Citation Nr: 21013905 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-06 523 DATE: March 10, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent prior to May 16, 2018, for the service-connected left leg injury with knee pain is denied. Entitlement to a disability rating of 30 percent from May 16, 2018 for the service-connected left leg injury with knee pain is granted. Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for left leg injury with knee pain, instability, with a disability rating of 10 percent, is granted. Entitlement to an initial compensable disability rating for the service-connected scars on left leg associated with left leg injury with knee pain prior to May 16, 2018 is denied. Entitlement to a 20 percent disability rating since May 16, 2018 for the service-connected scars on the left leg associated with left leg injury with knee pain is granted. Entitlement to an initial compensable disability rating for the service-connected scars on left leg based on combined area affected is denied. FINDINGS OF FACT 1. Prior to May 16, 2018, the Veteran’s service-connected left leg injury with knee pain disability consisted of symptoms approximating malunion of the tibia and fibula, with slight knee disability; without evidence of malunion of the tibia and fibula, with moderate knee disability, recurrent subluxation or lateral instability, dislocated semilunar cartilage, ankylosis, genu recurvatum, nor compensable limitation of motion or the functional equivalent thereof. 2. Since May 16, 2018, the Veteran’s service-connected left leg injury with knee pain disability consisted of symptoms approximating malunion of the tibia and fibula, with marked knee disability; without evidence of nonunion of the tibia and fibula, with loose motion, requiring a brace, recurrent subluxation or lateral instability, dislocated semilunar cartilage, ankylosis, genu recurvatum, nor compensable limitation of motion or the functional equivalent thereof. 3. Since May 16, 2018, the Veteran’s service-connected left leg injury with knee pain disability has presented with at least slight instability. 4. Prior to May 16, 2018, the Veteran’s service-connected scars on left leg associated with left leg injury with knee pain were not painful or unstable, had no resulted in functional impairment, and did not affect an area of at least 6 square inches (39 square centimeters). 5. Since May 16, 2018, the Veteran’s service-connected scars on the left leg associated with left leg injury with knee pain have become painful; however, the scars have not resulted in functional impairment and are not unstable. 6. The Veteran’s service-connected scars on left leg associated with left leg injury with knee pain based on combined area affected have not affected an area of at least 6 square inches (29 square centimeters). CONCLUSIONS OF LAW 1. Prior to May 16, 2018, the criteria for an increased disability rating in excess of 10 percent for the service-connected left leg injury with knee pain have not been met. 38 U.S.C. §§ 1155, 510; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 2. Since May 16, 2018, the criteria for entitlement to a 30 percent disability rating for the service-connected left leg injury with knee pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 3. The criteria for a separate compensable rating of 10 percent for left leg injury with knee pain, with slight instability, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. Prior to May 16, 2018, the criteria for an initial compensable disability rating for the service-connected scars on left leg associated with left leg injury with knee pain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 5. Since May 16, 2018, the criteria for entitlement to a 20 percent disability rating for the service-connected scars on the left leg associated with left leg injury with knee pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 6. The criteria for entitlement to an initial compensable disability rating for the service-connected scars on left leg associated with left leg injury with knee pain based on combined area affected have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from June 1993 to June 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the record. The Board previously remanded the case for further development in February 2018 and September 2019. The case has since been returned for appellate review. During the pendency of the appeal, in a June 2019 rating decision, the RO granted service connection for scars on the left leg associated with left leg injury with knee pain with an evaluation of 0 percent, effective May 24, 2011, the date of the claim for entitlement to service connection for left leg injury with knee pain. In an August 2020 rating decision, the RO increased the evaluation of the Veteran’s service-connect left leg injury with knee pain from 10 percent to 30 percent, effective December 10, 2019, the date of the Veteran’s VA examination for his left leg injury. In the same August 2020 rating decision, the RO also increased the evaluation of the Veteran’s scars on the left leg associated with left leg injury with knee pain from 0 percent to 20 percent, effective December 10, 2019, the date of the Veteran’s VA examination for scars on his left leg associated with his left leg injury. Additionally, in the same August 2020 rating decision, the RO granted a separate rating evaluation of 0 percent for scars on the left leg associated with left leg injury associated with knee pain based on combined area affected, effective December 10, 2019, the date of the Veteran’s VA examination for scars on his left leg associated with his left leg injury. As these awards did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to an increased disability rating in excess of 10 percent prior to May 16, 2018 for the service-connected left leg injury with knee pain disability 2. Entitlement to a disability rating of 30 percent from May 16, 2018 for the service-connected left leg injury with knee pain disability 3. Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for left leg injury with knee pain, instability, with a disability rating of 10 percent Service connection was originally established for the Veteran’s left leg injury with knee pain in a December 1997 rating decision and a 10 percent disability rating was assigned, effective June 2, 1997. Thereafter, a December 2011 rating decision continued the 10 percent disability rating for the left leg injury with knee pain. Per an August 2020 rating decision, the RO increased the disability rating from 10 percent to 30 percent, effective from December 10, 2019. The Veteran’s left leg injury with knee pain is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262. Degenerative joint disease of the knee is rated under Diagnostic Code 5010. Diagnostic Code 5010 directs that arthritis due to trauma, substantiated by X-ray findings, should be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 directs that arthritis be evaluated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.59 (the intent of the schedule is to recognize painful motion with joint pathology as productive of disability and to recognize actually painful unstable or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Diagnostic Code 5262 pertains to impairments of the tibia and fibula. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. It should also be noted that use of terminology such as “slight” and “moderate” by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Disabilities of the knee joint, generally, are rated under Diagnostic Codes 5256 through 5263. See 38 C.F.R. § 4.71a. Separate evaluations under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension), may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990. Further, a claimant who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Under Diagnostic Code 5258, dislocation of the meniscal cartilage with frequent episodes of locking, pain and effusion into the joint warrants a 20 percent rating, and under Diagnostic Code 5259, removal of meniscal cartilage with symptoms warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Limitation of flexion of the leg is rated under Diagnostic Code 5260. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is rated under Diagnostic Code 5261. A noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. A. Prior to May 16, 2018 VA treatment records indicate that the Veteran has reported chronic knee pain and swelling, as well as treatment for his left leg injury. The Veteran was afforded a VA knee and lower leg examination in September 2011. The Veteran reported that following a left tibia and fibula fracture in 1996 while stationed at Camp LeJeune, he developed a compartment syndrome and underwent intramedullary nailing with fasciotomy of his left lower extremity. He stated that he began experiencing pain in his knee in 1998, and that his knee constantly gives out and swells. The Veteran reported no flare-ups that impacted the function of his knee and/or lower leg. Initial range of motion testing revealed left knee flexion to 120 degrees, with objective evidence of pain; extension to 0 degrees, with objective evidence of pain. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion. The examiner reported that the Veteran does not have functional loss and/or functional impairment of the knee and lower leg, but does have pain on movement in his left leg. The examiner also observed tenderness or pain to palpitation for joint line or soft tissues of the left knee. Muscle strength testing revealed active movement against some resistance during flexion and extension of his left knee. Joint stability testing revealed no joint instability as findings were normal on anterior, posterior, medial, and lateral instability testing. The examiner reported no recurrent patellar dislocation, but did have stress fracture of the lower extremity with constant and chronic pain to the lower extremity secondary to tibia/fibula fracture with placement of intramedullary rod and screws. The examiner further reported no “shin splints” (medial tibial stress syndrome), chronic exertional compartment syndrome, or meniscus (semilunar cartilage) condition. The examiner noted that the Veteran had a total knee joint replacement of the left knee in 1996, with residual pain. The Veteran did not use an assistive device as a normal mode of locomotion. The examiner found there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. The examiner reported that imaging studies revealed no degenerative arthritis. The examiner found that the Veteran’s lower leg condition did not impact his ability to work. The Veteran was next afforded a VA knee and lower leg examination in December 2015. The Veteran reported chronic leg pain that worsened with time and use. The Veteran reported no flare-ups. Initial range of motion testing revealed left knee flexion to 105 degrees, with objective evidence of pain; extension to 0 degrees, with objective evidence of pain. The examiner noted evidence of pain with weightbearing, objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion. The examiner could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal for left knee flexion and extension. The Veteran does not have ankylosis of the left knee or lower left leg. Joint stability testing was not performed because the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner reported that the Veteran has chronic exertional compartment syndrome in his left side that does not affect the range of motion in the left ankle but does cause pain in the left calf. The examiner noted that the Veteran had left knee surgery in 1996, with residual pain. The Veteran did not use an assistive device as a normal mode of locomotion. The examiner found there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. The examiner reported that imaging studies revealed degenerative arthritis of the left knee; however, there were no other significant diagnostic test findings and/or results. The examiner found that the Veteran’s lower leg condition impacted his ability to work, noting that he could his job but with pain. Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran’s service-connected left leg injury with knee pain disability is not warranted prior to May 16, 2018 because the Veteran’s left tibia/fibula stress fracture disability is manifested by pain and malunion of the tibia and fibula with slight knee disability, which more nearly approximates a 10 percent disability rating. In other words, the Veteran’s service-connected left leg injury with knee pain disability is not manifested by symptoms of such severity, frequency, and duration that more nearly approximate a moderate disability of the left knee prior to May 16, 2018. While the Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of pain and swelling in his left knee, the objective evidence of record does not show malunion of the tibia and fibula with moderate knee disability. In making this finding, the Board accords significant probative weight to the VA examinations conducted in September 2011 and December 2015. The record reflects the examiners reviewed the Veteran’s pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examinations are adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board is cognizant of Correia v. McDonald, 28 Vet. App. 158 (2016), wherein the United States Court of Appeals for Veterans Claims (Court) elaborated on VA examination requirements with respect to joint testing for pain pursuant to 38 C.F.R. § 4.59. However, the Board has reviewed the VA examinations and finds them to be consistent with the intent of 38 C.F.R. § 4.59 to the extent that the examinations recognize painful motion. Moreover, retroactive motion testing cannot be performed to determine the range of motion in the manner now required by Correia. An examiner’s assessment of the range of motion findings required by that case would, at this point, amount to pure speculation on the part of any examiner. The Board has also considered whether separate evaluations under other potentially applicable diagnostic codes would result in a higher award. However, even considering his complaints of pain which the Veteran is being compensated for and other symptoms described in DeLuca, neither flexion limited to 30 degrees or less, nor extension limited to 15 degrees, has been shown such that a higher rating would be warranted under either Diagnostic Code 5260 or 5261. Similarly, there is no evidence of ankylosis, recurrent subluxation, a meniscal condition, or genu recurvatum, meaning that Diagnostic Codes 5256, 5257, 5258, 5259, and 5263 are also inapplicable. In summary, the preponderance of the competent, credible, and probative evidence is against assigning a rating in excess of 10 percent for the Veteran’s service-connected left leg injury with knee pain disability prior to May 15, 2018, and the appeal is denied. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected left leg injury with knee pain disability, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected left leg injury with knee pain disability varied to such an extent that an increased evaluation would be warranted. Hart, supra. B. From May 15, 2018 VA treatment records indicate that the Veteran has reported chronic knee pain and swelling, as well as instability in his left leg. The Veteran was afforded a VA knee and lower leg examination in May 2018. The Veteran reported in addition to arthritis in his left knee, he had decreased range of motion, instability so severe that it caused him to fall, and constant swelling in his left knee. He also reported that his left knee locks up so that he cannot move it. The examiner noted that the condition had gotten worse with pain and swelling on the left leg and left knee, which caused a permanent limp. The Veteran reported flare-ups due to increased activity, weather changes, and occasionally for no discernable reason. The Veteran reported his functional loss or functional impairment as being unable to walk greater than a quarter mile and unable to stand longer than 15 to 20 minutes. Initial range of motion testing revealed left knee flexion to 80 degrees, with objective evidence of pain; extension to 0 degrees, with objective evidence of pain. The examiner noted evidence of pain with weightbearing and objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, noting that it was very tender over the patella, but no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion. The examiner stated that pain significantly limited functional ability with repeated use over a period of time. Muscle strength testing revealed active movement against some resistance during flexion and extension of his left knee. The examiner noted that the Veteran did not have muscle atrophy. The Veteran does not have ankylosis of the left knee or lower left leg. Joint stability testing revealed no joint instability as findings were normal on anterior, posterior, medial, and lateral instability testing. The examiner reported that the Veteran has never had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted that the Veteran has never had a meniscus condition. The examiner noted that the Veteran had left knee surgery in 1996, with residual pain and cramping of the left calf. The Veteran occasionally uses a knee brace as an assistive device as a normal mode of locomotion. The examiner found there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. The examiner reported that imaging studies did not reveal degenerative arthritis and that there were no other significant diagnostic test findings and/or results. The examiner found that the Veteran’s lower leg condition impacted his ability to work, noting that the Veteran was unable to walk greater than a quarter mile and unable to stand longer than 15 to 20 minutes. Additionally, the examiner noted that there was objective evidence of pain on passive range of motion testing of the left knee, but no evidence of pain on non-weight bearing testing of the left knee. The Veteran was afforded a VA knee and lower leg examination in December 2019. The examiner noted the Veteran had diagnosis of a left tibia and fibula fracture, left knee instability, and left knee degenerative arthritis, all from 1996. The Veteran reported pain in his left knee and lower leg, instability, inability to stand or walk for long