Citation Nr: 21071582 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-02 169 DATE: November 30, 2021 ORDER As new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss, the claim is reopened. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for sleep apnea (OSA) is denied. Entitlement to a disability rating greater than 10 percent for right knee strain with swelling and degenerative arthritis (also claimed as right knee disability), before February 01, 2018, is denied. Beginning February 01, 2018, a 100 percent disability rating under Diagnostic Code 5055 is granted. Beginning February 02, 2019, a 30 percent disability rating under Diagnostic Code 5055 for a right knee disability, status post total knee replacement, is granted. Entitlement to a disability rating greater than 10 percent for left knee strain with degenerative arthritis with limited flexion (also claimed as left knee disability) is denied. A separate 10 percent disability rating for left knee instability, beginning August 08, 2017, is granted. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss (previously claimed as left ear hearing loss) is remanded. FINDINGS OF FACT 1. Evidence associated with the claims file since the July 2010 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for right ear hearing loss. 2. The Veteran's right ear hearing loss was incurred in service. 3. The Veteran's OSA was not incurred in service nor is it the result of any incident of service. 4. Before February 01, 2018, the medical and lay evidence does not show right knee flexion limited to 30 degrees or greater or extension limited to 10 degrees or greater. 5. The Veteran had a right total knee replacement on February 01, 2018. 6. Beginning February 02, 2019, the probative evidence of record does not show that the Veteran's residuals, status post right knee total replacement, were manifested by chronic residuals consisting of severe painful motion or weakness or intermediate levels of residuals that could be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 7. The medical and lay evidence does not show left knee flexion limited to 30 degrees or greater or extension limited to 10 degrees or greater. 8. Beginning August 08, 2017, the Veteran's left knee instability was slight in severity. CONCLUSIONS OF LAW 1. The criteria for reopening a final denial of service connection for right ear hearing loss are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Before February 01, 2018, the criteria for a rating higher than 10 percent for the right knee limitation of motion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.71a, Diagnostic Codes 5003, 5260, and 5261. 5. Beginning February 01, 2018, the criteria for a 100 percent rating for right total knee arthroplasty, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.30, 4.71a, Diagnostic Code 5055. 6. Beginning February 02, 2019, the criteria for a 30 percent rating for status post right total knee arthroplasty, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.71a, Diagnostic Code 5055. 7. The criteria for a rating higher than 10 percent for the left knee limitation of motion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.71a, Diagnostic Codes 5003, 5260, and 5261. 8. Beginning August 08, 2017, the criteria for a separate 10 percent rating for the Veteran's left knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. The issue comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of April 2017 and October 2017 by a Department of Veterans Affairs (VA) Regional Office. The rating decision of April 2017 continued the noncompensable disability rating for the Veteran's left ear hearing loss and reopened and denied service connection for the right ear hearing loss. The rating decision of October 2017 granted service connection for a bilateral knee disorder, and awarded a 10 percent disability rating for each knee, effective August 18, 2017, and denied service connection for OSA. A Report of General Information dated in December 2019 indicates that an Informal due process hearing was held with the Veteran to confirm that the bilateral knee issues were on appeal. In March 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). The VLJ kept the record open for an additional 90 days for the Veteran to submit supplemental evidence. A copy of the transcript is of record. In April 2020, the Veteran's agent provided additional evidence, including a private Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) to reflect the current severity of his knee disabilities. As the April 2020 private DBQ provides information on the severity of the right knee disability after the replacement surgery, a remand is not needed for a new VA examination. The DBQ records the Veteran's description of his flare-ups and the private examiner estimated his range of motion during a flare up or after repeated use over a period of time. Passive range of motion was also tested. In June 2020, the Veteran also submitted additional medical treatment records in June 2020 from his private treatment clinician, Dr. P. B., from the