is right-handed, and as such, major hand disability ratings are applicable.

Under Diagnostic Code 5215, a 10 percent rating is warranted for either the major or minor limb when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. A 10 percent rating is the only, and therefore the maximum, rating available under this code.

Diagnostic Code 5214 provides higher evaluations when ankylosis of the wrist is present. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). A 50 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the major wrist. A 40 percent rating is warranted when there is ankylosis of the major wrist in any other position, except favorable. A 30 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the major wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214.

At the outset, the Board finds that Diagnostic Code 5414 is not applicable because the medical evidence does not show that the Veteran has ankylosis of the wrist. 

Also, the Board finds that Diagnostic Codes 5216 to 5230, for ankylosis or limitation of motion of singer or multiple digits of the hand are not applicable as the medical evidence does not show the Veteran to have any ankylosis in any digits or to have limitation of motion of individual digits.

On the June 2015 VA hand examination, the examiner indicated the Veteran has diagnosis of mallet finger and residuals of hamate bone fracture in the right hand. The examiner stated that due to surgical intervention and the original injury, the Veteran developed chronic right-hand pain that is most often felt when lifting. The Veteran reported experiencing flare-ups in the right hand resulting in sharp pain when lifting. The Veteran also reported functional loss or impairment when lifting and other hand movements. 

On examination, the June 2015 hand VA examiner indicated the Veteran is ambidextrous. On examination, the examiner observed the Veteran's right-hand range of motion to be normal with no gap between the pad of the thumb and fingers and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner indicated the Veteran has pain on examination with finger flexion. Also, the examiner indicated that there is pain with use of the hand and there is objective evidence of localized tenderness or pain on palpation. The examiner observed the Veteran to have abnormal range of motion in the left hand. However, the examiner observed there to be no gap between the pad of the thumb and the fingers and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner stated the Veteran's left-hand limited range of motion contributes to functional loss as the Veteran has mallet finger on the long finger at the distal interphalangeal joint (DIP). The examiner indicated there is no pain in the left hand noted on examination. The examiner found that pain, fatigue, weakness, lack of endurance, and incoordination of the right hand limits the Veteran's functional ability with flare-ups. The examiner described this limited functional ability is moderate and affected the motion of flexion of the 4th and 5th digits. The examiner found there to be no ankylosis in the right or left hand. 

On the June 2015 VA wrist examination, the examiner indicated the Veteran has a diagnosis of residuals of hamate bone fracture in right wrist. The examiner stated that the Veteran has right wrist pain and limited range of motion secondary to the fracture and surgical intervention and the residual effects to the carpal bone because of this event. The Veteran reported that he experienced flare-ups of the wrist that occur repeatedly during the week but are brief in nature. The Veteran also reported functional loss or impairment due to limitation due to the hamate fracture residual in the right hand. The Veteran reported he has pain with heavy or repeated lifting or gripping and twisting with the right hand. 

On examination, the June 2015 wrist examiner indicated the Veteran is ambidextrous. On examination, the examiner observed the Veteran's right wrist range of motion to be palmar flexion to 75 degrees; dorsiflexion to 75 degrees; ulnar deviation to 40 degrees; and radial deviation to 30 degrees. The examiner noted that the Veteran's limited range of motion contributes to functional loss because of pain. The examiner observed the Veteran to experience pain in palmar flexion, dorsiflexion, ulnar deviation, and radial deviation. The examiner also observed the Veteran to experience pain on weightbearing and pain on palpation of the hamate. The examiner observed the Veteran's left wrist to be normal with no pain on examination. After repetitive use testing, the examiner observed the Veteran to have additional loss of function or range of motion because of pain and incoordination. The examiner measured the Veteran's range of motion to be palmar flexion to 75 degrees; dorsiflexion to 60 degrees; ulnar deviation to 35 degrees; and radial deviation to 30 degrees. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability and can be described in range of motion as palmar flexion to 75 degrees; dorsiflexion to 60 degrees; ulnar deviation to 35 degrees; and radial deviation to 30 degrees. Further, the examiner found the Veteran's right wrist pain, fatigue, weakness, lack of endurance, and incoordination with flare-ups limit functional ability. The examiner described this as moderate. The examiner noted the Veteran did not experience ankylosis in the right or left wrist. 

