Citation Nr: 21021310 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 11-09 374 DATE: April 12, 2021 ORDER Service connection for hearing loss is denied. Service connection for a sinus disability other than allergic rhinitis is denied. From August 16, 2011 to October 24, 2017, a rating of 30 percent for degenerative disc disease (DDD) of the cervical spine is granted. A rating in excess of 30 percent for DDD of the cervical spine is denied. An initial rating of 20 percent for a right knee strain with degenerative joint disease, status post arthroscopy, is granted. Beginning August 29, 2011, a rating of 20 percent for a left knee strain is granted. Beginning August 29, 2011, a rating in excess of 10 percent for left elbow lateral epicondylitis is denied. An initial rating of 10 percent for gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran does not currently have hearing loss meeting the definition of a disability for VA compensation purposes. 2. The most probative evidence shows that the Veteran does not have a current sinus disability other than allergic rhinitis that was incurred in or caused by service or caused or aggravated by a service-connected disability. 3. Beginning August 16, 2011, the Veteran’s DDD of the cervical spine has been manifested by an estimated 10 degrees of flexion during flare-ups with no evidence of unfavorable ankylosis of the entire cervical spine. 4. Throughout the period on appeal, the Veteran’s right knee strain with degenerative joint disease, status post arthroscopy, has been manifested by frequent episodes of locking, pain, and effusion. 5. Beginning August 29, 2011, the Veteran’s left knee strain has been manifested by frequent episodes of locking, pain, and effusion. 6. Beginning August 29, 2011, the Veteran’s left elbow lateral epicondylitis has been manifested by no more than forearm flexion to 110 degrees, extension to 5 degrees, pronation to 70 degrees, and supination to 60 degrees. 7. Throughout the period on appeal, the Veteran’s GERD has been manifested by disability more nearly approximating two or more symptoms for the 30 percent evaluation for hiatal hernia of less severity. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2020). 2. The criteria for establishing entitlement to service connection for a sinus disability other than allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 3. From August 16, 2011 to October 24, 2017, the criteria for a rating of 30 percent for DDD of the cervical spine have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2020). 4. Beginning August 16, 2011, the criteria for a rating in excess of 30 percent for DDD of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020). 5. Throughout the period on appeal, the criteria for an initial rating of 20 percent, but not higher, for right knee strain with degenerative joint disease, status post arthroscopy, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5258 (2020). 6. Beginning August 29, 2011, the criteria for a rating of 20 percent, but not higher, for a left knee strain have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5258 (2020). 7. Beginning August 29, 2011, the criteria for a rating in excess of 10 percent for left elbow lateral epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207, 5213 (2020). 8. The criteria for a rating of 10 percent, but not higher, for GERD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In an April 2016 decision, the Board denied the Veteran’s claims of entitlement to a compensable rating for DDD of the cervical spine prior to August 16, 2011, and a rating in excess of 20 percent thereafter; and denied entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Order, the Court granted a January 2017 Joint Motion for Partial Remand (Joint Motion), vacating the Board’s decision to the extent it denied the aforementioned appeals and remanding them for readjudication. The Board subsequently remanded this matter for further development in January 2017, July 2017, March 2018, and January 2020. In November 2020, the Board, in relevant part, granted a rating of 10 percent, but not higher, for DDD of the cervical spine prior to August 16, 2011; granted a rating of 10 percent, but not higher, for a left knee strain prior to August 29, 2011; granted a rating of 10 percent, but not higher, for left elbow epicondylitis prior to August 29, 2011; and granted a total disability rating based on individual unemployability (TDIU) beginning October 29, 2010. The Board remanded the remaining issues for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 1. Entitlement to service connection for hearing loss For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Upon review of the record, the Board finds that the Veteran does not have a current hearing loss disability for VA compensation purposes. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). The Veteran’s service treatment records note a diagnosis of noise-induced hearing loss during service. However, audiometric testing performed on multiple occasions between 1988 and 2006 did not show hearing loss meeting the definition of a disability for VA compensation purposes. In March 2007, the Veteran reported muffled hearing in the right ear since he flew in an airplane in January 2007. The Veteran underwent a pre-discharge VA audiological examination in September 2007, at which time audiometric testing again did not show hearing loss meeting the definition of a disability for VA compensation purposes. In this regard, the relevant auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 20, 15, 15, and 15 decibels, respectively, in the right ear and 10, 15, 15, 25, and 25 decibels, respectively, in the left ear. Speech recognition testing revealed scores of 96 percent in both ears. The examiner indicated that the Veteran’s hearing was clinically normal. In late September 2007, the Veteran underwent audiometric testing again as part of his retirement physical examination, which did show a diagnosis of hearing loss meeting the definition of a disability for VA compensation purposes. In this regard, the relevant auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 50, 80, 55, 65, and 50 decibels, respectively, in the right ear and 45, 30, 35, 40, and 50 decibels, respectively, in the left ear. Post-service VA treatment records show that audiometric testing performed in May 2011 revealed normal hearing thresholds between 250 and 8000 Hertz in the right