Citation Nr: 21010280 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-30 071 DATE: February 24, 2021 ORDER Service connection for an acquired psychiatric disorder, not including posttraumatic stress disorder (PTSD), is denied. Service connection for PTSD is denied. Service connection for a sleep disorder, diagnosed as insomnia, is denied. A higher initial rating in excess of 10 percent for the right knee strain disability from January 22, 2010 is denied. A higher initial rating of 20 percent for the right knee instability disability from August 26, 2019 is granted. FINDINGS OF FACT 1. A psychiatric disorder was not noted on the March 1984 service entrance examination. 2. A psychiatric disorder did not clearly and unmistakably pre-exist service. 3. The Veteran did not experience an in-service psychiatric injury, disease, or event. 4. The Veteran did not experience an in-service stressor in accordance with 38 C.F.R. § 3.304(f). 5. The Veteran has a current disability of insomnia. 6. The Veteran did not experience any in-service injury, disease, or event associated with the insomnia. 7. From January 22, 2010 the right knee strain disability manifested in limitation of flexion between 75 and 90 degrees with functional loss due to pain and weakness causing additional disability; without limitation of extension limited to 10 degrees or more, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. 8. From August 26, 2019, the right knee instability disability manifested in persistent instability and was treated with a prescribed assistive device. CONCLUSIONS OF LAW 1. A psychiatric disorder did not clearly and unmistakably pre-exist service, including during any alleged psychiatric counseling prior to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 2. The criteria for service connection for acquired psychiatric disorders (other than PTSD) have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 4. The criteria for service connection for insomnia have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for a higher initial rating in excess of 10 percent for the right knee sprain disability from January 22, 2010 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for a higher initial rating of 20 percent for the right knee instability disability from August 26, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to September 1989. This matter is on appeal from a June 2010 rating decision issued by the Regional Office (RO), which granted service connection for a right knee strain rated at 10 percent from January 22, 2010 and denied service connection for a mental disorder and a sleeping disorder. The Veteran filed a notice of disagreement in January 2011 and a statement of the case (SOC) was issued in September 2011. The Veteran filed a substantive appeal in November 2011. A supplemental statement of the case (SSOC) was issued in March 2013. These matters were before the Board in September 2014. The Board remanded all three issues in order to obtain up-to-date VA medical treatment records. VA medical treatment records were submitted to the claims file in December 2014. A SSOC was issued in March 2015, denying all three issues on appeal. These matters were before the Board again in August 2015. The Board remanded all three issues in order to obtain additional VA treatment records and conduct VA examinations. VA examinations were conducted in March 2017, April 2017 and February 2018. A SSOC denied all three issues in February 2018. These matters were before the Board again in March 2019. The Board found that the VA examinations conducted pursuant to the August 2015 Board remand were inadequate in assessing the psychiatric and sleep disorders. The Board also acknowledged that the Veteran reported worsening symptoms in the right knee. The Board remanded all three issues again in order to obtain adequate VA examinations for the psychiatric and sleep disorders and an updated VA examination to assess the claimed worsening symptoms in the right knee. VA examinations were conducted in January 2020, July 2020, and September 2020. A September 2020 rating decision granted service connection and separate disability rating for right knee instability, rated at 10 percent (under DC 5257) from August 26, 2019 and 0 percent from January 7, 2020. A SSOC was issued in October 2020, denying a higher initial rating for the right knee instability, denying service connection for a sleep disorder, and denying service connection for an acquired psychiatric disorder, including PTSD. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38C.F.R. §3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125 (a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304 (f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. Under 38 C.F.R. § 3.304(f), PTSD stressors are listed as follows: (1) a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, (2) if the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, (3) if the stressor is related to the veteran’s fear of hostile military or terrorist activity, (4) if the veteran was a prisoner-of-war under the provisions of§ 3.1(y)of this part and the claimed stressor is related to that prisoner-of-war experience, or (5) if the PTSD is based on in-service personal assault. In the instant case, the Veteran was not diagnosed with PTSD during service, did not engage in combat, was not a prisoner of war, did not claim that an in-service personal assault occurred, and none of the reported events relate to a fear of hostile military or terrorist activity. In this case, the Board notes that the Veteran was not diagnosed with PTSD in service, did not engage in combat, was not a prisoner of war, and the stressors were not based on an in-service personal assault. As such, the Board will analyze the claimed stressors under 38 C.F.R. § 3.304(f)(3), fear of hostile military or terrorist activity. “Fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho physiological state of fear, helplessness, or horror. 38C.F.R. §3.304(f). Under 38 C.F.R. § 3.304(f), a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) a stressor claimed by a veteran is related to his or her fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service; and (3) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). According to the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), a PTSD stressor is established when the veteran was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following ways: (1) direct exposure, (2) witnessing the trauma, (3) learning that a relative or close friend was exposed to trauma, or (4) indirect exposure to aversive details of the trauma, usually in the course of his professional duties. 