Centers for Advanced Orthopedics. As the Veteran's claim for an increased rating for his bilateral knee disability was received after February 13, 2013 and he provided the above information from his clinician, a waiver in lieu of AOJ review is not required. I. As new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss, the claim is reopened. In a rating decision of July 2010, the RO denied the Veteran's claim for service connection for right ear hearing based on a finding of a January 2010 VA audiological findings, of normal hearing in the right ear. The Veteran was informed of the rating decision and his appellate rights. The Veteran did not provide a notice of disagreement (NOD) or provide new and material evidence within one year of the rating decision promulgation. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Hence, the rating decision of July 2010 is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 19.20, 19.52, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by submitting new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The evidence received includes a January 2017 VA audiological examination showing right ear hearing loss, additional treatment records, lay statements, and hearing testimony. The Board finds this evidence relating to his right ear hearing loss is new and material, and therefore the claim for service connection for right ear hearing loss is reopened. As the Board finds that the evidence received since the April 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim for right ear hearing loss, the claim is thus, reopened. 38 U.S.C. § 5107 (2012); Annoni v. Brown, 5 Vet. App. 463 (1993). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for right ear hearing loss is granted. The Veteran contends that he is entitled to service connection for hearing loss in his right ear since he was subjected to hazardous noise exposure in service. During his Board hearing, his attorney argued that the same noise exposure resulted in the grant of service connection for left ear hearing loss, and thus, service connection for the right ear should also be granted. He underwent an audiology examination in January 2017. The pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 50 50 LEFT 05 40 35 95 95 The average pure tone threshold was 34 decibels in the right ear and his word recognition score using the Maryland CNC test was 94 percent in the right. The Veteran's right ear hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The Veteran contends that his right ear hearing loss was incurred in service and has continued since. During his VA examination of March 2010, he reported that although he used hearing protection during training, he was subjected to positive to the sounds generated by Howitzers and 8-inch cannons. The RO subsequently granted service connection for the left ear based on a finding of exposure to hazardous noise. Thus, hazardous noise exposure is conceded. The Veteran consistently argued that his right ear hearing loss was incurred in service. He competently and credibly testified that his military occupational specialty (MOS) was an artilleryman who was exposed to hazardous noise. He also testified that he believed that the same injury that caused his service-connected left ear hearing loss also caused the right ear hearing loss. Of records is a February 2009 statement from the Veteran's ex-wife, A. E. R., whom he married in 1971. She indicated that she had known him since 1966 before military service, and he did not appear to have any noticeable hearing loss service. Thus, the Board finds the Veteran's statements regarding his in-service noise exposure to be both competent and credible. Layno, 6 Vet. App. 465 (1994); Barr, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfaction. Shedden, 381 F.3d at 1166-67. The Veteran was afforded a VA examination in January 2017. The examiner diagnosed bilateral sensorineural hearing loss and provided a negative nexus opinion for the right ear hearing loss. She explained that the "Veteran's hearing thresholds at the time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise-induced hearing loss will not progress once it is stopped.' Therefore, it is my opinion that the Veteran's current hearing loss is less likely than not related to military noise exposure/acoustic trauma." The Board finds the audiological examiner's findings unpersuasive as to the Veteran's right ear hearing loss and assigns little probative value to his negative nexus opinion. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). The examiner failed to address the Veteran's contention of having had decreased hearing acuity since service and why only the left ear would be affected by VA conceded noise exposure considering no other intervening factor/indication of hearing loss. The Board finds that the Veteran's right ear hearing loss was incurred in service and has continued since. The Veteran provided credible lay statements, including from his ex-wife, A. E. R., that he did not have noticeable hearing problems before service. The Veteran has continuously held that his bilateral hearing loss began in service, and he has experienced the continuity of symptoms since then. Hearing loss is a chronic condition, as outlined in 38 C.F.R. § 3.309 (a). Therefore, the theory of the continuity of symptomatology applies to his right ear hearing loss. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331. As the Board finds the Veteran's lay statements regarding the onset and continuity of his hearing loss to be both competent and credible, a grant based on the continuity of symptomatology is warranted. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for bilateral hearing loss. 38 U.S.C. § 5107 (b). The claim is granted. 2. Entitlement to service connection for OSA is denied. The Veteran has been diagnosed with OSA. He contends that it was incurred in service. The Veteran's service treatment records (STRs) do not note a complaint, treatment, or diagnosis of a sleep disorder or breathing disorder. At his separation in May 1970, the Report of Medical History noted normal systems, including lungs and chest. The post-service evidence of record contains a June 2015 clinical form questionnaire, noting the Veteran's report of "3-5 years of sleep problems." The sleep study of the same date diagnosed obstructive sleep apnea with periods of breathing cessation during the night. During his March 2020 Board hearing, the Veteran testified that in service, snoring had always been an issue, but he did not remember complaining "over 50 years ago." When asked if anyone who was close to him while he was in service complained to him about his snoring, the Veteran was unable to recall. He stated that his wife complains about his snoring. Additionally, he denied daytime fatigue or headaches in service or post-service, even after working for 27 years as a driver with the Census Bureau. He stated that he had nightmares. During the Board hearing, the Veteran indicated that he weighed 180 pounds with a size 15 neck and was 205 pounds now, with a size 18 neck size. Obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017. Notwithstanding, the Veteran, however, has not argued that any of his service-connected disabilities, including bilateral knee disabilities, hearing loss, and tinnitus, caused or aggravated obesity which then caused OSA. The record also does not indicate that his service-connected disabilities have caused or aggravated obesity. After considering the record, the Board finds that service connection for OSA is not warranted. The record lacks any competent lay or medical evidence of a relationship between the Veteran's current OSA disorder and his active service. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Veteran has been diagnosed with sleep apnea. He has not described an event, injury, or disease that occurred in service that he believes was the origin of his sleep apnea. In his VA Form 9, his representative stated that the record warranted service connection for sleep apnea because of "several risk factors and personal injury while on active duty," but then did not state what the risk factors were or what the personal injury was. At his hearing, the stated that he snored for many years. However, he stated that he could not recall if anyone who served with him complained about his snoring while on active duty. The second element set forth in McLendon is not met. Even if the second element was met, there is no evidence indicating that the Veteran's current sleep apnea may be related to service. The Veteran has not provided a lay statement explaining why he believes that his sleep apnea is related to service. Additionally, the medical evidence of record does not address whether the sleep apnea is related to service, and therefore cannot indicate that it is related to service. The third McLendon element is not met. Therefore VA was not required to provide a medical examination for sleep apnea. The Board also acknowledges that the Veteran is competent to report observable symptoms, like sleep difficulties and snoring. The descriptions are also credible. However, he did not provide a lay description of why he believes his sleep apnea is due to service. The Board finds no competent, probative medical or lay evidence that satisfies the nexus element of the service connection claim. Shedden, 381 F.3d at 1166-67. Accordingly, the preponderance of the medical evidence of record is against finding that the Veteran's OSA was incurred in service or in any way related to her active service period. Therefore, service connection is not warranted for an OSA disorder. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990).). III. Increased Disability Rating for Bilateral Knee Disabilities Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also to be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Code "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period before and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria before February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. The Veteran's bilateral knee disability is currently rated at 10 percent each, under Diagnostic Code 5003-5260. 