Citation Nr: 21073826
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 17-13 131
DATE: December 10, 2021

ORDER

Entitlement to a 10 percent rating prior to May 5, 2008 for left knee degenerative arthritis is granted.

Entitlement to a higher rating for left knee degenerative arthritis, rated as 10 percent disabling prior to October 20, 2014 and 20 percent from October 20, 2014 to August 11, 2020, is denied.

Entitlement to a rating in excess of 30 percent from October 1, 2020 for a total left knee arthroplasty is denied.

Entitlement to a separate 10 percent rating for the appeal period from February 4, 2011 to May 31, 2011 for left knee laxity is granted. 

Entitlement to a rating in excess of 20 percent from May 31, 2011 for left knee laxity is denied. 

REMANDED

Entitlement to service connection for tinnitus, to include as secondary to service connected hypertension, is remanded. 

FINDINGS OF FACT

1. For the appeal period prior to May 5, 2008, the Veteran's left knee degenerative arthritis manifested with pain, and without limited range of motion or other functional loss. 

2. For the appeal period prior to October 20, 2014, the Veteran's left knee degenerative arthritis manifested as flexion limited to, at worst, 60 degrees with full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, malunion or nonunion of the tibia and fibula or genu recurvatum.

3. For the appeal period from October 20, 2014 to August 11, 2020, the Veteran's left knee degenerative arthritis manifested as flexion limited to, at worst, 80 degrees with full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, malunion or nonunion of the tibia and fibula or genu recurvatum.

4. For the appeal period beginning on October 1, 2020, the Veteran's total left knee arthroplasty manifested as status post total knee arthroplasty residuals with intermediate degrees of residual weakness, pain, or limitation of motion; and flexion limited to, at worst 80 degrees, with extension limited to 20 degrees. 

5. For the appeal period from February 4, 2011 to May 31, 2011, the Veteran had left knee laxity that was slight. 

6. For the appeal period beginning on May 31, 2011, the Veteran's left knee laxity was manifested by, at worst, moderate medial or lateral instability; and without severe medial or lateral instability.

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating for the appeal period prior to May 5, 2008 for left knee degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260.

2. The criteria for an increased rating for left knee degenerative arthritis, rated as 10 percent disabling from October 20, 2014 and 20 percent disabling from October 20, 2014 to August 11, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5261.

3. The criteria for a rating in excess of 30 percent for the appeal period beginning on October 1, 2020 for a total left knee arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5055.

4. The criteria for a separate 10 percent for the appeal period from February 4, 2011 to May 31, 2011 for left knee laxity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5257.

5. The criteria for a rating in excess of 20 percent for the appeal period beginning on May 31, 2011 for left knee laxity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5257. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from February 1970 to November 1974. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2013 and February 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Indianapolis, Indiana. 

In addition, in a November 2020 rating decision, the AOJ granted service connection for a separate rating for a left knee scar and assigned an initial rating. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is not before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977).

Additional evidence, to include updated VA treatment records and a VA examination reports, were added to the record after the issuance of the September 2018 supplemental statement of the case. The Veteran's representative waived initial AOJ consideration of this evidence in a November 2021 submission. The Board may therefore consider such evidence.  See 38 C.F.R. § 20.1304.

Increased Rating  Left Knee

The Veteran seeks higher ratings for his service-connected left knee degenerative arthritis and left knee laxity. Specifically, the Veteran asserts that his left knee symptoms are manifested with popping, buckling, swelling, pain when bending or kneeling, and instability; the Veteran contends his left knee symptoms cause functional impairment in his daily activities, to include climbing stairs, walking, pain when sitting or lying, moving to standing, limited range of motion, weakness, pain with flare-ups, and needs to take pain medications. See e.g., Correspondence, August 23, 2007; see also Correspondence, January 21, 2009; see also Correspondence, April 1, 2010; see also Correspondence, October 15, 2014; see also Correspondence, October 17, 2018. The Veteran also asserted that he had been fitted for hinged knee orthotics and wore those on a daily basis. See Correspondence, May 30, 2009. Moreover, the Veteran complained of grinding and having to miss work due to his knee symptoms. See Notice of Disagreement, April 21, 2015. 

The Board notes that the Veteran seems to assert that there is clear and unmistakable error (CUE) as to the rating assigned for his left knee and asserts that he should have a higher rating back to the date of grant of service connection due to limitation of extension. See VA Form 21-4138 Statement in Support of Claim, August 3, 2020. However, as discussed above, the Veteran appears to be disagreeing with the ratings assigned for his service-connected left knee degenerative arthritis and left knee laxity, and therefore, the issues are properly characterized as increased rating claims and not CUE.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").]

