Citation Nr: 21075865 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-56 231A DATE: December 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. For the appeal period prior to January 2021 entitlement to a rating in excess of 10 percent for the flexion of the left knee disability is denied. For the appeal period from January 2021 entitlement to a rating in excess of 10 percent for the extension of the left knee disability is denied. For the appeal period from December 2019, a separate rating of 20 percent for the left knee recurrent subluxation or lateral instability is granted. Entitlement to a compensable rating for the left knee scar is denied. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is related to service. 2. For the appeal period prior to January 2021 the Veteran's left knee manifested range of motion from 100 degrees of flexion. 3. For the appeal period from January 2021 the Veteran's left knee manifested range of motion from 0 degrees extension. 4. For the appeal period from December 2019, the Veteran's left knee symptoms included moderate recurrent subluxation or lateral instability. 5. The Veteran's left knee scar measures less than 929 sq. cm. and is not unstable, painful, or disabling in any other manner. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the appeal period prior to January 2021 the criteria for a rating in excess of 10 percent for the flexion of the left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5260, 5261. 3. For the appeal period from January 2021 the criteria for a rating in excess of 10 percent for the extension of the left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5003, 5260, 5261. 4. For the appeal period from December 2019, the criteria for a separate rating of 20 percent, but no greater, for moderate left knee recurrent subluxation or lateral instability, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a compensable disability rating for the left knee scar are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in April 2020. The claim was remanded for the RO to afford the Veteran with VA examinations. The Veteran attended VA examinations in January 2021. Thus, the Board finds that the RO substantially complied with the April 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes a February 2021 rating decision granted a separate rating for left knee limitation of extension at 10 percent effective January 6, 2021 under DC 5003-5261. Notably, the January 2021 VA examination, as discussed below, noted a diagnosis of degenerative arthritis, however the RO chose to continue the left knee disability under DC's associated with range of motion. Also, a noncompensable left knee scar was awarded effective January 6, 2021 under DC 7802. Although the RO never issued a supplemental statement of the case (SSOC) regarding the separate ratings for left knee extension and scar, the Board considers these claims part and parcel of the initial notice of disagreement submitted in February 2016, as the Veteran argued he was entitled to a higher rating due to chronic pain. As such, there is no prejudice as the January 2021 rating decision substitutes as readjudication. 1. Entitlement to service connection for obstructive sleep apnea The Veteran claims he suffers from OSA. Specifically, during the November 2019 Board hearing he alleges the troops in his company complained of his snoring while in service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted as directly related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence the service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for OSA. A June 2014 sleep study diagnosed the Veteran with OSA. He was scheduled to receive a CPAP machine for treatment. The Veteran submitted a January 2020 statement from H.T., his ex-wife. She indicated she lived with the Veteran for 8 years and was concerned with his abnormal breathing while sleeping. She took him to a doctor who indicated he was in excellent condition. She witnessed the Veteran stop breathing while sleeping on several occasions. A January 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with obstructive sleep apnea. The examiner opined the OSA was not related to service. It was reasoned: The veteran was active-duty service from 1975 to 1991. During his time active- duty, there are no complaints regarding sleep apnea nor symptoms. The symptoms of onset begin sometime near 2014 when the Veteran's PCP noticed a change in his voice and began to inquire about his sleeping pattern. The etiology for Obstructive sleep apnea is physical in nature and caused by factors such as increased neck girth, large tonsil size, etc. that affect the physical airway during supine (and related) positions during sleep. There is insufficient evidence to indicate today that factors relating to the etiology of OSA occurred as a result of or during active-duty service. A nexus has not been established. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is related to service. In this regard the Board finds the negative January 2021 VA opinion inadequate. In opining the OSA was not directly related to service, the examiner reasoned the "symptoms of onset begin sometime near 2014 when the Veteran's PCP noticed a change in his voice and began to inquire about his sleeping pattern." However, the Veteran provided testimony indicating troops in his company complained of his snoring while in service. Also, his ex-wife provided a statement indicating the Veteran had abnormal breathing while sleeping for 8 years. The Veteran confirmed the 8 years occurred during service. The VA examination report indicated that review of the claims folder was conducted, but this lay evidence was ignored, specifically failing to take the Veteran's and his ex-wife's competent statements into consideration. There is no evidence to contradict these statements or indicate they are otherwise non-credible. In