38 C.F.R. § 4.71. A hyphenated diagnostic code is used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code indicates that limitation of motion of the left knee, under Diagnostic Code 5260, is the service-connected disability, and degenerative arthritis, under Diagnostic Code 5003, is a residual condition. Diagnostic Code 5003 applies to degenerative arthritis and instructs that if the limitation of motion is noncompensable, a rating of 10 percent applies for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. The 20 percent and 10 percent ratings based on X-ray findings above will not be combined with ratings based on the limitation of motion. 38 C.F.R. § 4.71a, Note I. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5261, the limitation of extension of the leg, a 10 percent evaluation is warranted when the extension of the leg is limited to 10 degrees. A 20 percent evaluation is warranted when the extension of the leg is limited to 15 degrees. A 30 percent is warranted when the extension of the leg is limited to 20 degrees. A 40 percent evaluation is warranted when the extension of the leg is limited to 30 degrees. A 50 percent evaluation is warranted when the extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a. The normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5258 governs cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joints. Under Diagnostic Code Diagnostic Code 5259, a 10 percent is warranted for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. A 10 percent rating is the sole option under this diagnostic code. Diagnostic Code 5257 governs instability and subluxation. Before February 07, 2021, slight recurrent subluxation or lateral instability of the knee is rated 10 percent. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 is based on instability and subluxation, not the limitation of motion. As a result, the criteria outlined in DeLuca do not apply. DeLuca, 8 Vet. App. 202, 206 (1995). Under the amended regulations, Diagnostic Code 5257 now governs Recurrent subluxation or instability and Patellar instability of the knee. The new regulation provides that for: Recurrent subluxation or instability: A 10 percent 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 is warranted for one of the following: (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; or (b) 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 is warranted for the 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. Patellar instability: A 10 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board notes that VA has a duty to conduct a contemporaneous examination when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Here, however, the Veteran has provided a private April 2020 Knee and Lower Leg Conditions DBQ, which addressed the current severity, estimated range of motion during flare-ups and after repeated use over time, and conducted passive range of motion testing. Remand for a new examination is not necessary because the April 2020 DBQ provides the Board with information sufficient to make a well informed decision. 1. Separate ratings under Diagnostic Code 5003. During his March 2020 Board hearing, the Veteran's attorney argued that separate ratings for his bilateral knee disability are warranted since there are X-ray findings of arthritis with the medical evidence from Johns Hopkins of incapacitating exacerbations. The Veteran's arthritis of the right knee and left knee are each compensated under Diagnostic Code 5260 for painful limitation of flexion. As such, a separate rating under Diagnostic Code 5003 is not allowed. Additionally, the criteria for a 20 percent rating under Diagnostic Code 5003 are not for the left knee during the appeal period or for the right knee prior to February 1, 2018. Although the records from Johns Hopkins discuss the Veteran's painful and limited knee motion, they do not show that his knee disabilities were incapacitating. Private medical records from April 2017 show that he had right knee pain, with normal extension and flexion limited to 120 degrees. He had normal strength, normal stability testing, and a large effusion in his right knee, which was aspirated. He was also treated for left knee pain in April 2017, it was "acute," and he had stiffness. The private provider noted that "[the Veteran] denies any instability or twisting or catching or major effusion." His left knee range of motion was normal extension and flexion limited to 120 degrees and pain on passive range of motion testing. There was no pain or laxity on collateral cruciate stress test. A x-ray showed "mild-moderate" arthritis in the left knee. In May 2017, he had "significant" arthritis in his right knee, with stiffness, pain, and swelling. His extension was normal and his flexion was limited to 120 degrees. He had normal strength and stability tests were normal. He had a moderate effusion. A December 2017 treatment note indicates that the Veteran "uses a cane to assist with mobility secondary to knee pain." A January 2018 record