On the July 2021 VA wrist examination, the examiner indicated the Veteran has a diagnosis of right wrist open reduction and internal fixation with residual scar. The examiner reported the Veteran's disorder has stayed the same since its onset. The Veteran stated he currently experiences numbness and tingling sensation in the right hand when lifting items over 10 pounds. The examiner indicated the Veteran experiences functional loss with difficulty picking up items over 10 pounds. 

On examination, the July 2021 wrist examiner observed the right wrist range of motion to be normal with no evidence of pain. The right wrist range of motion is measured to be dorsiflexion to 70 degrees; palmar flexion endpoint to 80 degrees; ulnar deviation endpoint to 45 degrees; and radial deviation endpoint to 20 degrees. The left wrist range of motion is observed to be dorsiflexion to70 degrees; palmar flexion endpoint to 80 degrees; ulnar deviation endpoint to 45 degrees; and radial deviation endpoint to 20 degrees. The examiner observed that after repetitive use testing, the Veteran did not show loss of function or range of motion. The examiner indicated there are not symptoms contributing to the right wrist disorder. Also, the examiner found there to be not ankylosis. 

With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under DeLuca, the Board notes the Veteran's complaints of pain. However, the Veteran is already receiving a 10 percent evaluation under Diagnostic Code 5215 for limitation of motion, which is the maximum evaluation allowed for limitation of motion of the wrist absent ankylosis.

In summary, the Board concludes that there is functional loss due to painful motion entitling the Veteran to rating of 10 percent for his right wrist disability throughout the course of the appeal; however, there is no basis for a rating in excess of 10 percent at any time during the appeal.

15. Entitlement to a non-initial compensable rating for a scar of the right hand is denied.

The Veteran asserts that the right-hand scar is more severe than currently rated. Here, the Veteran is assigned a noncompensable rating.

Under Diagnostic Code 7805, regarding other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804 are to evaluate any disability effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016).

Under Diagnostic Code 7802 due to burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear, a 10 percent rating requires a scar(s) with an area or areas of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016).

Diagnostic Code 7806 provides for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); or as scars (Diagnostic Code 7801-7805), depending upon the predominant disability. 38 C.F.R. 4.118 (2016). The Board, however, finds that these Diagnostic Codes are inapplicable here. In that connection, Diagnostic Code 7800 is inapplicable in that the Veteran's skin disorder does not cause disfigurement of the head, face, or neck. Diagnostic Code 7801 governs scars that are deep and nonlinear. Diagnostic Code 7804 governs scars that are unstable or painful. 38 C.F.R. 4.118 (2016). Here, however, as the evidence establishes that there is no scarring or disfigurement of the head, face or neck, no scars shown to be deep and nonlinear, and no scars are found to be unstable or painful, as such the Board finds that the Veteran's right hand scarring is appropriately rated under Diagnostic Codes 7802 and 7805. 

The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA's policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). Although the Veteran's application was received by VA before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran's claim for increased rating. 

Under Diagnostic Code 7805, regarding other scars and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804 are to evaluate any disability effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018).

Under Diagnostic Code 7802 due to burn scars or scars due to other causes, not of the head, face or neck, that are not associated with underlying soft tissue damage, a 10 percent rating requires a scar with an area or areas of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018).

On the June 2015 VA hand examination, the examiner observed the Veteran to have scarring on the dorsum of the hand that is 4.5 cm. in length by 0.1 cm in width. The examiner did not find the scar to be painful, unstable, to have a total area equal to or greater than 39 square cm. (6 square inches); or to be located on the head, face, or neck. 

On the June 2015 VA scar examination, the examiner indicated the Veteran's scars are not painful and unstable or unstable with frequent loss of covering of the skin. The examiner indicated the right upper extremity scar is linear and measures 4.5 cm. 

On the July 2021 VA scar examination, the examiner observed the Veteran to have a scar on the right wrist status post fracture. The examiner indicated the scar is not unstable, painful, due to burn, or with frequent loss of covering the skin. The examiner measured the scar to be 5 cm. by 0.1 cm. The examiner found the Veteran's scars without underlying tissue damage to be 0.5 square cm. 