1. Service Connection for an Acquired Psychiatric Disorder (Not Including PTSD) 2. Service Connection for PTSD The Veteran has over time progressively proffered a few explanations of what he considers in-service psychological events and PTSD stressors. In addition, the Veteran contends that he participated in psychological counseling prior to entering service. The Board finds that the Veteran did not have a pre-existing psychiatric disorder prior to entering service. Upon review of service treatment records, a psychiatric disorder was not “noted” on the March 1984 service entrance examination report. While the Veteran claims that he had some “counseling” when he was young, prior to service, he did not report any specific diagnosis. There are no treatment records to indicate a diagnosis of a psychiatric disorder prior to service. The Board finds that, as the Veteran did not explicitly assert that he had a pre-existing psychiatric disorder, and a psychiatric disorder did not clearly and unmistakably pre-exist service; therefore, this case is one of direct service incurrence, rather than aggravation of a preexisting disability. The Veteran contends that he experienced two in-service psychological events or PTSD stressors that caused the reported PTSD. The Veteran claims that he found a scorpion in his bed that caused him to have nightmares. The Veteran also claims that he witnessed a fellow servicemember commit suicide after being bullied. After a review of the evidence of record, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran did not experience an in-service psychological injury, disease, or event, including no in-service PTSD stressor or event in accordance with 38C.F.R. §3.304(f). The Board finds that the Veteran is not credible in reporting the scorpion event or stressor. The Veteran has not provided any specific details about the alleged incident, including when it happened and where it happened. Upon review of the service treatment records, there are no complaints of or treatment for any scorpion injuries in service or any complaints of or treatment for sleep impairment related to the claimed nightmares. At service separation, the Veteran did not report any psychiatric symptoms and the military medical examiner did not find any psychiatric abnormalities. See June 1989 Report of Medical History (The Veteran affirmatively reported that he did not experience frequent trouble sleeping, depression, excessive worry, or nervous trouble); June 1989 Separation Examination (The military medical examiner found that the Veteran had a normal psychiatric disposition). According to the record, the Veteran did not report the scorpion incident until September 2019, decades after service separation in September 1989 and several years after filing a claim for service connection in January 2010. The Veteran did not report the scorpion incident during any visits to the VA medical centers or during the April 2017 VA psychiatric examination. The Veteran filed an application for compensation or pension in March 1993, which was adjudicated in September 1998, but did not raise a claim for service connection for a psychiatric disorder until 2010. The Board finds that the Veteran is not credible in reporting the suicide event or stressor. The Veteran has not provided any specific evidence about the claim, including when it happened, where it happened, and has not identified the servicemember who reportedly committed suicide. Upon review of the service treatment records, there are no complaints of or treatment for any psychological symptoms. Again, at service separation, the Veteran did not report any psychiatric symptoms and the military medical examiner did not find any psychiatric abnormalities. See June 1989 Report of Medical History; June 1989 Separation Examination. According to the record, the Veteran did not report the suicide incident until September 2019, decades after service separation in September 1989 and several years after filing a claim for service connection in January 2010. The Veteran did not report the suicide incident during any visits to the VA medical centers or during the April 2017 VA psychiatric examination. The Veteran filed a claim for service connection, which was adjudicated in September 1998, but the Veteran did not raise a claim service connection for a psychiatric disorder until 2010. The Board finds that the Veteran’s vague, inconsistent statements made decades after service separation, in the context of other, more contemporaneous histories by the Veteran that do not mention these alleged events or psychiatric symptoms during or soon after service, render him not credible in reporting either claimed event or stressor. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim; Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In this case, there is sufficient evidence of record already to decide the claims because the weight of the lay and medical evidence of record, which is sufficient to decide the element of whether in-service events occurred, is determinative of the outcome of this case. Further evidence, including medical evidence of current diagnosis and nexus opinions, is no longer probative because there is, as a matter of fact, no in-service injury, disease, or event to which current psychiatric disability could be related. Consequently, the September 2019 private Disability Benefits Questionnaire (DBQ) is of no probative value because it inaccurately assumes the occurrence of in-service events, contrary to the weight of the evidence and the Board’s findings of fact in this case. For the reasons given, the weight of the evidence is against finding that the Veteran experienced an in-service psychiatric event or PTSD stressor and the Board has found that the Veteran is not credible in reporting the claimed in-service events. As the Board has found as fact that there is no in-service illness, injury, or event, the claims for service connection for an acquired psychiatric disorder and service connection for PTSD must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for Insomnia The Veteran contends that the insomnia began in service and could be related to the claimed (but non-service-connected) acquired psychiatric disorder and PTSD. The Board notes that the secondary service connection for insomnia under 38 C.F.R. § 3.310 based on the acquired psychiatric disorder and the PTSD is not applicable because the acquired psychiatric disorder and the PTSD are not service connected. As such, the only service connection theory before the Board is whether the insomnia is directly related to service. See 38 C.F.R. § 3.303(a),(d). After a review of the evidence of record, the Board finds that the Veteran has a current disability of insomnia. See January 2020 VA Examination. The weight of the evidence is against finding that the Veteran experienced an in-service injury, disease, or event associated with the insomnia. Upon review of the service treatment records, there are no complaints of or treatment for insomnia. At service separation, the Veteran did not report any insomnia symptoms and the military medical examiner did not find any psychiatric or neurologic abnormalities. See June 1989 Report of Medical History (The Veteran affirmatively reported that he did not experience frequent trouble sleeping); June 1989 Separation Examination (The military medical examiner found that the Veteran had a normal psychiatric and neurologic disposition). The first report