from Johns Hopkins stated that the Veteran had chronic knee pain, wore a knee support, but did not use an assistive device. On February 1, 2018, a private medical record noted that a right total knee replacement was required because the Veteran had all of the following: end stage DJD, increased pain, worsening pain despite conservative treatment, pain worsening with activity, pain worsening during weight bearing, pain interferes with or "limits" activities, passive range of motion increased pain, and range of motion limited. At his March 2020 private knee examination, the provide concluded that at worst, his ROM was from 0 degrees of extension to 90 degrees of flexion. He could walk up to four city blocks and did not use an assistive device. The private medical records do not show that his arthritis rendered him incapacitated. The records showed that he had bilateral knee pain and arthritis that was more severe in the right knee. At worst, his right knee pain "limited" his activities. This does not show that he was debilitated, incapable of activities of daily living, or otherwise incapacitated by his DJD in either knee to warrant a 20 percent rating under Diagnostic Code 5003 in either knee. 2. Right knee disability a. Entitlement to a disability rating greater than 10 percent for a right knee disability prior to February 1, 2018, is denied. Prior to February 1, 2018, the record shows the Veteran's complaint of right knee pain, stiffness, swelling, and arthritis. The Veteran rated his bilateral knee pain between a range from 0-8, with pain being worse at night. In September 2017, the Veteran was afforded a Knee and Lower Leg Conditions DBQ. He reported worsening knee pain and soreness in his knees. He did not report flare-ups. He reported pain with impairment of the knees with prolonged standing, walking, bending, and squatting. The examiner diagnosed bilateral knee strain and degenerative arthritis of both knees. His extension was normal bilaterally and his flexion was limited to 120 degrees bilaterally. He had pain on flexion and extension bilaterally. There was pain with weight-bearing and evidence of crepitus, but no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in either knee. There was pain on passive range of motion testing. There was no evidence of pain when the joint was used in non-weight bearing. The Veteran was able to perform repetitive use testing with three repetitions. His range of motion did not change: his extension remained 0 degrees bilaterally and his flexion was 120 degrees bilaterally. The Veteran was not being examined immediately after repetitive use over time. But the examiner concluded that pain and weakness significantly limited functional ability with repeated use over a period of time. The examiner found that after repeated use over a period of time, his ranges of motion would not change, and specified that extension was normal at 0 degrees, and flexion was limited to 120 degrees bilaterally. The examiner noted that additional factors contributing to the Veteran's bilateral knee disability included less movement than normal, weakened movement, and interference with standing. His strength was 4/5 bilaterally, indicated active movement against some resistance. The examiner found that he did not have ankylosis or muscle atrophy in either knee. The examiner stated that the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Furthermore, no history of recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment of the bilateral knee, and no meniscal condition. Joint stability testing of the knees revealed normal Anterior, Posterior, and Medial, and Lateral instability testing. The examiner noted that the Veteran did not use any assistive devices for the normal mode of locomotion. Reviewing the evidence presented above, the Board finds that an evaluation greater than 10 percent is also not warranted under Diagnostic Code 5260, for the Veteran's right knee disability before February 01, 2018. The evidence does not show that his right knee flexion was limited to 30 degrees. At worst, his flexion was 120 degrees. He was already being compensated for his painful motion of his right knee joint by the assignment of a 10 percent rating under Diagnostic Code 5260 for painful limited flexion. 38 C.F.R. § 4.59. A separate rating under Diagnostic Code 5261 was also not warranted because the Veteran's right knee extension was normal for the entire period prior to February 1, 2018. Even though functional loss according to the factors contemplated by 38 C.F.R. §§ 4.40 and 4.45 must be considered, the criteria set forth in 38 C.F.R. § 4.71 must still be satisfied, and they are not in this case. There was also no subjective or objective evidence of instability of the right knee to warrant a separate rating under Diagnostic Code 5257. He also did not have a right meniscus condition. Therefore a rating under Diagnostic Code 5258 or 5259 is not warranted. For these reasons, a rating greater than 10 percent for a right knee disability prior to February 1, 2018 is denied. b. Entitlement to a 100 percent disability rating from February 1, 2018 to February 1, 2019 for a right knee disability is granted under Diagnostic Code 5055. On February 1, 2018, the Veteran underwent a right total knee replacement. Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following implantation of the prosthesis. Afterward, intermittent degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262, with a minimum 30 percent disability rating. Alternatively, a 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness. 38 C.F.R. § 4.71a. A 100 percent rating is granted for the period from February 1, 2018, to February 1, 2019. As will be discussed further below, a 30 percent rating is granted beginning February 2, 2019. c. Entitlement to a 30 percent rating is granted for a right knee disability beginning February 2, 2019. Private treatment notes from Dr. P. B. at the Centers for Advanced Orthopedics, dated in June 2020, noted that the Veteran had difficulty with prolonged standing, occasional flare-ups with moderate pain that limited his ability to complete daily activities or exercise. Increased aching and soreness with prolonged activities were also noted. His right knee had normal extension and his flexion was limited to 128 degrees. He had a "slight limp favoring the right knee suggesting muscle weakness in the right leg." The clinician assessed that from his clinical visit on March 18, 2020, his right knee healed appropriately from surgery in 2018, absent loosening or displacement; however, he continues to have functional limitation resulting in weakness and fatigue of the leg, likely related to years of osteoarthritis that resulted in the right knee replacement. In April 2020, the Veteran provided a Knee and Lower Leg Conditions DBQ, completed by his private clinician, T. E, on March 05, 2020. He reported that his knee pain worsened in 2018, and he had to have a right knee replacement. The Veteran reported flare-ups of the bilateral knee with severe pain and the inability to "barely walk." Regarding functional loss or functional impairment, the examiner noted that the Veteran reported that he was unable to stand or walk for a long time. The clinician diagnosed bilateral knee strain and degenerative arthritis, left knee instability, and total right knee replacement. His right knee extension was normal and his flexion was limited to 120 degrees. There was no change after repetitive testing. He had right knee pain during passive range of motion testing. There was pain when the joint was used in weight-bearing or non-weight-bearing. There was also moderate localized tenderness or pain to palpation on the patellar due to DJD. Contributing factors of the disability included pain on movement. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. The estimated right knee range of motion during flare-ups or when the joint was used repeatedly over a period of time was normal extension and flexion limited to 90 degrees. The examiner explained that the Veteran was unable to walk during a flare-up. The examiner found that the Veteran did not have muscle atrophy or ankylosis of the right knee. His right knee flexion and extension strength was normal, 5/5. Thee examiner found that the Veteran did not have a history of recurrent subluxation or lateral instability of the right knee. Joint stability testing was normal for the right knee. There was no history of recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, meniscal condition, or other tibial or fibular impairment of the right knee. The clinician noted that the Veteran had a total knee joint replacement of the right knee in February 2018, and the residuals therefrom were knee pain with limited range of motion. The clinician noted a right knee scar measuring 15 cm inches in length and 05 cm in width associated with right knee replacement surgery. The clinician noted that the Veteran did not use any assistive devices for the normal mode of locomotion for the bilateral knee. Beginning February 02, 2019, a minimum of 30 percent is warranted for residuals of total right knee replacement. As there is no probative evidence reflecting that the Veteran has severe painful motion or weakness, a 60 percent rating under Diagnostic Code 5055 is not warranted. The Veteran's right knee strength was normal when tested in March 2020. In June 2020, Dr. P. B. described a "slight" limp showing weakness. A slight limp is not indicative of "severe" weakness. Per Merriam-Webster's Collegiate Dictionary 1140 (11th ed. 2012), "severe" is defined as "very painful or harmful." Regarding painful motion, the Veteran was found to have had painful motion during active, passive, and repetitive use testing, and when the joint was used in weight-bearing or non-weight-bearing and contributed to functional loss. In March 2020, the Veteran stated that during a flare up he could "barely walk" and the examiner stated that he was unable to stand or walk for a long period of time. Although he had painful motion, it was not of a severity that required use of an assistive device. When not experiencing a flare-up, he