Citation Nr: 21008954 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-30 383 DATE: February 18, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. Service connection for a right knee condition is denied. Service connection for bilateral hip arthritis is denied. A rating in excess of 10 percent for status post left knee surgery for ruptured patellar tendon with degenerative arthritis (left knee disability) is denied. FINDINGS OF FACT 1. In a September 2004 rating decision, a VA regional office (RO) denied service connection for a right knee disability. Although notified of the denial in a September 2004 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence associated with the file since September 2004, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disability. 3. There is no probative medical evidence that indicates the Veteran’s current right knee symptomatology is secondary to his service-connected left knee disability. 4. There is no probative medical evidence that indicates the Veteran’s current bilateral hip arthritis diagnoses were diagnosed within the presumptive period after discharge or are secondary to his service-connected left knee disability. 5. Since October 4, 2012, the Veteran’s left knee disability demonstrated with painful motion due to a healed injury, tenderness, and crepitus. CONCLUSIONS OF LAW 1. The September 2004 rating decision denying service connection for a right knee disability is final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2019). 2. As pertinent evidence received since the September 2004 denial is new and material, the criteria for reopening the claim for service connection for a right knee disability are met. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2019). 3. The criteria to establish service connection for right knee disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 4. The criteria to establish service connection for a bilateral hip disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 5. Since October 4, 2012, the criteria for a disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1997 to November 2003. The case was remanded in November 2019 for evidentiary development and for new medical examinations and opinions. Multiple attempts were made to schedule the Veteran for VA examinations to evaluate his claims of secondary service connection for his right knee and bilateral hips, and to evaluate the current severity of his service-connected left knee disability. The Veteran failed to respond to these attempts to schedule these VA examinations. While VA has a duty to assist the Veteran in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159 (c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655 (b). Since the secondary service connection claim for his bilateral hips is an original claim, the claim shall be rated based on the evidence of record. Since the Veteran’s secondary service connection claim for his right knee was previously denied, and his left knee claim is a claim for an increase that is not based on his original claim, these two claims shall be denied. VA has satisfied its duty to notify and assist and the Board may proceed with appellate review. Petition to reopen previously denied claim Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability The claim of service connection for a right knee disability was previously denied in an un-appealed September 2004 rating decision. Because new and material evidence has since been submitted, this claim will be reopened. In a September 2004 rating decision, the regional office (RO) denied the Veteran’s claim of service connection for right knee disability because the Veteran did not demonstrate a right knee condition at the VA medical examination. Although notified of this decision by a September 2004 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In October 2012, the Veteran petitioned to reopen his right knee disability service connection claim. Evidence submitted since the final September 2004 rating decision consists of VA treatment records, additional service treatment records, and a statement from the Veteran. The record includes medical findings of a right knee condition. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the September 2004 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Thus, the claim of entitlement to service connection is reopened and will be discussed on the merits below. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right knee disability The Veteran contends he has a current right knee disability that stems from over-compensating for his service-connected left knee disability. This is a theory of entitlement called secondary service connection. Since the Veteran does not allege direct service connection, nor does the record raise this theory of entitlement, the Board will restrict its analysis to secondary service connection only. At the August 2004 VA medical examination, the Veteran reported that after his in-service left knee surgery, he over-compensated by putting pressure on his right knee to the point where he noticed pain. The Veteran denied current pain, a history of swelling, and the need for pain relief medication, but endorsed occasional stiffness in cold weather. The examination revealed full range of motion, with no functional loss due to pain and no arthritis on x-rays. The examiner did not diagnose the Veteran with a right knee condition. May 2012 imaging indicated degenerative changes to the Veteran’s right knee. The examiner did not diagnose the Veteran with right knee arthritis. At the July 2013 VA medical examination, the Veteran did