Citation Nr: 21013967 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-43 539 DATE: March 11, 2021 ORDER 1. Entitlement to service connection for asthma, as secondary to service-connected sinusitis, is granted. 2. Entitlement to service connection for bilateral hearing loss is denied 3. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the right knee, with limitation of flexion, (right knee disability) is denied. 4. Entitlement to an initial compensable rating for limitation of extension of the right knee is denied. 5. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left knee, with limitation of flexion, (left knee disability) is denied. 6. Entitlement to an initial compensable rating for limitation of extension of the left knee is denied. 7. Entitlement to an increased rating in excess of 30 percent for sinusitis is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence is in at least relative equipoise as to whether his asthma is aggravated by his service-connected sinusitis. 2. The evidence of record does not show that the Veteran’s bilateral hearing loss was caused by his active service. 3. Throughout the appeal period, the Veteran’s right knee has not demonstrated flexion to 30 degrees or instability. 4. Throughout the appeal period, the Veteran’s right knee has not demonstrated extension to 10 degrees. 5. Throughout the appeal period, the Veteran’s left knee has not demonstrated flexion to 30 degrees or instability. 6. Throughout the appeal period, the Veteran’s left knee has not demonstrated extension to 10 degrees. 7. Throughout the appeal period, the Veteran’s sinusitis has not been manifested by near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries; he has not had radical surgery with chronic osteomyelitis. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma, aggravated by sinusitis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. Throughout the appeal period, the criteria for an increased rating in excess of 10 percent for the right knee disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Criteria (DC) 5003-5260 (2020). 4. Throughout the appeal period, the criteria for an initial compensable rating for limitation of extension of the right knee have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5003-5261 (2020). 5. Throughout the appeal period, the criteria for an increased rating in excess of 10 percent for the left knee disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5003-5260 (2020). 6. Throughout the appeal period, the criteria for an initial compensable rating for limitation of extension of the left knee have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5003-5261 (2020). 7. The criteria for a rating in excess of 30 percent for sinusitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.71a, DC 6513 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to June 1968. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from March 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction has since been transferred to the RO in Los Angeles, California. The Veteran originally requested a hearing regarding his appeal. However, in March 2019 correspondence, his representative indicated that the Veteran was withdrawing his hearing request. Thus, the request is deemed withdrawn and the Board will proceed with adjudication of the claim. In July 2019, the Board reopened the claim for service connection for asthma, and remanded all of the issues on appeal for the purposes of scheduling VA examinations for these conditions. In May 2020, the Board again remanded this appeal for further development. It has now returned to the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In addition, certain listed chronic diseases, such as sensorineural hearing loss, as diseases of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for asthma, as secondary to the service-connected sinusitis, is granted. The Veteran has been diagnosed with asthma. See December 2020 VA Examination Report. Here, the record contains probative medical evidence in support of the contention that the Veteran’s asthma is secondary to his service-connected sinusitis. In November 1998, a VA examiner opined that it was possible that sinus drainage could be aspirated and precipitate bronchospasms. However, she explained that there were no medical records to support the conclusion that this was occurring in the Veteran’s situation. In a May 2019 private treatment record, Dr. J.B. indicated that the Veteran’s asthma and sinus conditions were related. See Pulmonary and Sleep Associates of South Florida Treatment Record dated May 16, 2019. In December 2020, a VA examiner opined that it was at least as likely as not that the Veteran’s asthma was aggravated beyond its natural progression by the service-connected sinusitis. She explained that rhinosinusitis was very common in individuals with asthma and was associated with worse asthma control. The examiner further cited to medical literature that identified a link between the two conditions. As she based this opinion on an explanation of the related biological processes and supported her conclusion with medical literature linking asthma and sinusitis, the Board affords this opinion probative weight. The December 2020 VA medical opinion puts the evidence at least in relative equipoise that the Veteran’s service-connected sinusitis aggravated his asthma. Therefore, service connection may be granted. 