was able to walk four blocks, but no farther. "Harm" is defined as causing physical damage or an injury. Id. at 569. The evidence does not show that the Veteran's painful motion has actually harmed him. He has not sustained additional physical damage or an injury due to painful motion. Although "limitation of motion" and "painful motion" are separate concepts, the Board is not precluded from considering limitation of motion in assessing painful motion under Diagnostic Code 5055. Tedesco v. Wilkie, 31 Vet. App. 360 (2019). Here, the Veteran's flexion at worst as reflected in his March 2020 private examination, was limited to 90 degrees during flare-ups or when the joint was used repeatedly over a period of time. Regarding his strength, Dr. T. E. specifically noted that it remained normal. Dr. P. B., in June 2020 noted that while the Veteran had functional limitation resulting in weakness and fatigue of the right knee, his ROM was 0-128 degrees of extension and flexion. At worst, the Veteran still retained approximately 65 percent of his flexion. His retained flexion and normal extension, combined with the finding that he was able to walk up to four city blocks that he did not need an assistive device due to painful motion, and that his painful motion has not caused harm, shows that his painful motion is not more closely described as "severe." A 60 percent rating under Diagnostic Code 5055 is not warranted. Diagnostic Code 5055 also states that intermediate degrees of residuals can be rated by analogy using Diagnostic Codes 5256, 5261, or 5262. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The Veteran retains mobility in his right knee and therefore does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is immobility of the joint in a fixed position). His right knee extension has been normal and at worst, his flexion is limited to 90 degrees during a flare-up. He is able to walk without an assistive device. Therefore does not have the functional equivalent of ankylosis. Diagnostic Code 5265 is not applicable. Diagnostic Code 5261 is also not applicable because his extension is normal, and even with pain, the 40 percent criteria are not met, as his extension would need to be limited to 30 degrees. Lastly, his symptoms do not approximate nonunion of the tibia and fibula with loose motion, and he does not require a brace. The March 2020 VA examiner did not find symptoms analogous to nonunion such as more movement than normal. Therefore a 40 percent rating under Diagnostic Code 5262 is not warranted. 3. Left knee disability a. Entitlement to a disability rating greater than 10 percent for a left knee disability is denied. In April 2017, the Veteran sought treatment for left knee pain that began a few days prior. He stated that he had stiffness. His extension was normal and his flexion was 120 degrees. There was no pain during passive range of motion testing. His doctor found that he did not have pain or laxity during a collateral cruciate stress test. X-rays were taken and they showed "mild-moderate" arthritis. The September 2017 VA examination report that describes the Veteran's left knee symptoms is described above. His symptoms for the remainder of the appeal period are discussed below. At his March 2020 private examination, his left knee extension was normal and his flexion was limited to 120 degrees. There was no change after repetitive testing. He had left knee pain during passive range of motion testing. There was pain when the joint was used in weight-bearing or non-weight-bearing. There was also moderate localized tenderness or pain to palpation on the patellar due to DJD. Contributing factors of the disability included pain on movement. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. The estimated left knee range of motion during flare-ups or when the joint was used repeatedly over a period of time was normal extension and flexion limited to 90 degrees. She explained that the Veteran was unable to walk during a flare-up. The examiner found that the Veteran did not have muscle atrophy or ankylosis of the left knee. His left knee flexion and extension strength was normal, 5/5. There was also objective evidence of crepitus bilaterally. There was no history of recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, meniscal condition, or other tibial or fibular impairment of the left knee. The clinician noted that the Veteran did not use any assistive devices for the normal mode of locomotion. The criteria for a higher rating for the left knee disability are not met. At worst, the Veteran's left knee flexion would be limited to 90 degrees during a flare-up. To meet the criteria for a 20 percent rating under Diagnostic Code 5260, his flexion would need to be limited to 30 degrees. A higher rating under Diagnostic Code 5260 is denied. His left knee extension has been normal throughout the appeal period. Even though his extension is painful, he is already being compensated for painful movement of the left knee joint by the rating assigned under Diagnostic Code 5260 and a separate rating is not warranted under Diagnostic Code 5261. 