not report right knee pain, and the examiner did not diagnose the Veteran with a right knee disability. The examiner noted the Veteran’s right knee demonstrated normal range of motion, to include after repetitive use testing, normal stability, and no other pertinent physical findings. The examiner did not provide an opinion on the Veteran’s right knee. At a July 2013 physical therapy consultation conducted after the July 2013 VA medical examination, the Veteran reported bilateral knee pain, left more than right, that flared after exercise and activity. On examination the Veteran’s right knee demonstrated moderate to severe crepitus, with no pain on palpation to his lateral patella. The examiner noted the Veteran demonstrated over-pronation of both feet during squat and gait analyses, that over-pronation was “known to cause extra stress on the knee,” and that this over-pronation could be the cause for the Veteran’s knee pain. The examiner advised orthotics and exercises to stabilize both knees. April 2016 imaging indicated “normal” findings. The examiner did not indicate a clinical diagnosis of arthritis for the Veteran’s right knee. August 2017 VA treatment records indicate the Veteran reported right knee pain after a June or July 2017 bike injury. Subsequent imaging revealed minimal degenerative patellar spurring and moderate joint effusion. At the July 2019 Board hearing, the Veteran testified that he had pain in his right knee because he favored his left knee by trying to keep weight off his left knee after his surgery. He also reported a physician noticed a “click” sound in his right knee. As noted above, the Veteran did not respond to repeated attempts to attend a VA medical examination to further evaluate his claim. The claim for service connection is denied. There is no probative medical evidence that indicates the Veteran’s current right knee symptomatology is secondary to his service-connected left knee disability. The Veteran has continuously asserted throughout the appeal that his current right knee condition is a result of his service-connected left knee disability. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current right knee condition. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Knee conditions require specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current right knee medical findings and its relationship to his left knee disability. Since the Veteran’s right knee condition is not secondary to his service-connected left knee disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for a bilateral hip disability (claimed as degenerative disease) The Veteran contends his current bilateral hip disability stems from over-compensating for his service-connected left knee disability. Since the Veteran does not allege direct service connection, nor does the record raise this theory of entitlement, the Board will restrict its analysis to secondary service connection only. May 2012 imaging of the Veteran’s bilateral hips indicated mild joint space narrowing consistent with acute arthritis. At the July 2013 VA medical examination, the Veteran reported bilateral hip stiffness. The examiner noted x-rays indicated mild bilateral degenerative joint disease (DJD) that was “not rare” given the Veteran’s body mass index (BMI) and that medical research indicated an injury in one extremity “rarely” resulted in a “major problem” in the opposite uninjured extremity. The examiner opined that given the extensive medical research cited, the Veteran’s mild bilateral hip DJD was not caused, related or aggravated beyond the natural progression of the disease by the Veteran’s service-connected left knee disability. April 2016 imaging indicated symmetric, mild DJD in the Veteran’s bilateral hips. In May 2016 an examiner advised the Veteran to perform low impact exercises to resolve pain. In October 2018 the Veteran reported intermittent right hip pain for two years with a recent onset of left hip pain for the past two months. The examination revealed normal gait, “excellent” flexion, normal range of motion, no tenderness, with x-ray imaging revealing minimal arthrosis in both hips. The examiner diagnosed the Veteran with bilateral hip pain. At the July 2019 Board hearing, the Veteran reported the onset of bilateral hip pain after his left knee surgery because he favored his left knee. As noted above, the Veteran did not respond to repeated attempts to attend a VA medical examination to further evaluate his claim. The preponderance of the evidence is against finding service connection for a bilateral hip disability. There is no probative medical evidence that indicates the Veteran’s current bilateral hip arthritis diagnoses were diagnosed within the presumptive period after discharge or are secondary to his service-connected left knee disability. The Veteran has continuously asserted throughout the appeal that his current bilateral hip arthritis disability is a result of his service-connected left knee disability. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current bilateral hip arthritis diagnoses and its relationship to his service-connected left knee disability. Since the Veteran’s bilateral hip disability was not diagnosed within the presumptive period after discharge nor is secondary to his service-connected left knee disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Changes to the rating schedule for musculoskeletal disabilities became effective February 7, 2021. The amended rating criteria, if favorable to the Veteran’s claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Of significance to the Veteran, changes to the rating schedule now specifically describe patellar instability in DC 5257. The new criteria are noted below. 