view of the extended time this claim has been on appeal and considering VA's failure to provide adequate medical development, rather than remand for a VA addendum opinion on direct service connection for OSA, the Board will resolve doubt in the Veteran's favor and grant service connection as directly related to his in-service snoring. Accordingly, the Board finds that the criteria for service connection for OSA have been approximated and the claim will be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. For the appeal period prior to January 2021 entitlement to a rating in excess of 10 percent for the left knee disability 3. For the appeal period from January 2021 entitlement to a rating in excess of 10 percent for the left knee disability 4. For the appeal period from December 2019, entitlement to a separate rating for the left knee recurrent subluxation or lateral instability The Veteran contends his left knee disability warrants a disability rating in excess of 10 percent. 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. 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. Staged ratings are appropriate when the factual findings show distinct time periods where the disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In a September 1991 rating decision service connection was granted for the left knee disability with an evaluation of 10 percent effective March 8, 1991, under DC 5259, as residuals of a 1986 meniscectomy. However, in August 2011 a rating decision code sheet reflected a change in the DC from 5259 to 5260. For the entire appeal period, the Veteran has been in receipt of a 10 percent disability rating for his left knee disability, based on painful motion of the knee, under Diagnostic Code (DC) 5260. Under DC 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent); flexion of the leg limited to 45 degrees is rated 10 percent; flexion of the leg limited to 30 degrees is rated 20 percent; and flexion of the leg limited to 15 degrees is rated 30 percent. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent); extension of the leg limited to 10 degrees is rated 10 percent; extension of the leg limited to 15 degrees is rated 20 percent; extension of the leg limited to 20 degrees is rated 30 percent; extension of the leg limited to 30 degrees is rated 40 percent; and extension of the leg limited to 45 degrees is rated 50 percent. 38 C.F.R. § 4.71a; see VAOPGCPREC 9-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. 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."). Turning to the evidence, a January 2016 VA examination report for the left knee indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran was diagnosed with residuals left knee s/p meniscectomy. He reported the left knee pain has progressively worsened and is now chronic in nature. He did not report any flareups. The left knee had abnormal range of motion (ROM). Flexion was limited to 100 degrees and extension was limited to 2 degrees with pain. There was pain with weight bearing and evidence of localized tenderness or pain on palpation, however, there was no evidence of crepitus for the left knee. Upon repetitive use testing there was no additional loss in range of motion. As it relates to repeated use over time the examiner found it would be speculative to report loss in range of motion as the Veteran was not having a flare-up. The examiner noted contributing factors to the Veteran's disability included less movement than normal due to ankylosis, adhesions, and disturbance of locomotion. No reduction in muscle strength or muscle atrophy was listed for the left knee. There was no ankylosis or joint instability for the left knee. There was a left knee meniscal tear, due to in-service surgery, however there was no evidence of frequent episodes of "locking," pain and effusion into the joint. In 1986 he had a partial meniscectomy. He does not use assistive devices and there was no evidence of degenerative or traumatic arthritis. In December 2019 private treatment records, the Veteran complained of increased weakness in his lower extremities. The left knee flexion and extension was noted as 3+/5. An assessment indicated the Veteran had increased weakness in his lower extremities coupled with neuropathy impacting his stability in standing. In January 2020, a private treatment x-ray revealed moderate severe osteoarthritis for the left knee. He reported using a cane most of the time and experiencing knee pain at night. Other reported symptoms consisted of numbing/tingling, swelling, and locking. An assessment revealed lower extremity weakness and stiffness. In October 2020 VA treatment records, the Veteran reported he has been able to progress with his gait activities with decreased use of the handrail in the hallway to provide stabilization. A January 2021 VA examination report for the left knee indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran was diagnosed with post-operative residuals of the left knee and bilateral degenerative arthritis. He reported constant pain with sore stiffness when he attempts to flex his knee. He also reported weakness. He has flare-ups for both knees. However, for the left knee he indicated his left leg is progressively getting worse as he loses stability and is falling more. The falls have resulted in a broken foot and he is attending therapy to improve his stability. For frequency the examiner indicated the Veteran is in weekly physical therapy. For severity it was noted the condition is progressively worse. For duration weekly physical therapy was noted. He reported left knee functional loss as it is difficult to get back up after he falls. He is unable to get out of a chair without assistance and he is unable to help his wife with house chores such as laundry, due to the functional loss in his left knee. The left knee had abnormal range of motion (ROM). Flexion was limited to 0 to 75 degrees