38 C.F.R. § 4.59. Even though functional loss according to the factors contemplated by 38 C.F.R. §§ 4.40 and 4.45 must be considered, the criteria set forth in 38 C.F.R. § 4.71 must still be satisfied, and they are not in this case. He also did not have a left meniscus condition. Therefore a rating under Diagnostic Code 5258 or 5259 is not warranted. For these reasons, a rating greater than 10 percent for a left knee disability is denied. b. A separate 10 percent disability rating for left knee instability, beginning August 08, 2017, is granted. A 10 percent rating for slight instability is warranted for the left knee instability under the earlier version of Diagnostic Code 5257. At his March 2020 Board hearing, the Veteran competently testified that regarding the instability, it was "tough to walk up and down flights of stairs without [his] knee wobbling." Although he had not fallen, it was very painful to participate in strenuous activities, i.e., walking, running, or doing any labor-intensive work. At his March 2020 private examination, a history of "slight" recurrent subluxation and lateral instability was noted for the left knee, but no recurrent effusion. Neither recurrent subluxation, lateral instability, nor recurrent effusion of the left knee was noted. The joint stability testing of the left knee noted joint instability. The joint stability testing of the left knee revealed normal Anterior, but 1+ Posterior, Medial, and Lateral instability testing. Prior to the March 2020 private Knee and Lower Leg Conditions DBQ, no VA examiner nor VA clinician noted a history of recurrent subluxation and lateral instability of the left knee. In March 2020, his clinician noted a "history of 'slight' recurrent subluxation and joint instability in the left knee. Therefore, a 10 percent under Diagnostic Code 5257 is warranted under the older regulations for slight instability, beginning August 08, 2017, the date of claim. A 20 percent rating is not warranted under either the older or newer regulations. Under the older regulations, no clinician nor examiner has noted the Veteran's instability to be moderate. The evidence does not show that the instability occurs frequently, and the Veteran did not provide a lay statement as to how often it occurs. Furthermore, earlier in the appeal period, there is no subjective or objective evidence of instability. At an April 2017 private treatment appointment for left knee pain, the provided noted, "[the Veteran] denies any instability or twisting or catching or major effusion." He also denied the September 2017 examiner stated that there was no history of instability or recurrent effusion of the left knee. Additionally, joint stability testing was normal. This shows that his disability is slight and not moderate. Under the newer regulations, no examiner noted the Veteran to have a sprain, incomplete ligament tear, or repaired complete ligament tear unrepaired or failed repair of complete ligament tear causing persistent instability, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, and all requiring a medically prescribed assistive device for ambulation. The lay evidence also does not support such a finding. The amended criteria are not more favorable to the Veteran. REASONS FOR REMAND Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Service connection for right ear hearing loss is granted above and the Board has characterized the remand issue as one of an increased rating for bilateral hearing loss because the ears will be rated together. At his hearing, the Veteran testified that his hearing has worsened since his VA examination in September 2017. He testified that his wife told him he spoke too loudly. He also stated that he underwent an audiology test sometime in 2018, and that it might have been with a private audiologist. A new VA examination is necessary to determine the current severity of his hearing loss. There is no audiology test from 2018 in the claims file. On remand, the RO should provide the Veteran with release forms for his private audiology provider, if he has one, and then attempt to obtain the 2018 audiogram if the required authorization is provided. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran with a release form for the medical records from his private audiologist. If he returns the requested information, attempt to obtain his private audiogram from 2018. 2. Determine if VA provided an audiogram in 2018 as part of the Veteran's treatment for his hearing loss. If an audiogram was provided in 2018, associate the results of the audiogram with the claims file. The Board notes that the results may be stored in an alternate system such as Vista Imaging. If VA did not provide audiogram in 2018, this should be documented. 3. Schedule the Veteran for an examination to determine the current severity of his bilateral hearing loss. The claims file must be provided to the examiner for review. All pertinent symptomatology and findings must be reported in detail. 4. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.