2. Entitlement to service connection for bilateral hearing loss is denied. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran seeks service connection for bilateral hearing loss, which he contends is related to noise exposure during his military service. A VA audiological examination conducted in November 2020 shows auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 65 70 80 95 LEFT 65 75 75 75 80 Because the auditory thresholds for at least one of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater in both ears, bilateral hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met. See Walker, 708 F.3d at 1337. Next, the evidence of record indicates that the Veteran experienced noise exposure during service. The Veteran’s DD 214 reflects that he received several badges related to sharpshooting and marksmanship during service. Therefore, it is reasonable to presume that he was frequently exposed to gunfire while on active duty. However, the Board finds that the record does not contain evidence indicating that it is at least as likely as not that the currently diagnosed bilateral hearing loss is the result of the noise exposure during service. In August 2015, a VA examiner concluded that the Veteran’s bilateral hearing loss was not caused by his military service. She noted that his hearing thresholds at the time of entrance and separation were within normal limits. The examiner further explained that noise-induced hearing loss would not progress once the noise exposure had stopped, based upon medical literature. The November 2020 VA examiner opined that the Veteran’s hearing loss was not related to service. He based this opinion upon the audiogram at separation, which did not reflect a permanent shift in hearing thresholds between entrance and separation. He explained that this was objective evidence of a lack of permanent auditory damage during active duty. The examiner further noted the absence of complaints or treatment related to hearing loss prior to separation. While the examiner acknowledged the Veteran’s conceded noise exposure during service, he concluded that auditory damage and hearing loss were not conceded based upon noise exposure alone. In this case, he determined that there was no relationship between the Veteran’s noise exposure and current hearing loss. The Board finds that the VA examiners’ opinions are adequate and the most probative evidence of record on this matter. The examiners detailed the relevant evidence in the claims file and properly accepted as true the Veteran’s account of in-service noise exposure. Nevertheless, they concluded that the Veteran’s current hearing loss was not causally or etiologically related to his military service based upon the lack of permanent auditory damage during active duty. These opinions were each based on a thorough review of the claims file and consideration of the service treatment records. The Board has considered the lay statements of the Veteran. However, he does not have medical expertise, and therefore are not competent to give a probative opinion concerning the etiology of his hearing loss. Although disabilities of the nervous system, including sensorineural hearing loss, are subject to presumptive service connection; service connection would not be warranted unless the conditions manifested to a compensable degree within a year of the Veteran’s release from active service or if he exhibited continuity of symptomatology since that time. Here, the Board notes that the Veteran reported a gradual onset of bilateral hearing loss beginning in 2015, which is more than 45 years following his separation from service. See VA Examination Report dated November 2020. In this case, there is no probative evidence of bilateral hearing loss manifested to a compensable degree within one year from discharge, nor is there probative evidence showing continuity of symptomatology. Ultimately, the weight of the evidence is against a finding of continuity of symptoms of bilateral hearing loss dating back to service or a presumptive period. The Board bases these findings on the VA examiners’ well-supported opinions that the bilateral hearing loss is not related to in-service noise exposure. Furthermore, service treatment records demonstrate no complaints or a diagnosis of hearing loss for VA purposes during service. The Board acknowledges the Veteran’s representative’s contention that the hearing loss may be related to his service-connected sinusitis, as they were both identified in a July 2016 Disability Benefits Questionnaire (DBQ). However, the Board finds that the evidence of secondary causation or aggravation does not rise to the level that would warrant a medical opinion. The VA medical opinions of record address direct service connection. The remaining evidence of record does not indicate a relationship between the Veteran’s hearing loss and his service-connected sinusitis. As such, the evidence of record does not meet even the low threshold of McLendon which refers to evidence that a current disability may be related to a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that referral for a VA medical opinion is not warranted as it pertains to secondary service connection. In conclusion, the weight of the evidence is against the claims for service connection for bilateral hearing loss. Reasonable doubt does not arise, and the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to increased ratings in excess of 10 percent for limitation of flexion, as well as initial compensable ratings for limitation of extension, for the bilateral knee disability, is denied. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). The Veteran seeks increased ratings for his bilateral knee disability, as both knees are each currently assigned a 10 percent rating under DC 5260. The Veteran’s bilateral knees are also separately rated noncompensable under DC 5260, effective December 5, 2020. The knee may be rated under various diagnostic codes. The criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the 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 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5260 and 5261 remained the same. The diagnostic criteria applicable to recurrent subluxation or lateral instability, prior to February 7, 2020, is found at 38 C.F.R. § 4.71a, DC 5257 (2020). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the 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.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The criteria for DC 5257 have been amended to address recurrent subluxation and patellar instability, effective February 7, 2020, as explained below. Under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a 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. A 20 percent rating is warranted for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, DC 5257 awards a 10 percent rating 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 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. 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. 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. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5258 and 5259 remained the same. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 and have been amended, effective February 7, 2020. Under that code, prior to February 7, 2020, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Since February 7, 2020, malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula continues to warrant a 40 percent evaluation with loose motion, requiring a brace. Medial tibial stress syndrome (MTSS) and shin splints are also rated under DC 5262, effective February 7, 2020. A noncompensable rating is warranted for treatment for less than 12 consecutive months for one or both lower extremities. A 10 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to either shoe orthotics or other conservative treatment for one or both lower extremities. A 20 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for both lower extremities. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, the diagnostic criteria related to ankylosis of the knee, DC 5256, and genu recurvatum, DC 5263, remained the same. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2020). As the Veteran has not had a knee replacement, or demonstrated ankylosis or genu recurvatum in either knee, these codes are inapplicable. In December 2020, the Veteran underwent a VA examination to evaluate the severity of his bilateral knee disability. He reported symptoms including pain, frequent falls, and limited range of motion. He denied experiencing flare-ups. He described functional loss involving difficulty lifting, as well as difficulty standing and walking for prolonged periods of time. In the right knee, flexion was to 125 degrees, with extension to 0 degrees. In the left knee, flexion was to 130 degrees, with extension to 5 degrees. Both ranges of motion exhibited pain and caused functional loss bilaterally. There was no localized tenderness or pain on palpation of the joint in either knee. Both knees exhibited crepitus and pain with weight bearing and passive motion. There was no evidence of pain with non weight-bearing testing. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of range of motion. Although he was not examined after repetitive use over time, the examiner opined that flexion would be limited to 120 degrees and extension would be further limited to 5 degrees in the right knee. In the left knee, he estimated that extension would be limited to 115 degrees and extension would not be further limited. Muscle strength testing was normal, with no evidence of atrophy in either knee. There was no evidence of ankylosis in either knee. The examiner noted no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing results were normal in both knees. There was no history or evidence of recurrent patellar dislocation, “shin splints” (MTSS), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted a history of a meniscal tear in the right knee, with no associated symptomatology. The Veteran regularly used a cane to assist with ambulation. The Veteran also underwent a nondegenerative arthritis examination for his bilateral knee disability in December 2020. The exam revealed no evidence of related anemia, weight loss, or joint deformities. The Veteran did not require continuous use of medication for this condition, nor did he experience any episodes of exacerbations. The Veteran’s VA and private treatment records reflect that the Veteran occasionally reported giving way of his right knee. See VA Treatment Records dated June 23, 2014 and June 26, 2018; CAMC Orthopedic Trauma Treatment Record dated August 2014. However, in June 2019, he denied locking or giving way of either knee. See CAMC Orthopedic Trauma Group Treatment Record dated June 27, 2019. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for either of the Veteran’s knees under DC 5260. As stated, the Veteran demonstrated flexion to 125 degrees in the right knee and 130 degrees in the left knee. To warrant the next higher rating of 20 percent, flexion would need to be limited to 30 degrees. As such limitations have not been demonstrated during the period on appeal, a higher rating under DC 5260 is not warranted for either knee. With respect to ratings for limitation of extension under DC 5261, full extension was noted in the right knee, with extension limited to 5 degrees in the left knee. These ranges of motion do not approximate the criteria for a compensable evaluation. To do so, extension would have to be limited to 10 degrees or more. Thus, the evidence is against a finding that a compensable rating for limitation extension is warranted. Furthermore, there is no indication of any symptomatology that would warrant a separate rating in excess of 10 percent for either knee under DC 5257. The Board acknowledges that the Veteran has reported giving way of his right knee and related falls. However, the record does not reflect any probative evidence of joint instability in either knee. As stated, the December 2020 examiner performed a complete joint instability test and determined that there was no recurrent subluxation or lateral instability in either knee. There were no medical findings of any instability at that time. The Board considers treatment and examination findings to be the most probative evidence on the question of instability, as they reflect the outcome of evaluations by trained professionals. As these do not provide evidence of recurrent subluxation, lateral instability, or patellar instability, a separate rating under DC 5257 is not warranted for the either knee. The Board notes that the Veteran has a history of a right meniscal tear. However, a rating under DC 5258, is not warranted as the Veteran does not appear to currently experience dislocated semilunar cartilage, or in any event, symptoms that include locking and effusion in either knee. Indeed, in June 2019, he denied experiencing locking in either knee. As DC 5259 does not provide for a greater rating, the Board finds that any additional compensation under this code is not indicated. The medical evidence is also negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under DCs 5256 and 5263. The record is also silent for any complaints, treatments or diagnoses of an impairment of the tibia or fibula. Thus, a separate rating under DC 5262 is not warranted. In evaluating the Veteran’s increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing during the period on appeal. Furthermore, regarding repetitive use over time, the December 2020 examiner estimated that flexion and extension would be further limited by 5 degrees in the right knee, and that flexion would be further limited by 15 degrees in the left knee, with no additional limitation of extension. As such, the pertinent evidence of record has not revealed that flexion and extension of both knees were further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating. Therefore, the Board finds that a rating higher than the current ratings assigned is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, the Veteran denied experiencing flare-ups at the December 2020 VA examination. VA and private treatment records are also silent regarding any indication of flare-ups in either knee. 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, there are no reports of exacerbation or flare-ups to warrant a change in evaluation. Thus, the Board finds the examination report of record is adequate for rating purposes and that a higher disability rating is not warranted, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. In summary, the Board finds the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for limitation of flexion, as well as a compensable rating for limitation of extension, for the service-connected right and left knee disabilities. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an increased rating in excess of 30 percent for sinusitis is denied. The Veteran asserts he is that he is entitled to a higher disability rating for his sinusitis, which is currently rated 30 percent disabling under DC 6513. Pursuant to DC 6513, a 30 percent disability rating is warranted for three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6513, Note. In July 2016, the Veteran submitted a DBQ regarding his sinusitis. He reported experiencing chronic, but not near constant, sinusitis accompanied by purulent discharge or crusting. He had experienced four non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. The report noted greater than 50 percent obstruction of the nasal passage on both sides, but not complete obstruction of either side. There was evidence of permanent hypertrophy of the nasal turbinates, but no indication of nasal polyps. The examiner further indicated that the Veteran required daily saline rinses and frequent antibiotic treatment due to his sinusitis. Most recently, in December 2020, the Veteran was afforded a VA examination for his sinusitis. He described experiencing severe sinusitis, resulting in sinus pressure, nasal congestion, and difficulty breathing. He reported having eight sinus episodes annually. The examiner noted chronic sinusitis resulting in frequent episodes of sinusitis and pain of the affected