period, inability to perform manual tasks, run, or exercise. The Veteran reported that he has been relegated to sedentary jobs. The Veteran reported daily severe flare-ups that last between 1 and 2 hours. The left knee flare ups are precipitated by walking, standing, changing positions, climbing stairs, bumping the knee or leg on an object. The Veteran reported his functional loss or functional impairment as being unable to run, exercise, walk, stand, change positions, and sleep comfortably. He also reported that he can only perform jobs of a sedentary nature. Initial range of motion testing revealed left knee flexion to 55 degrees, with objective evidence of pain; extension to 0 degrees, with objective evidence of pain. The examiner noted evidence of pain with weightbearing, objective evidence of crepitus, and objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, noting the location is the left lateral leg and scar, left medial leg and scar and across the patella horizontally, as well as the lateral and medial knee joint. The Veteran was able to perform repetitive-use testing with three repetitions with additional limitation in range of motion. Range of motion testing after three repetitions revealed left knee flexion to 45 degrees and extension to 0 degrees. The examiner stated that pain, fatigue, weakness, lack of endurance, and incoordination caused this additional loss of function and range of motion after three repetitions. The examiner noted the following additional factors that contributed to the Veteran’s left knee disability: swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing revealed active movement against gravity during flexion and extension of his left knee. The examiner reported that the Veteran did not have muscle atrophy. The Veteran does not have ankylosis of the left knee or lower left leg. The examiner noted the Veteran had a history of recurrent effusion. The examiner was unable to perform joint stability testing because it was too painful for the Veteran to attempt. The examiner reported that the Veteran has never had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted that the Veteran has never had a meniscus condition. The examiner noted that the Veteran had left leg fasciotomy surgery in 2012, with residual weakness, instability, pain, swelling, limited range of motion, and falling secondary to left knee locking up. The Veteran constantly uses a knee brace as an assistive device as a normal mode of locomotion. The examiner found there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. The examiner reported that no imaging studies of the knee had been performed and that there were no other significant diagnostic test findings and/or results. The examiner found that the Veteran’s lower leg condition impacted his ability to work, noting that the Veteran was not able to sit, stand, walk for long periods of time without stopping to rest. He also noted that the Veteran had demonstrated a limp and difficulty walking straight. He further noted that the Veteran guarded his left knee due to pain and feelings of instability. The examiner stated that the Veteran can only do sedentary work. Additionally, the examiner noted left knee passive range of motion testing was not performed as it was not medically appropriate because it was too painful to attempt. The examiner reported there was objective evidence of pain on non-weight bearing testing of the left knee. The examiner further noted that the complaint of left knee stability had been in the record for several years since the initial surgery and has become worse with age and continued use. Upon review of the record, the Board finds that a 30 percent rating for the Veteran’s service-connected left leg injury with knee pain disability under Diagnostic Code 5262 is warranted since May 16, 2018, because the Veteran’s left leg injury with knee pain disability is manifested by pain and malunion of the tibia with marked knee disability, which more nearly approximates a 30 percent disability rating. In other words, the Veteran’s service-connected left leg injury with knee pain disability is manifested by symptoms of such severity, frequency, and duration that more nearly approximates a marked disability of the left knee since May 16, 2018. A disability rating in excess of 30 percent is not warranted for the Veteran’s left leg injury with knee pain disability. A higher rating under Diagnostic Code 5262 requires nonunion of the tibia and fibula, with loose motion, requiring brace. The Veteran is only noted as having malunion of the tibia and fibula, not nonunion. Consequently, a rating in excess of 30 percent is not warranted for the Veteran’s left leg injury with knee pain disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Accordingly, a 30 percent disability rating, but no higher, under Diagnostic Code 5262 for the service-connected left leg injury with knee pain disability is warranted from May 16, 2018. After careful review, the Board finds that the most probative evidence is at least in equipoise as to whether a separate 10 percent rating for the left knee should be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for the period from May 16, 2018. During the May 2018 VA examination, the Veteran reported instability so severe that it caused him to fall. This is consistent with the Veteran’s need for a left knee brace, to assist with his stability, which he continued to use at the time of his December 2019 VA examination. Additionally, the Veteran testified in his Board hearing that his left knee “locks up” and has caused him to fall; his credible testimony is evidence is support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); see also Hearing Transcript, received by VA in October 2017. As such, the Board finds that the Veteran demonstrates at least slight instability of the left knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered whether separate evaluations under other potentially applicable diagnostic codes would result in a higher award. However, even considering his complaints of pain which the Veteran is being compensated for and other symptoms described in DeLuca, neither flexion limited to 15 degrees or less, nor extension limited to 20 degrees, has been shown such that a higher rating would be warranted under either Diagnostic Code 5260 or 5261. In fact, throughout the appeal period, even when considering findings of functional loss due to pain, range of motion in the Veteran’s left still falls within the noncompensable range under Diagnostic Codes 5260 and 5261. Thus, higher or separate ratings under Diagnostic Code 5260 and/or 5261 for limitation of motion are not warranted for the bilateral tibial stress fractures at any point during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Similarly, there is no evidence of ankylosis, a meniscal condition, or genu recurvatum, meaning that Diagnostic Codes 5256, 5258, 5259, and 5263 are also inapplicable. 