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the applicable rating period occurred before the implementation of these revised diagnostic criteria and there is no pertinent evidence associated with the claims file after February 7, 2021. Therefore, the February 2021 are not applicable to his claims and the appropriate criteria is discussed below. In addition, the criteria for Diagnostic Codes 5260 and 5261 were not changed in this revision.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. It may find that the preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is in receipt of two separate ratings related to his knees. In this regard, the Veteran is service-connected for the left knee degenerative arthritis, total left knee arthroplasty and left knee laxity under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260, 5055, and 5257. His left knee degenerative arthritis is currently rated as noncompensable rating prior to May 5, 2008, 10 percent from May 5, 2008 to October 20, 2014 and 20 percent from October 20, 2014 to August 11, 2020. His total left knee arthroplasty is rated as 30 percent disabling beginning on October 1, 2021. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. His left knee laxity is rated as 20 percent from May 31, 2011 and noncompensable thereafter. 

Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). 

Traumatic arthritis is rated under the same diagnostic criteria as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 

Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Court recently held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018).

Ratings can be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. 

Knee replacements are evaluated under Diagnostic Code 5055. A maximum schedular 60 percent rating is warranted for residuals of severe painful motion or weakness. Intermediate degrees of residual weakness, pain, or limitation of motion are ratable by analogy to Diagnostic Code 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula), with a minimum 30 percent rating. 

Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege, that he has shin splints, tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Turning to the evidence, the Veteran was afforded a VA examination in May 2008 for bilateral pes planus. At that time, in pertinent part, the Veteran reported chronic pain in the left knee. X-ray imaging showed the Veteran had left knee degenerative osteoarthritis; he had not undergone surgery for his left knee. He used Tylenol to treat his pain. Upon physical examination, the Veteran was shown to have pain on palpation and during movement in the medial joint compartment. He had painful but full range of motion in the left knee joint, with pain starting at 130 degrees of flexion. There was good stability of the medial and lateral collateral ligaments and anterior and posterior cruciate ligaments. McMurray and Lachman tests were negative. After repetitive motion in the left knee, the Veteran had increased pain, easy fatigability, lack of endurance, and without change in range of motion. The Veteran's gait was normal without assistive devices. 

The Veteran was afforded a VA examination in August 2009. At that time, the Veteran reported left knee pain and swelling; he stated his left knee had progressively worsened. He reported he used pain medications for treatment, and he indicated he responded well and his pain was relieved. He had not been hospitalized nor undergone surgery. There were no limitations on standing or walking. There was no evidence of neoplasm, constitutional symptoms of arthritis, incapacitating episodes of arthritis, evidence of abnormal weight-bearing, loss of a bone or part of a bone, nor inflammatory arthritis. 

Upon physical examination in August 2009, the Veteran had left knee tenderness; he did not have bumps consistent with Osgood-Schlatter's disease, crepitation, mass behind knee, clicking, snaps, grinding, instability, patellar abnormality, meniscus abnormality, nor abnormal tendons or bursae. Range of motion measurements of the left knee showed pain and were as follows: flexion was to 97 degrees with full extension. There was no additional limitation with repetitive motion nor objective evidence of pain following repetitive motion. The Veteran's left knee did not have any significant effects on his usual occupation; had moderate effects on chores, exercise, sports, recreation, and toileting; and had mild effects on driving. The Veteran reported he had to hire someone to do yard work because bending, squatting, and toileting caused discomfort. 

An August 2009 VA treatment record indicates the Veteran had a painful knee, but could walk unlimited distance with discomfort, swelling, and locking. 

Of record is a January 2011 lay statement submitted by the Veteran's friend, K.T. In her statement, K.T. indicated the Veteran has complained of pain in his knees for years, pain that had recently worsened, and that he had difficulty walking. 

At a February 2011 Board hearing, the Veteran testified that his left knee symptoms manifested in pain and swelling, required taking pain medication, wore a knee brace issued by a VA medical center, used a cane to help with walking, had difficulty walking stairs, popping, loss of balance, and stumbling. This hearing addressed the underlying service connection claim. 

The Veteran was afforded a VA examination in February 2011. At that time, the Veteran reported he had intermittent pain in his knees that had its onset in service and had worsened since. He indicated he had swelling, popping, and took medication to treat his pain. Symptoms included giving way, instability, pain, stiffness, weakness, locking episodes several times a week, warmth and swelling symptoms of inflammation, limited standing for 15 to 30 minutes, and limited walking to less than one mile. He used orthotic inserts and a cane. 