sinus. The Veteran had not experienced any non-incapacitating or incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. The examiner noted two previous endoscopic surgeries related to his condition, but no radical procedures. The report noted greater than 50 percent obstruction of the nasal passage on both sides, but not complete obstruction of either side. There was no evidence of nasal polyps or permanent hypertrophy of the nasal turbinates. After review of all the pertinent evidence of record, the Board finds that neither the medical or lay evidence of record establishes that the Veteran has undergone radical surgery followed by chronic osteomyelitis, nor has he experienced near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, or purulent discharge or crusting after repeated surgeries. Indeed, the Veteran did not report experiencing near constant sinusitis at any point during the appeal period, nor did either examiner characterize his condition as near constant. Additionally, the record reflects that he underwent two endoscopic procedures to alleviate his sinusitis, but no there is no history of radical surgeries related to this condition. As such, a rating higher than 30 percent is not warranted. The Board also notes that the Veteran’s representative contends that an extraschedular rating is warranted for this condition. However, the Board finds that referral of this case for extraschedular consideration is not warranted, for the following reasons. Because the ratings provided in the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran’s circumstances, but nevertheless is still considered adequate to address the average impairment in earning capacity caused by the disability. 38 C.F.R. § 3.321 (b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b). These criteria involve distinct elements, each of which must be satisfied to warrant extraschedular referral. Chudy v. O’Rourke, 30 Vet. App. 34, 37-38 (2018); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). The first element requires the Board to determine whether the evidence presents such an exceptional or unusual disability picture that the available schedular evaluations for the disability under consideration are inadequate. Thun, 22 Vet. App. at 115. This requires the Board to compare the Veteran’s symptoms and their severity with those contemplated by the rating schedule. King v. Shulkin, 29 Vet. App. 174, 178-79 (2017). If the Board determines that the Veteran’s symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. If the first two elements are met, then under the third element the Board must refer the claim to the Under Secretary for Benefits or the Director of Compensation Service for a determination as to whether an extraschedular rating is warranted. Id. If either of the first two elements is not satisfied, then referral is not warranted. Chudy, 30 Vet. App. at 37-38; Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). The Board finds that the first element is not met. As discussed above, the Board finds that the Veteran’s frequent episodes of chronic sinusitis and related symptomatology, including pain and purulent crusting and/or discharge, represents a severity of disability that is captured by the 30-percent rating assigned. Furthermore, his nasal obstruction, related endoscopic procedures, antibiotic treatment and saline rinses are clearly contemplated by the 30 percent rating. Indeed, both examiners of record found that the Veteran did not experience near constant sinusitis, nor had he undergone a radical surgical procedure, as to warrant a higher rating. See 38 C.F.R. § 4.97, DC 6513. The record does not reflect any additional reported symptomatology that would warrant an extraschedular rating for this condition. Further, and in the alternative, the Board finds that even if the nature or severity of the Veteran’s symptoms are not fully captured by a 30-percent rating, the second element for extraschedular referral is not satisfied, since there are no related factors such as marked interference with employment or frequent periods of hospitalization. Indeed, the Veteran has not contended that he has been frequently hospitalized for this condition outside of his previous endoscopic procedures. Additionally, he reported occasionally missing work prior to his retirement due to his sinusitis. However, the December 2020 examiner indicated this amounted to less than one week of work time lost, which does not rise to the level of “marked” interference. Accordingly, the Board finds that the criteria for extraschedular referral are not met. See Chudy, 30 Vet. App. at 37-38; Yancy, 27 Vet. App. at 494-95. Because the preponderance of the evidence is against a rating higher than 30 percent for the Veteran’s sinusitis, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, the Board has considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised based upon the bilateral knee disability and sinusitis. Neither the Veteran nor his representative has suggested that a TDIU is warranted in this case based these disabilities. Moreover, the evidence shows that the Veteran is currently retired, but gives no indication that the Veteran was previously rendered unemployable due to these conditions. Therefore, the Board finds that the issue of entitlement to a TDIU based on the disability at issue has not been raised in this case. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.