Upon review of the record, the Board finds that a compensable rating for right hand scarring is not warranted. In order to warrant a compensable disability rating, the Veteran's right-hand scarring would have to be manifested by an area or areas of 144 sq. inches (929 sq. cm.) or greater. Here, however, the June 2015 and July 2021 VA hand and scar examinations, respectively, show that the Veteran's right- hand scarring is less than 144 sq. inches (929 sq. cm.) or greater. Accordingly, a compensable disability rating is not warranted for the Veteran's right-hand scarring. 

Under the 2018 revised Schedule for Rating Skin Disabilities, the Board finds that a compensable rating for right-hand scarring is not warranted. In order to warrant a compensable disability rating, the Veteran's left shoulder scarring would have to be manifested by an area or areas of 144 sq. inches (929 sq. cm.) or greater. Here, however, the June 2015 and July 2021 VA examinations show that the Veteran's right-hand scarring is less than 144 sq. inches (929 sq. cm.) or greater. Accordingly, a compensable disability rating is not warranted for the Veteran's right-hand scarring under the 2018 revised Schedule for Rating Skin Disabilities.

16. Entitlement to a non-initial compensable rating for a scar of the left knee is denied.

17. Entitlement to an initial compensable rating for a deep and nonlinear scar of the left knee is denied.

The Veteran asserts that his left knee scarring is more severe than currently evaluated. Here, Veteran's left knee scarring is assigned a non-compensable rating.

Under Diagnostic Code 7805, regarding other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804 are to evaluate any disability effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016).

Under Diagnostic Code 7801 due to burn scars or scars due to other causes, not of the head, face or neck, that are associated with underlying soft tissue damage, a 10 percent rating requires scar(s) with an area or areas of at least 6 sq. inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm.). 38 C.F.R. § 4.118 (2016). A 20 percent rating requires scar(s) with an area or areas of at least 12 sq. inches (77 sq. cm.) but less than 72 sq. inches (465 sq. cm.). Id. A 30 percent rating requires scar(s) with an area or areas of at least 72 sq. inches (465 sq. cm.) but less than 144 sq. inches (929 sq. cm.). Id. And a 40 percent rating require scar(s) with an area or areas of at least 144 sq. inches (929 sq. cm.) or greater. Id.

Under Diagnostic Code 7802 due to burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear, a 10 percent rating requires a scar(s) with an area or areas of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016).

Here, as above, the evidence establishes that there is no scarring or disfigurement of the head, face or neck, and no scars are found to be unstable or painful, as such the Board finds that the Veteran's left knee scarring is appropriately rated under Diagnostic Codes 7802 and 7805 for three left knee scars. The fourth left knee scar is found to be deep and nonlinear, therefore the fourth scar will be evaluated under Diagnostic Code 7801. 

Under the revised Diagnostic Code, one left knee scar is rated under Diagnostic Code 7801 due to burn scar or scars due to other causes, not of the head, face or neck, that is associated with underlying soft tissue damage a 10 percent rating requires scar(s) with an area or areas of at least 6 sq. inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm.). 38 C.F.R. § 4.118 (2018). A 20 percent rating requires scar(s) with an area or areas of at least 12 sq. inches (77 sq. cm.) but less than 72 sq. inches (465 sq. cm.). Id. A 30 percent rating requires scar(s) with an area or areas of at least 72 sq. inches (465 sq. cm.) but less than 144 sq. inches (929 sq. cm.). Id. And a 40 percent rating require scar(s) with an area or areas of at least 144 sq. inches (929 sq. cm.) or greater. Id. 

Under the revised Diagnostic Code, three left knee scars are rated under Diagnostic Code 7802 due to burn scars or scars due to other causes, not of the head, face or neck, that are not associated with underlying soft tissue damage, a 10 percent rating requires a scar with an area or areas of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018).

On the June 2015 VA knee examination, the examiner did not observe the Veteran to have scarring.

On the June 2015 VA scar examination, the examiner indicated the Veteran's scars are not painful and unstable or unstable with frequent loss of covering of the skin. The examiner indicated there are four scars on the left knee. The examiner observed three scars to be linear and measure 2 cm.; 1 cm.; and 1 cm. The examiner observed the fourth scar to be deep non-linear that is 4 cm. by 1 cm. The examiner indicated the total area of the scars is about 4 cm. squared. The June 2015 examiner found the Veteran's scars without underlying tissue damage in the left knee to be 4.4 square cm.