Upon physical examination in February 2011, the Veteran was not shown to have abnormal weight-bearing, loss of a bone or part of a bone, nor inflammatory arthritis. His left knee showed heat, tenderness, guarding of movement, tenderness at the medial and lateral joint lines, exquisite pain laterally with guarding, bumps consistent with Osgood-Schlatter's disease, grinding, patellar abnormality described as subpatellar tenderness, meniscus abnormality, effusion, and positive McMurray's test. Range of motion measurements of the left knee showed pain and were as follows: flexion was to 70 degrees with full extension. There was objective evidence of pain following repetitive motion with additional limitations of range of motion after repetitions. Range of motion measurements after repetitive motion showed limited flexion to 45 degrees with full extension. There was no joint ankylosis. The Veteran had lateral instability of the left knee. The examiner found significant effects of the knees on his usual occupation due to decreased mobility, pain, increased absenteeism, and increased walking resulting in impatience and employee complaints. The Veteran's left knee had a severe effect on chores and shopping; prevented exercise, sports, and recreation; and had a moderate effect on traveling, bathing, dressing, and driving. The examiner noted the Veteran had to stretch his legs every half hour when seated, or hourly when traveling; and noted popping, catching, and grinding when rising from a seated position. 

The Veteran was afforded a VA examination in May 2011. At that time, the Veteran stated his condition had progressively worsened, he took pain medication to treat his pain but responded poorly. Symptoms included deformity, giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, locking episodes several times a week, and symptoms of inflammation included warmth, swelling, and tenderness. Standing was limited to 15 to 30 minutes; walking was limited to less than one mile. He used an orthotic insert and brace. 

Upon physical examination in May 2011, the Veteran's left knee showed bony joint enlargement, effusion, tenderness, pain at rest, instability, guarding of movement, tenderness on the medial joint line and patella with range of motion, bumps consistent with Osgood-Schlatter's disease, grinding, and moderate instability that was medial/lateral. The Veteran had abnormal medial/lateral collateral ligament stability in 30 degrees of flexion that showed laxity and subpatellar tenderness. Range of motion measurements of the left knee showed pain and were as follows: flexion was to 60 degrees with full extension. There was objective evidence of pain following repetitive motion with additional limitations of range of motion after repetitions. Range of motion measurements after repetitive motion showed limited flexion to 45 degrees with full extension. The examiner found significant effects of the knees on his usual occupation due to decreased mobility, pain, problems with lifting and carrying, and increased tardiness. The Veteran's left knee had a severe effect on chores and shopping; prevents exercise, sports, and recreation; and had a moderate effect on traveling, bathing, dressing, and driving. The examiner noted the Veteran needed to stretch his legs every half hour or so when seated. 

The Veteran was afforded a VA examination in January 2015. At that time, the Veteran reported pain, swelling, and stiffness that had increased since his 2011 VA examination; swelling, constant grinding, and pain were rated as a 7 or 8 out of 10 pain intensity. The Veteran reported that his pain increased to a 10 out of 10 pain intensity by the end of the workday. He was awaiting clearance for a total knee replacement. He denied flare-ups of the knee. He reported functional loss or functional impairment that was described as pain, decreased function regardless of use, constant pain, inability to walk or stand for any length of time, and inability to squat or kneel. 

Upon physical examination in January 2015, range of motion measurements were as follows: flexion was to 90 degrees; and extension was to 15 degrees. Range of motion itself was not contributed to a functional loss. Pain was noted on flexion and extension and caused a functional loss. There was evidence of pain with weight-bearing throughout. The Veteran was able to perform repetitive-use testing with at least three repetitions; there was additional functional loss or range of motion after three repetitions due to pain, weakness, and lack of endurance. Range of motion measurements after repetitions were as follows: flexion was to 60 degrees; extension was to 15 degrees. The Veteran was not examined immediately after repetitive-use over time; the examination supported the Veteran's statements describing functional loss with repetitive-use over time. Pain, weakness, and lack of endurance significantly limited functional ability with repetitive-use over a period of time. The examiner could not describe this in terms of range of motion because the Veteran was not examined following repetitive-use over time. Additional factors contributing to the disability included less movement than normal, deformity, disturbance of locomotion, and interference with standing. 