4. Entitlement to an initial compensable disability rating for the service-connected scars on left leg associated with left leg injury with knee pain prior to May 16, 2018 5. Entitlement to a 20 percent disability rating since May 16, 2018 for the service-connected scars on the left leg associated with left leg injury with knee pain 6. Entitlement to an initial compensable percent disability rating for the service-connected scars on left leg based on combined area affected Service connection was originally established for the Veteran’s scars on left leg associated with left leg injury with knee pain in a June 2019 rating decision and a 0 percent disability rating was assigned, effective May 24, 2011. Per an August 2020 rating decision, the RO increased the disability rating from 0 percent to 20 percent, effective from December 10, 2019, under 38 C.F.R. § 4.118, Diagnostic Code 7804. The August 2020 rating decision also granted a separate 0 percent disability rating for scars on left leg associated with left leg injury with knee pain based on combined area affected, effective December 10, 2019. 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Id., Diagnostic Code 7804, Note (1) (an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar). During the May 2018 VA examination for knee and lower leg conditions, the Veteran reported that scars from his leg surgery were painful and that he got cramps around the scars. The May 2018 VA examiner noted that the Veteran had three scars on his left leg, but listed that the scars were not painful or unstable. The Veteran was afforded a VA examination for the scars on his left leg in December 2019 pursuant to the September 2019 Board remand. The December 2019 VA examiner noted that the Veteran had the following post-operation scars: a scar on the left lateral lower leg; a scar on the left medial leg; and a scar on the horizontal patella from rod placement. The examiner reported that all three of the scars are “exquisitely” painful even to light palpitation, as well as while moving the leg and knee. The examiner noted that the scars were not unstable, with frequent loss of covering of skin over the scar, or due to burns. The scar on the left lateral lower leg was measured as being 3.14961 square inches (8 square centimeters). The scar on the left medial leg was measured as being 2.75591 square inches (7 square centimeters). The scar on the horizontal patella from rod placement was measured as being 0.708661 square inches (1.8 square centimeters). The examiner reported that there were no scars without underlying tissue damage, but there was one scar with underlying tissue damage located on the left lower extremity with an approximate total area of 16.8 square centimeters. The examiner noted that the three scars on the Veteran’s left leg do not result in limitation of function, but do impact his ability to work due to pain from his scars. Based on the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to the initial 20 percent disability rating for the scars on his left leg on May 16, 2018. As mentioned above, the Veteran is currently in receipt of a 20 percent disability rating for his left leg scars, effective December 10, 2019. Even though the Veteran was not afforded a VA examination specifically to examine the scars on his left leg until December 10, 2019, the May 2018 VA examination shows that the examiner noted the three scars on his leg and notes that the Veteran reported that all three scars were painful. This indicates that the Veteran’s scars were painful as early as May 16, 2018. As such, the Board finds that the Veteran is entitled to an initial 20 percent disability rating for his service-connected left leg scars on May 16, 2018. Although the Veteran’s three left leg scars were noted by the VA examiner in the December 2015 knee and lower leg VA examination, the examiner further noted that the scars were not painful or unstable, did not have a total area equal to or greater than 39 square centimeters (6 square inches), and were not located on the Veteran’s head, face, or neck. Therefore, the Veteran did meet any of the criteria necessary for an initial compensable disability rating for his left leg scars prior to May 16, 2018. An initial disability rating in excess of 20 percent is not warranted for the Veteran’s left leg scars. A higher rating under Diagnostic Code 7804 requires five or more scars that are unstable or painful. The Veteran is only noted as having three scars. A higher rating is also possible under Note (2) of Diagnostic Code 7804 which provides for an additional 10 percent for a scar that is both unstable and painful. While the Veteran did complain that his scars were painful, he never described any of the scars as being unstable. See CAPRI, received by VA in November 2019. Moreover, both the May 2018 and the December 2019 VA examination reports note that none of the scars were unstable. Based on the aforementioned evidence, the Board finds that the Veteran’s scars were stable. Consequently, an initial disability rating in excess of 20 percent is not warranted for the Veteran’s left leg scars. Accordingly, an initial 20 percent disability rating, but no higher, for the service-connected left leg scars is now effective May 16, 2018. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.