4. Entitlement to a rating in excess of 10 percent since October 4, 2012, for status post left knee surgery for ruptured patellar tendon with degenerative arthritis (left knee disability) Prior to the filing of the current claim, the Veteran’s left knee post status surgery for ruptured patellar tendon with degenerative arthritis disability has been evaluated as 10 percent disabling since November 6, 2003, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5010-5260. DC 5010 directs that traumatic arthritis substantiated by x-ray findings should be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 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, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating, and x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent rating. Id. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. at Note 1. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. DC 5257, as amended, provides ratings for patellar instability. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Of note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note 1. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. at Note 2. The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. May 2012 imaging revealed mild spurring and degenerative changes in both knees, and calcification in the inferior margin of his left patella. At the July 2013 VA medical examination, the examiner diagnosed the Veteran with left knee patellar tendon surgical repair. The Veteran reported aching pain in his left knee but denied that flareups caused functional impairment. Range of motion (ROM) testing indicated left knee flexion to 140 degrees, with no objective evidence of pain, and no limitation of extension. Repetitive use testing did not result in functional loss or additional limitation of ROM. The examiner noted left knee tenderness or pain on palpation, with normal muscle strength and normal stability, to include in the anterior, posterior, medial, and lateral aspects. The examiner also noted the Veteran’s left knee did not demonstrate a history of recurrent patellar subluxation or dislocation, nor a history of “shin splints,” nor any meniscal conditions. The examiner also noted the Veteran did not demonstrate any residuals from his surgery, and that his left knee disability did not impact his ability to work. With regards to an opinion on the extent repetitive use or flareups may cause significant functional limitations, the examiner could not determine a more definitive description of functional loss during flareups without resorting to mere speculation. The examiner noted the Veteran’s left knee did not demonstrate objective findings of arthritis such as DJD on imaging. At a July 2013 physical therapy consultation conducted after the July 2013 VA medical examination, the Veteran reported bilateral knee pain, left more than right, that flared after exercise and activity. On examination the Veteran’s left knee demonstrated slight tenderness or pain on palpation at the lateral patella, with moderate to severe crepitus, and marked lateral tilt of the left patella. The examiner noted the Veteran’s left knee patella demonstrated normal mobility. The examiner assessed the Veteran with intermittent mechanical pain, reduced quadricep strength, and prominent tibial tuberosities. As noted above, the examiner noted the Veteran demonstrated over-pronation of both feet during squat and gait analyses, that over-pronation was “known to cause extra stress on the knee,” and that this over-pronation could be the cause for the Veteran’s knee pain. The examiner advised orthotics and exercises to stabilize both knees. April 2016 imaging revealed mild DJD described as degenerative changes of patellofemoral and medial compartments. In a May 2016 physical therapy consultation, the Veteran reported minimal left knee pain, with occasional sharp pain. The Veteran reported no difficulty while biking, but that he was “struggling” with increased left knee pain when using the treadmill. The evaluation revealed ROM flexion to at least 135 degrees bilaterally. The examiner diagnosed the Veteran with left knee pain and advised the Veteran to perform low impact exercises to minimize knee pain. September 2017 VA treatment records indicate the Veteran reported left knee joint pain. The evaluation revealed no effusion or redness, with no assessment or diagnosis. In July 2018 the Veteran reported clicking and instability in his left knee. At the July 2019 Board hearing, the Veteran reported a physician heard a “click” in his left knee but that he did not problems with his left knee. As noted above, the Veteran did not respond to repeated attempts to attend a VA medical examination to further evaluate his claim. Since October 4, 2012, the Veteran’s left knee disability demonstrated with painful motion due to a healed injury, tenderness, and crepitus, and warrants a 10 percent evaluation. A higher evaluation is not warranted because the Veteran’s left knee disability did not demonstrate with moderate recurrent subluxation or instability; flexion limited to 30 degrees; extension limited to 20 degrees; or moderate malunion of the tibia and/or fibula. The Veteran’s disorder does not warrant a higher rating under the new criteria for DC 5257. The Veteran’s disability did not manifest with evidence of recurrent instability after surgical repair that requires a prescription from a medical provider for a brace, cane, or walker. Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.