Muscle strength testing in January 2015 showed normal muscle strength. There was no reduction in muscle strength nor atrophy. The Veteran did not have ankylosis. There was no recurrent subluxation or lateral instability shown. Joint stability testing was performed and results were within normal limits. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have or ever had a meniscus (semilunar cartilage) condition. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There was no objective evidence of crepitus. Traumatic arthritis was documented. The examiner noted the Veteran's left knee impacted his ability to work due to being required to have inpatient contact, which necessitated traveling throughout a large facility, and symptoms of pain, decreased function regardless of use, constant pain that interfered with his ability to walk or stand for any length of time, and an inability to squat or kneel. 

The Veteran was afforded a VA examination in May 2018. At that time, the Veteran reported increase in pain in his left knee due to the knee getting worse, increased pain, constant pain rated as a 9 or 10 out of 10 pain intensity, pain not alleviated with pain medication, and pain even when not using the knee. He endorsed flare-ups of the knee described as flared when walking with his weight. Functional loss or functional impairment was described as inability to cut the grass, extended walking, climbing stairs, or sports. 

Upon physical examination in May 2018, range of motion measurements were as follows: flexion was to 80 degrees, with full extension. Range of motion itself contributed to a functional loss due to inability to completely flex the knee. Pain was noted on flexion and extension and caused a functional loss. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness on the subpatellar and supra patellar with large effusion noted lateral to the patella. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions; there was additional functional loss or range of motion after three repetitions due to pain. Range of motion measurements after repetitions were as follows: flexion was to 60 degrees, with full extension. The Veteran was not examined immediately after repetitive-use over a period of time; the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive-use over a period of time. The Veteran was not examined during a flare-up; the examination was neither medially consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. Additional factors contributing to the disability included less movement due to pain.

Muscle strength testing in May 2018 showed active movement against some resistance in flexion and extension; there was a reduction in muscle strength. The Veteran had muscle atrophy that was due to his service-connected left knee disorder. His left lower extremity measured 38 centimeters in circumference, the more normal side measured 40 centimeters. Ankylosis was not shown. Joint stability testing was normal. There was a history of recurrent effusion lateral to left patella. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have or ever had a meniscus (semilunar cartilage) condition. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a brace as a normal mode of locomotion worn daily on his left knee. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's left knee impacted his ability to work due to having to retire because he could not do prolonged standing or walking. 

The Veteran was afforded a VA examination in July 2019. At that time, the Veteran reported difficulty getting into a prone position; difficulty bending the knees; difficulty doing physical raining; and more frequent pain and decreased mobility in his knees. Current symptoms included pain and decreased mobility. He treated with physical therapy and knee braces. He endorsed flare-ups of the knee described as squatting, bending, using stairs, prolonged walking and standing caused pain. He reported functional loss or functional impairment as during pain flares he had difficulty with squatting, bending, using stairs, and prolonged walking and standing. 

Upon physical examination in July 2019, range of motion measurements were as follows: flexion was to 100 degrees, with full extension. Range of motion itself did not contribute to a functional loss. Pain was noted on flexion and caused a functional loss. There was mild to moderate pain in the patella tendon and whole joint; unclaimed extremity noted. There was evidence of pain with weight-bearing and crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time; the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain significantly limited functional ability with repetitive-use over a period of time. The examiner was able to describe in terms of range of motion as follows: flexion to 100 degrees, with full extension. The Veteran was not examined during a flare-up; the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. Pain significantly limited functional ability with flare-ups. The examiner was able to describe in terms of range of motion as follows: flexion was to 100 degrees, with full extension. Additional factors contributing to the disability included interference with standing, interference with sitting, and prolonged sitting and standing caused pain. 

Muscle strength testing in July 2019 showed normal strength. There was not a reduction in muscle strength. The Veteran did not have muscle atrophy. Ankylosis was not shown. Joint stability testing was normal. There was no history of recurrent effusion. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have or ever had a meniscus (semilunar cartilage) condition. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a brace for knee stability and knee pain. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's left knee impacted his ability to work due to squatting, bending, using stairs, prolonged walking, and prolonged standing caused pain that limited the amount he could perform these actions. There was objective evidence of pain with the left knee when used in non-weight-bearing. Passive range of motion measurements were the same as active range of motion. Range of motion measurements on passive range of motion with pain was the same as active range of motion. 

An August 2020 VA treatment record indicates the Veteran underwent a total knee arthroplasty on the left side. 

An August 2020 VA treatment record indicates the Veteran, following left knee total replacement, had little to now knee pain, he was independent with mobility and activities of daily living and enjoyed cycling. 