The July 2021 VA scar examiner observed the Veteran to have left knee scars. The examiner indicated the scar is not unstable, painful, due to burn, or with frequent loss of covering the skin. The examiner indicated the Veteran has four scars on the left anterior knee that are non-linear. The examiner measured the scars to be 2 cm. by 0.1 cm; 1 cm. by 0.1 cm.; 1 cm. by 0.1 cm.; and 4 cm. by 1 cm.

Linear Scars

Upon review of the record, the Board finds that a compensable rating for left knee scarring is not warranted. In order to warrant a compensable disability rating, the Veteran's left knee scarring would have to be manifested by an area or areas of 144 sq. inches (929 sq. cm.) or greater. Here, however, the June 2015 and July 2021 VA examinations show that the Veteran's left knee scarring is less than 144 sq. inches (929 sq. cm.) or greater. Accordingly, a compensable disability rating is not warranted for the Veteran's left knee scarring. 

Under the 2018 revised Schedule for Rating Skin Disabilities, the Board finds that a compensable rating for left knee scarring is not warranted. In order to warrant a compensable disability rating, the Veteran's left knee scarring would have to be manifested by an area or areas of 144 sq. inches (929 sq. cm.) or greater. Here, however, the June 2015 and July 2021 VA examinations show that the Veteran's left knee scarring is less than 144 sq. inches (929 sq. cm.) or greater. Accordingly, a compensable disability rating is not warranted for the Veteran's left knee scarring under the 2018 revised Schedule for Rating Skin Disabilities. 

Deep and Nonlinear Scar

In regard to the deep and nonlinear scar, the Board finds that a compensable rating for left knee deep and nonlinear scar is not warranted. In order to warrant a compensable rating, the Veteran's left knee deep and nonlinear scar would have to manifested by an area or areas of at least 6 sq. inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm.). Here, however, the June 2015 VA examination show the Veteran's left knee deep and nonlinear scar is less than 6 sq. inches (39. sq. cm.). Accordingly, a compensable disability rating is not warranted for the Veteran's left knee deep and nonlinear scar.

Under the 2018 revised Schedule for Rating Skin Disabilities, the Board finds that a compensable rating for left knee deep and nonlinear scar is not warranted. In order to warrant a compensable disability rating, the Veteran's left knee deep and nonlinear scar would have to be manifested by an area or areas of at least 6 sq. inches (39 sq. cm.) but less than 12 sq. inches (77 sq. cm.). Here, however, the June 2015 VA examination show that the Veteran's left knee deep and nonlinear scar is less than 6 sq. inches (39 sq. cm.). Accordingly, a compensable disability rating is not warranted for the Veteran's left knee deep and nonlinear scar under the 2018 revised Schedule for Rating Skin Disabilities.

Earlier Effective Date

18. Entitlement to an effective date for a 10 percent rating prior to October 25, 2014 for right hand hamate bone fracture is denied.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Thus, the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010).

Here, the Veteran was granted service connection for residuals of right-hand hamate bone fracture and assigned a noncompensable rating in a February 2013 rating decision, effective August 9, 2012. The Veteran then submitted evidence showing that he filed an informal claim for the right-hand disorder on July 31, 2012. As a result, the agency of original jurisdiction (AOJ) found there to be clear and unmistakable error and reassigned an effective date of July 31, 2012. The Veteran then filed a claim for an increased rating for his residuals of right-hand hamate bone fracture with VA on October 25, 2014, more than one year after the grant of service connection and the award of a noncompensable rating. The Veteran asserts that he is entitled to an earlier effective date for the increased rating is warranted. 

(Continued on the next page)

 

While the Board understands the Veteran's concerns, the Board finds there is no basis to grant an effective date prior to October 25, 2014 for the grant of an increased rating for the right-hand disorder. Here, the first date on which it was factually ascertainable that an increase in the Veteran's right-hand disorder occurred was on the June 2015 VA hand and wrist examinations. 

Based on a review of the evidence on file, the Board finds that nothing in the record demonstrates that the Veteran's service-connected residuals of right hamate fracture increased in severity at any point prior to October 25, 2014, so as to warrant a higher schedular rating. The Board concludes that October 25, 2014, the date of receipt of the claim for increase is the correct effective date of the grant of a 10 percent disability rating for his service-connected residuals of right-hand hamate fracture. See 38 C.F.R. § 3.400(o)(2).

 

 

M. Mills

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Thompson, 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.