of insomnia of record is in the instant claim for service connection filed in the January 2010 statement in support of claim, approximately 20 years after service separation. There are no VA or private treatment records of record documenting insomnia symptoms until May 2012. Moreover, the Veteran filed an application for compensation or pension in March 1993, which was adjudicated in September 1998, but the Veteran did not raise a claim service connection for insomnia until 2010. The Veteran’s recent assertion about the insomnia being related to service is not credible as it is vague, inconsistent with more contemporaneous evidence and history of symptoms reported by the Veteran, and does not account for a large gap in time when the record is silent about the insomnia, including when opportunities to report such symptoms presented themselves at service separation and during treatment. Based on the foregoing, the preponderance of the evidence is against finding that the Veteran experienced an in-service injury, disease, or event associated with the insomnia; therefore, the claim must be denied. Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. §§ 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. §§ 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 4.3. 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 rating 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 disabilities. 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double “compensation” for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. §§ 4.20. When evaluating disabilities of the musculoskeletal system, 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. §§ 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The 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. 38 C.F.R. § 4.59. The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. §§ 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. §§ 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. §§ 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. §§ 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates “other impairment” of the knee including (1) recurrent subluxation or instability and (2) patellar instability. For recurrent subluxation or instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation warrants a 30 percent rating. A 20 percent rating is warranted if the veteran exhibits one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted if the veteran exhibits sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted if the veteran has 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. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation 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 DC 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 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. §§ 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107. In VAOPGCPREC 9-98, VA’s General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered. 4. Initial Rating for a Right Knee Sprain from January 22, 2010 The Veteran is in receipt of a 10 percent disability rating for the right knee sprain rated under DC 5260 from January 22, 2010 under DCs 5260 and DC 5003. As 10 percent is the highest rating for one major joint under DC 5003 that manifests in noncompensable limitation of motion, even if arthritis is present, a higher rating is not possible under DC 5003; therefore, the Board will analyze whether a higher rating is warranted under codes that rate based on limitation of motion or other function. After a review of the evidence, both lay and medical, the Board finds that, from January 22, 2010, the right knee strain disability manifested in limitation of flexion between 75 and 90 degrees with functional loss due to pain and weakness causing additional disability warranting a 10 percent rating under DC 5260; without evidence of limitation of extension limited to 10 degrees or more, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. The Board also finds that from January 9, 2020 the right knee strain disability did not result in limitation of flexion at 45 degrees or less, limitation of extension at 10 degrees or less, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum to warrant a higher rating or a rating under an alternative DC. From January 22, 2010, right knee flexion was measured between 75 and 140 degrees and the right knee extension was measured at 0 degrees. See May 2010 VA Examination (measuring flexion at 140 degrees and extension at 0 degrees); February 2013 VA Examination (measuring flexion at 85 degrees and extension at 0 degrees); March 2017 Examination (measuring flexion at 90 degrees and extension at 0 degrees); August 2019 Private DBQ (measuring flexion at 75 degrees and extension at 0 degrees). The right knee strain disability did not manifest in dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. See May 2010 VA Examination; February 2013 VA Examination; March 2017 Examination; August 2019 Private DBQ. The Veteran submitted to a VA examination on January 9, 2020. The right knee sprain manifested in arthritis, flexion measured at 80 degrees, and extension measured at 0 degrees; without dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. The Veteran also reported pain, fatigue, and weakness after repetitive use over time. See January 9, 2020 Examination. Even with consideration of additional functional loss due to pain, fatigability, and weakness, the evidence does not show limitations of motion that more nearly approximate a higher 20 percent rating. For these reasons, the appeal for higher rating for right knee sprain disability, which includes rating the same as if arthritis were part of the disability, must be denied. 5. Rating Right Knee Instability Disability from August 26, 2019 The Veteran was in receipt of a 10 percent disability rating for the right knee instability disability from August 26, 2019 to January 1, 2020 and then a 0 percent disability rating from January 7, 2020, under DC 5257. After a review of the evidence, both lay and medical, the Board finds that from August 26, 2019, the right knee instability disability manifested in a sprain causing persistent instability and was treated with a prescribed assistive device, as required for a 20 percent rating. According to the private DBQ, conducted on August 26, 2019, and the January 2020 VA examination, the Veteran complained of persistent instability, and used a cane for mobility. While it is unclear whether the cane was specifically prescribed by a medical professional, the Board resolves reasonable doubt in favor of the Veteran on this question to find that it was prescribed for the purpose of treating the right knee instability. The evidence does not indicate that the right knee instability disability manifested in an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation to warrant a higher rating. Based on the foregoing, the Board finds that the right knee instability disability warrants a 20 percent rating from August 26, 2019 under DC 5257. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.