The Veteran was afforded a VA examination in June 2020. At that time, the Veteran reported his knee condition had worsened, with increased pain on walking, and that he had a planned total knee replacement that had been postponed due to the COVID-19 pandemic. He denied flare-ups. He reported functional loss described as knee pain with climbing stairs, squatting, and walking. 

Upon physical examination in June 2020, range of motion measurements were as follows: flexion was to 90 degrees, and extension was to 15 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on flexion and extension and did not cause a functional loss. There was evidence of moderate tenderness at the medial and lateral joint lines. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions; there was not additional functional loss or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive-use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repetitive-use over a period of time. Additional factors contributing to the disability included less movement than normal; disturbance of locomotion; and interference with standing. 

Muscle strength testing in June 2020 showed normal strength. There was not a reduction in muscle strength. The Veteran did not have muscle atrophy. Ankylosis was not shown. Joint stability testing was normal. There was no history of recurrent subluxation nor lateral instability. There was not a history of recurrent effusion. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have or ever had a meniscus (semilunar cartilage) condition. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a cane as a normal mode of locomotion for his knee condition. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's knee impacted his ability to work due to knee pain with climbing stairs, squatting, and walking. There was no evidence of pain on passive range of motion testing. There was no evidence of pain when the joint was used in non-weight-bearing. The opposing joint was tested. 

The Veteran was afforded a VA examination in October 2020. At that time, the Veteran reported pain with weight-bearing, occasional swelling, and a sense of transient locking. Current symptoms included grinding with motion, pain with weight-bearing, persistent swelling, intermittent pain in the center of his knee if he sits in one positions too long and giving way without falling. The Veteran endorsed flare-ups described as stiffness and pain when sitting in one position for prolonged periods, and an inability to cross his legs. He reported functional loss or functional impairment as knee buckling, swelling that limited time on his knee, required the use of a cane, daily activities had changed, inability to do stairs, inability to get in the bathtub, no longer going to stores due to needing a walker or cane, and insecurity when weight-bearing. 

Upon physical examination in October 2020, range of motion measurements were as follows: flexion was to 80 degrees; and extension was to 20 degrees. Range of motion itself contributed to a functional loss due to limited walking. Pain was noted on flexion and extension and shown to cause a functional loss. There was objective evidence of localized tenderness or pain that was moderate of the patella. There was evidence of pain with weight-bearing. there was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time; the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain significantly limited functional ability with repetitive-use over a period of time. The examiner was able to describe in terms of range of motion as follows: flexion to 80 degrees, and extension to 20 degrees. The Veteran was not examined during a flare-up; the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. Pain significantly limited functional ability with flare-ups. The examiner was able to describe in terms of range of motion as follows: flexion to 80 degrees, and extension to 20 degrees. Additional factors contributing to the disability included swelling, disturbance of locomotion, interference with sitting, interference with standing, and recent total knee arthroplasty with persistent swelling and limited motion. 

Muscle strength testing in October 2020 showed active movement against gravity in flexion and extension. There was a reduction of muscle strength that was entirely due to his left knee diagnoses. The Veteran did not have muscle atrophy. Ankylosis was not shown. Joint stability testing was normal; there was no history of recurrent subluxation or lateral instability shown. There was a history of moderate left knee effusion and warmth. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have or ever had a meniscus (semilunar cartilage) condition. The examiner indicated the Veteran underwent total knee joint replacement in August 2020 and had intermediate degrees of residual weakness, pain, or limitation of motion. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the constant use of a cane and the occasional use of a walker as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's left knee impacted his ability to work due to limited ability to sit and walk for extended periods. There was no objective evidence of pain when used in non-weight-bearing. Passive range of motion was the same as active range of motion. The opposing joint was tested.

A December 2020 VA treatment record indicates the Veteran no longer used opiates for chronic knee pain and used Advil and practiced physical therapy exercises at home. 

A December 2020 VA treatment record indicates the Veteran had full extension and flexion to 105 degrees, with moderate swelling on the posterior knee, good strength distally, and a scar that was well-healed. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported left knee symptoms or range of motion measurements that are worse than those noted above.

Based on the foregoing, the Board finds that an initial 10 percent rating is warranted for the Veteran's left knee degenerative arthritis for the appeal period prior to May 5, 2008. In this regard, the evidence shows that the Veteran's left knee degenerative arthritis has consistently manifested in pain, with interference with prolonged walking and/or standing and interference with daily activities, to include chores, shopping, and exercise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record is at least evenly balanced to show that the Veteran's left knee degenerative arthritis manifests in pain, without limited range of motion or other functional loss. The Veteran has consistently reported pain that resulted in difficulty with prolonged standing and walking. Therefore, the Board concludes that his left knee degenerative arthritis warrants a compensable rating based on pain and functional impairment. 38 C.F.R. §§ 4.40 and 4.45; See also DeLuca v. Brown, supra.