and extension was 75 to 0 degrees with pain. There was pain with weight bearing and evidence of crepitus for the left knee. There was no evidence of localized tenderness or pain on palpation. Upon observed repetitive use testing there was additional loss in range of motion as the flexion was 5 to 65 degrees and the extension was 65 to 5 degrees. The examiner noted factors that contributed to functional loss included pain, fatigue, weakness, lack of endurance, and incoordination. For repetitive use overtime and flare-ups, the examiner found pain, weakness, fatigability or incoordination significantly limit functional ability. For repetitive use overtime the estimated flexion was 10 to 60 degrees and the extension was 60 to 10 degrees. For flare-ups the estimated flexion was 5 to 65 degrees and the extension was 65 to 5 degrees. There were no additional contributing factors for the left knee. Muscle strength for the left knee exhibited active movement against some resistance, however there was no muscle atrophy of ankylosis. No joint instability was found. There was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The left side did have a meniscal tear and history of meniscotomy. A left knee scar was noted, and the Veteran regularly uses a cane. Severe osteoarthritis was found for both knees. In January 2021, VA treatment records indicated instability in standing continues to be noted with standard cane necessary with gait activities to prevent falls. The Veteran reported he is motivated to participate with physical therapy as he notices an improvement with his daily activities with his strength when he is able to come to the clinic for physical therapy. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds for the appeal period prior to January 2021 a rating in excess of 10 percent is not warranted for the Veteran's left knee disability. Likewise, for the appeal period from January 2021 a rating in excess of 10 percent for the left knee flexion and extension is not warranted. However, for the appeal period from December 2019, a separate rating of 20 percent, but no greater, for recurrent subluxation or lateral, under DC 5257, for the left knee is warranted. As it relates to the left knee disability, for the appeal period prior to January 2021 higher ratings are available for evidence demonstrating leg flexion limited to 30 degrees or less or extension of the leg limited to 10 degrees or more. The evidence weighs against such manifestations. Specifically, the January 2016 VA examination reflects flexion limited to 100 degrees and extension limited to 2 degrees with pain. Upon repetitive use testing there was no additional loss in range of motion. Also, for the appeal period prior to January 2021 the Board finds that a separate or higher rating is not warranted under other DCs related to the knee. DC 5256 relates to ankylosis of the knee; DC 5257 relates to recurrent subluxation or lateral instability; DC 5258 and 5259 relate to the meniscus (the semilunar cartilage); DC 5262 relates to the tibia and fibula impairment; DC 5263 relates to Genu recurvatum. As demonstrated in the January 2016 VA examination, the evidence did not indicate that the Veteran suffers from ankylosis of the knee or recurrent subluxation or lateral instability. There is evidence of a meniscus condition, however there was no evidence of frequent episodes of "locking," pain and effusion into the joint or removal of the semilunar cartilage. Furthermore, the record reflected evidence of the meniscectomy as demonstrated in the January 2016 VA examination report. The Veteran had a meniscectomy in 1986. The evidence reflected the meniscectomy and arthritis prior to the April 2020 Board remand, however, the RO chose to rate the left knee under DC's related to range of motion. If there was evidence of frequent episodes of locking and effusion the rating code should have been adjusted to reflect so. As detailed in the procedural history the left knee condition has been rated based on residuals of the 1986 meniscectomy which in this case appears to be range of motion limitations. The Board acknowledges the January 2020 treatment records indicated reported symptoms consisted of numbing/tingling, swelling, and locking. Again, the record doesn't reflect frequent episodes of locking and effusion. The Board finds that the remaining DCs related to the knee are also inapplicable. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Even considering such factors as pain and functional impairment, such disability more closely approximates that of flexion limited to 100 degrees and extension limited to 2 degrees. Additionally, the January 2016 VA examination noted upon repetitive use testing there was no additional loss in range of motion. Therefore, the Veteran's left knee disability does not warrant a disability rating in excess of 10 percent under DC 5260, or a separate compensable rating under DC 5261. For the appeal period from January 2021 higher ratings are warranted for evidence demonstrating left flexion limited to 30 degrees or less or extension of the leg limited to 15 degrees or more. For this appeal period, the Board notes the Veteran was awarded a 10 percent evaluation for the left knee extension. A rating in excess of 10 percent is not warranted as the evidence does not demonstrate extension limited to 15 degrees or more. Although there was additional loss in range of motion with repetitive use testing, repetitive use overtime and flare-ups, the loss resulted in flexion limited to 65, 60, and 65 degrees respectively. For extension the left knee was limited to 5, 10, and 5 degrees respectively. Therefore, the evidence does not indicate a higher rating is warranted. For the appeal period from January 2021 the Board finds that a separate or higher rating is not warranted under other DCs related to the knee. As demonstrated in the January 2021 VA examination, the evidence did not indicate that the Veteran suffers from ankylosis of the knee, tibia and fibula impairment, or genu recurvatum. There is evidence of a meniscus condition, however there was no evidence of frequent episodes of "locking," pain and effusion into the joint or removal of the semilunar cartilage. The Board finds that the remaining DCs related to the knee are also inapplicable. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant a rating in excess of 10 percent for this appeal period. The Board finds a separate rating for left knee recurrent subluxation or lateral instability is warranted. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as none of the symptomatology for one condition is "duplicative of or overlapping with the symptomatology" of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In VAOPGCPREC 9-98, General Counsel considered a hypothetical situation in which a knee disability was evaluated under DC 5259 that was productive of pain, tenderness, friction, and osteoarthritis established by x-rays. For the purposes of the hypothetical, it was assumed that the knee disability rated under DC 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel interpreted that, where a DC 5259 disability did not involve limitation of motion, a separate rating under DC 5003 in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 may be warranted. See Lichtenfels, 1 Vet. App. at 488. Turning to Diagnostic Code 5257, the Veteran's perception of instability is evidence that must be considered. See English v. Wilkie, 30 Vet. App. 347 (2018) (Diagnostic Code 5257 does not require "objective" medical evidence of lateral instability for a rating to be assigned. When weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Board notes that DC 5257 was amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The amended version of this code may not be applied prior to the effective date of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of these codes to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, DCs 5257, 5262 and 5055 to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome. In this case the Board is awarding a 20 percent rating earlier than the February 7, 2021 effective date. As such applying the prior regulations is more favorable to the Veteran. Under DC 5257, where there is recurrent subluxation, lateral instability, or other impairment of a knee, a 10 percent evaluation may be assigned where the disability is slight, a 20 percent evaluation will be assigned for moderate disability, and a 30 percent evaluation for severe disability. 38 C.F.R. § 4.71a. The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this case the record has reflected instability beginning around December 2019 with improvement in October 2020 as it was noted the Veteran reported he has been able to progress with his gait activities with decreased use of the handrail in the hallway to provide stabilization. In January 2021 the Veteran reported instability and VA treatment records indicated instability in standing continues to be noted with standard cane necessary with gait activities to prevent falls. However, the Veteran reported he is motivated to participate with physical therapy as he notices an improvement with his daily activities with his strength when he is able to come to the clinic for physical therapy. Taking the Veteran's statements and medical evidence into account the Board finds a separate rating under DC 5257 for moderate instability is warranted as the evidence has consistently demonstrated a degree of instability, which has progressed. The Board recognized the Veteran's reports of improvement. However, he has consistently had stability issues and in as recent as January 2021 he indicated his left leg is progressively getting worse as he loses stability and is falling more. Based on the evidence as a whole the Board finds from December 2019 the Veteran has suffered from at least moderate instability under DC 5257. Accordingly, for the appeal period prior to January 2021 a rating in excess of 10 percent for flexion is not warranted for the Veteran's left knee disability. Likewise, for the appeal period from January 2021 a rating in excess of 10 percent for the left knee flexion and extension is not warranted. However, for the appeal period from December 2019, a separate rating of 20 percent, but no greater, for recurrent subluxation or lateral, under the pre-amended version of DC 5257, for the left knee is warranted. 5. Entitlement to a compensable rating for the left knee scar As noted above, a February 2021 rating decision granted a noncompensable left knee scar effective January 6, 2021 under DC 7802. Under this criterion, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Turning to the evidence, A January 2021 VA examination report for the left knee indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The report indicated the Veteran had a scar, measuring 2 centimeters in length and 0.3 centimeters in width, located on the left lateral upper above patella aspect of knee diagonal. The Veteran did not report pain associated with the scar nor did the report indicate the scar was painful or unstable. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a compensable rating is not warranted. The evidence weighs against a compensable rating as the Veteran's scar does not measure 929 sq. cm. Furthermore, the Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scar is not of the head, face, or neck. Therefore, DC 7800 is inapplicable. Again, the scar does not measure at least 929 sq. cm., which renders DC 7801 inapplicable. There is no evidence lay or medical indicating the scar is unstable or painful. Therefore, DC 7804 is inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under Diagnostic Code 7805. Accordingly, a compensable rating for the left knee scar is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.