For the appeal period prior to October 20, 2014, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left knee degenerative arthritis. In this regard, the Veteran's left knee flexion was limited to, at worst, 60 degrees at his May 2011 VA examination. The Veteran had full extension at all times prior to October 20, 2014. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 nor a compensable rating under Diagnostic Code 5261. Specifically, as demonstrated during the VA examinations of record, the Veteran had pain on motion but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion or extension. The Board finds that they do not more nearly approximate flexion that is limited to 30 degrees of the left knee at any time prior to October 20, 2014. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran is not entitled to a rating in excess of 10 percent for his left knee disorder under Diagnostic Code 5260 prior to October 20, 2014. Moreover, the Veteran was not shown to have extension limited to 10 degrees of the left knee at any time during prior to October 20, 2014. Id. Therefore, the Veteran is not entitled to a rating in excess of 10 percent in his left knee disorder under Diagnostic Code 5261 prior to October 20, 2014. 

For the appeal period from October 20, 2014 to August 11, 2020, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's left knee degenerative arthritis. In this regard, the Veteran's left knee flexion was limited to, at worst, 80 degrees at his May 2018 VA examination. The Veteran had full extension at all times from October 20, 2014 to August 11, 2020. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 20 percent, from October 20, 2014 to August 11, 2020 under Diagnostic Code 5260 nor a compensable rating under Diagnostic Code 5261. Specifically, as demonstrated during the VA examinations of record, the Veteran had pain on motion but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion or extension. The Board finds that they do not more nearly approximate flexion that is limited to 15 degrees of the left knee at any time from October 20, 2014 to August 11, 2020. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran is not entitled to a rating in excess of 20 percent for his left knee disorder under Diagnostic Code 5260 from October 20, 2014 to August 11, 2020. Moreover, the Veteran was not shown to have extension limited to 10 degrees of the left knee at any time during between October 20, 2014 to August 11, 2020. Id. Therefore, the Veteran is not entitled to a rating in excess of 20 percent in his left knee degenerative arthritis under Diagnostic Code 5261 from October 20, 2014 to August 11, 2020. 

For the appeal period beginning October 1, 2020, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's left total knee replacement. In this regard, the Veteran's left knee was manifested by intermediate degrees of residual weakness, pain, or limitation of motion. Additionally, the Veteran's left knee flexion was limited to, at worst, 80 degrees at his October 2020 VA examination. The Veteran's extension was limited to 20 degrees at his October 2020 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 30 percent, beginning October 1, 2020, under Diagnostic Code 5260 nor a compensable rating under Diagnostic Code 5261. Additionally, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent, beginning October 1, 2020, under Diagnostic Code 5055. As noted above, the Veteran underwent a right knee total replacement on August 11, 2020. He has been awarded a temporary total rating under Diagnostic Code 5055 that expired as of October 1, 2020. Beginning October 1, 2020, the Veteran's left total knee replacement was manifested by, at worst, as pain, swelling and stiffness without severe painful motion or weakness. The October 2020 VA examiner noted the Veteran's post-replacement residuals consisted of pain, swelling and stiffness; the examiner noted intermediate severity of such residuals. Moreover, the evidence does not show that the Veteran had instability in the right knee which is productive of severe painful motion, weakness, or limitation of motion consistent with a rating in excess of the minimum 30 percent. The record does not establish, and the Veteran has not alleged or muscle atrophy beginning October1, 2020. Furthermore, the record reflects that the Veteran's left total knee replacement has not resulted in ankylosis, limitation of extension to 30 degrees or more, or nonunion of the tibia and fibula with loose motion requiring a brace since October 1, 2020, in order to warrant a rating in excess of 30 percent under Diagnostic Codes 5256, 5261, or 5262. Therefore, a rating in excess of 30 percent for a left total knee replacement for the period beginning on October 1, 2020 is not warranted. 

For the appeal period from February 4, 2011 to May 31, 2011, the Board finds that a compensable separate rating, but not higher than 10 percent, for left knee laxity is warranted. In this regard, the Veteran's left knee laxity was first shown on examination at a February 2011 VA examination, at which time the examiner found the Veteran had left knee laxity. The Veteran's left knee laxity was not shown to be manifested by moderate medial or lateral instability at his February 2011 VA examination. Specifically, as demonstrated during the VA examinations of record, the Veteran had, at worst, lateral instability that was described as loss of balance, instability sensation, and giving way without falling. The Board finds that these symptoms therefore, more closely approximate slight lateral instability, and do not more nearly approximate moderate medial or lateral instability to warrant a higher 20 percent rating. Id. Therefore, the Veteran is not entitled to a rating in excess of 10 percent for his left knee laxity under Diagnostic Code 5257 for the appeal period from February 4, 2011 to May 31, 2011.

The Board further finds that a rating in excess of 20 percent is not warranted for his left knee laxity for the appeal period beginning on May 31, 2011. The Veteran's left knee laxity was manifested by, at worst, moderate medial or lateral instability shown at his May 2011 VA examination. Specifically, as demonstrated during the VA examinations of record, the Veteran had, at worst, lateral instability that was described as grinding, tenderness, pain at rest, subpatellar tenderness, and laxity. The Board finds that these symptoms therefore, more closely approximate moderate lateral instability, and do not more nearly approximate severe medial or lateral instability to warrant a higher 30 percent rating. Id. Therefore, the Veteran is not entitled to a rating in excess of 20 percent for his left knee laxity under Diagnostic Code 5257 for the appeal period beginning on May 31, 2011.

The Board also notes that, while the Veteran reported having flare-ups during his May 2018, July 2019, and October 2020 VA examinations, the examiner did not estimate the degree of any additional loss in range of motion during flare-ups, and found that the pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups in May 2018 and October 2020 VA examinations. The examiner estimated range of motion during flare-ups in July 2019 as flexion to 100 degrees with full extension even in contemplation of the information procured. Additionally, in the VA examination reports of record, physical activity, such as repetitive use testing, revealed no additional loss of function. Therefore, the Board finds no prejudice to the Veteran in this regard, as the findings noted in the VA examination reports likely represent the functional loss experienced by the Veteran during flare-ups, i.e., after physical activity. Therefore, higher ratings are not warranted based upon limitation of motion under Diagnostic Code 5260 based on limitation of flexion of either knee; and an initial compensable rating is not warranted based upon limitation of motion under Diagnostic Code 5261 based on limitation of extension of the left knee at any time during the period on appeal.

With regards to subluxation, the Board finds that a higher or separate rating is not warranted for the left knee at any time during the period on appeal. In this regard, the Veteran has not been shown to have subluxation at any time. Rather, the VA examination reports consistently show the Veteran did not have a history of subluxation. Additionally, the Veteran reported having symptoms of instability throughout the period on appeal, which is discussed below. Additionally, physical objective examination of the Veteran did not reveal subluxation of the left knee. Therefore, a higher or separate rating based on subluxation for the left knee is not warranted. 

Next, the Board has also analyzed the currently assigned separate 10 percent ratings under Diagnostic Code 5260, and the noncompensable ratings under Diagnostic Code 5261, and whether the Veteran could be assigned 10 percent ratings under Diagnostic Code 5261 for pain beginning October 20, 2014. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board finds that assigning such 10 percent ratings for pain under Diagnostic Code 5261 would violate the rule against pyramiding. In this regard, Diagnostic Codes 5260 and 5261 contemplate pain, limitation of motion, weakness, fatigability, and the like. The evaluation of the same disability or the same manifestations under various diagnoses is prohibited. 38 C.F.R. § 4.14; Lyles v. Shulkin, supra. Moreover, the Board notes that that every symptom contemplated by Diagnostic Code 5260 (limitation of flexion) is not distinct nor separate, and the same symptoms are also contemplated in the criteria for a rating under Diagnostic Code 5261, which contemplates limitation of extension. Therefore, a higher 10 percent rating based on pain based on limitation of extension is not permissible in this instance, and amounts to impermissible pyramiding beginning October 20, 2014. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); VAOPGCPREC 9-2004. 

The Board also notes that the preponderance of the evidence does not reflect that the Veteran's left knee symptoms were manifested by ankylosis, recurrent subluxation, malunion and nonunion of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application in this case. Moreover, as the Veteran has retained motion in his left knee throughout the period on appeal, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable).

Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. The Board initially notes that both of the Veteran's right knee has been awarded service connection and that there is therefore no opposite undamaged joint to test. In this case, the May 2008, August 2009, February 2011, May 2011, and January 2015 VA examinations were conducted prior to Correia and Sharp and provide only partial information as described above. The May 2018, July 2019, June 2020, and October 2020 VA examinations measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. The Board also notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). With regards to flare-ups, the Veteran only endorsed experiencing such flare-ups at his May 2018, July 2019, and October 2020 VA examinations. Sharp v. Shulkin, supra. His reports of additional functional loss associated with the flare-ups as described above. 

To the extent that the Veteran and contends that his left knee disorder is more severe than currently evaluated during any period on appeal, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his knee disabilities are of sufficient severity to warrant higher evaluations under VA's rating schedule because such an opinion requires medical expertise (training in evaluating musculoskeletal impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

The Board has considered whether a staged rating or a further staged rating under Hart, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. A November 2014 VA treatment note indicates that the Veteran was a current VA employee and a January 2015 VA examination report indicates that the Veteran was a current food service employee. The Veteran's current employment status is not clear from the record. Accordingly, further consideration of a TDIU under Rice is not warranted.

Accordingly, the Board finds that the preponderance of the evidence is for the assignment of an initial 10 rating for the appeal period prior to May 5, 2008 for left knee degenerative arthritis; against the assignment of a rating in excess of 10 percent prior to October 20, 2014, in excess of 20 percent from October 20, 2014 to August 11, 2020 for left knee degenerative arthritis, and a rating in excess of 30 percent for the appeal period beginning on October 1, 2021 for a left total knee replacement; for the assignment of a separate 10 percent rating from February 4, 2011 to May 31, 2011 for left knee laxity; and against the assignment of a rating in excess of 20 percent from May 31, 2011 for left knee laxity. To that extent, the appeals are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

REASONS FOR REMAND

Service Connection  Tinnitus 

The Veteran contends that his tinnitus is etiologically related to his active service. Specifically, the Veteran asserts that his tinnitus was as due to hazardous noise exposure during active service, to include large caliber weaponry, cooking in the field and kitchen noises, and small arms weaponry. See Correspondence, July 11, 2014; see also Notice of Disagreement, April 14, 2015. Additionally, he asserts that his tinnitus was caused or aggravated by side-effects of medications prescribed for service-connected hypertension, and a lack of proper hearing protection during his miliary service. See Correspondence, September 9, 2014; see also VA Form 9, February 9, 2017. Moreover, the Veteran asserts that his tinnitus is due to stress, hearing loss, hypertension, and medications. See Correspondence, October 17, 2018. 

The Veteran was afforded a VA examination in January 2015. At that time, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In this regard, the Veteran's service treatment records were within normal limits at enlistment and separation, and there were no significant decrease in hearing thresholds to account for acoustic trauma sustained during active service. Additionally, the examiner noted the Veteran's onset of tinnitus was recent and many years after separation from service. 

The Veteran was afforded a VA examination in February 2015. At that time, the examiner opined that the Veteran's tinnitus was less likely than not proximately due to or the result of the Veteran's service-connected condition. In this regard, the examiner noted tinnitus is a noise or ringing in the ears and is a common problem that affects approximately one in five people. The examiner noted that tinnitus is not a condition itself but rather a symptom of an underlying condition and the exact cause of tinnitus has never been found; the examiner noted several underlying conditions known to cause tinnitus such as, hearing loss, ear damage, circulatory system disorder, ear injury, chronic health conditions, and/or physical injuries. The examiner found that tinnitus was not a common side effect of any of the Veteran's current medications, that his medication regimen were at a suitable dosage, and would therefore be less likely than not a cause of his tinnitus. 

The Board finds the January 2015 and February 2015 VA opinion inadequate to decide the claim. In this regard, the January 2015 examiner failed to adequately provide supporting rationale for the conclusions reached. Rather, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

Additionally, the Board finds the February 2015 VA opinion inadequate to decide the claim because the examiner failed to adequately address the Veteran's lay statements and contentions, namely, that his tinnitus was caused by or aggravated by service-connected hypertension. Notably, the February 2015 VA examiner indicated that chronic health conditions and/or circulatory system disorders could cause tinnitus but did not explain why such did not apply to the facts in this instant case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Given these deficiencies, remand is again required to afford the Veteran an additional VA examination and obtain an adequate etiology opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The matter is REMANDED for the following action:

1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. 

For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. 

For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed tinnitus. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner.

The examiner should respond to the following questions:

(A)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is related to an in-service injury, event, or disease?

(B)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus was caused or aggravated by his service connected hypertension, to include medications taken for the Veteran's hypertension? 

The examiner must reconcile any conflicting medical evidence of record. 

A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

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A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.