ear and normal hearing thresholds between 250 and 6000 Hertz in the left ear. The Veteran underwent another VA examination in April 2017, at which time audiometric testing did not show a diagnosis of hearing loss meeting the definition of a disability for VA compensation purposes. In this regard, the relevant auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 10, 10, 15, and 15 decibels, respectively, in the right ear and 10, 10, 10, 10, and 15 decibels, respectively, in the left ear. Speech recognition testing revealed scores of 94 percent in the right ear and 98 percent in the left ear. The examiner indicated that the Veteran had clinically normal hearing bilaterally. The examiner explained that that the Veteran’s service-treatment records showed mild hearing loss only at 6000 Hertz in 1995 and 1999 and normal hearing between 2002 and 2006. Although the Veteran’s September 2007 retirement examination showed a hearing loss disability, the examiner indicated that the examination is considered an outlier, as subsequent audiological testing performed in May 2011 and April 2017 showed normal hearing bilaterally. The Board finds the opinion of the April 2017 VA examiner to be highly probative and persuasive, as it is based on the results of audiometric testing and a review of the evidence of record and is supported a with reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Although the Veteran is competent to report subjective symptoms of decreased hearing, the diagnosis of hearing loss meeting the definition of a disability for VA compensation purposes requires audiometric testing to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the opinion of the Veteran regarding the diagnosis of a current hearing loss disability is not competent medical evidence. While an examination before separation revealed hearing loss, the Board assigns less probative weight to that report as it is inconsistent with all other audiograms of record. Moreover, during the period of the claim from the day following discharge to the present, none of the audiometric testing has revealed a hearing loss disability for VA purposes. In this case, the most probative evidence shows that the Veteran does not have a current hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385 during the course of the claim. Thus, the claim for service connection for hearing loss is denied. 2. Entitlement to service connection for a sinus disability other than allergic rhinitis Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current sinus disability other than allergic rhinitis that was incurred in or caused by service or caused or aggravated by the Veteran’s service-connected allergic rhinitis. Service treatment records show treatment for sinusitis in January 1997, September 1997, March 2001, June 2003, and October 2004, and a December 2004 treatment record listed “chronic sinusitis” under the Veteran’s “chronic illnesses.” A September 2007 pre-discharge VA examination report shows that the Veteran had a diagnosis of allergic rhinitis with sinus headaches, but he did not have recurrent sinus infections (sinusitis). Upon the Veteran’s retirement, he reported a history of sinusitis on an October 2007 report of medical history; however, his sinuses were found to be normal during his retirement medical examination. Post-service treatment records show that the Veteran was diagnosed with sinusitis and treated with antibiotics in February 2011. Thereafter, treatment records dated April 2011, May 2011, June 2011, August 2011, February 2012, and June 2012 list sinusitis on the Veteran’s chronic illness or chronic problem lists. The Veteran underwent a VA examination in May 2017, during which he reported a history of nasal itching/drainage, sneezing, stuffiness, scratching throat, itchy eyes, and an occasional episode of nosebleeds. He reported treatment with Zyrtec, flunisolide nasal spray, and olopatadine eye drops. The examiner diagnosed the Veteran with rhinitis. The Veteran underwent another VA examination in April 2019, during which he reported symptoms of congestion and daily treatment with Zyrtec and azelastine. He stated that a CT scan of his sinuses was normal, and he denied any long-term antibiotic treatment for sinusitis. The examiner diagnosed the Veteran with rhinitis and indicated that he did not have a diagnosis of sinusitis. In support of this, the examiner explained that the Veteran underwent a CT scan of his sinus cavities, which showed no sinus inflammatory findings. The examiner further explained that sinusitis occurring up to three times a year is considered normal, and in order to warrant a diagnosis of chronic sinusitis, there must be a persistent infection lasting more than six weeks despite antibiotic therapy or four or more recurrent episodes of sinusitis in one year despite antibiotic therapy. The Veteran underwent another VA examination in April 2020, during which he reported daily symptoms of nasal congestion, post-nasal drip, and phlegm and stated that he had diagnoses of allergic rhinitis, sinus headaches, and sinusitis. The examiner indicated that paranasal sinus x-rays revealed normal findings, but opined that the claimed condition was least as likely as not related to service. In support of this, the examiner explained that the Veteran was treated for sinusitis during service, and there was evidence of current, chronic, and continuous treatment and care. The Veteran underwent another VA examination in August 2020, during which he reported daily allergies. The Veteran stated that he thought he may have had a sinus infection about two years ago, but he denied any extensive or long-term treatment for a sinus condition. The examiner indicated that the Veteran had allergic rhinitis, and he did not have a current diagnosis of sinusitis or any other sinus condition. The examiner explained that a diagnosis of chronic sinusitis requires a persistent infection lasting six weeks or more with antibiotic therapy or recurrent episodes four or more times a year with antibiotic therapy. In December 2020, another VA examiner reviewed the evidence of record, to specifically include the post-service treatment records listing sinusitis on the Veteran’s chronic illness or chronic problem lists. The examiner indicated that the Veteran had several episodes of acute sinusitis during service, but he did not have chronic sinusitis. In support of this, the examiner explained that acute sinusitis is a common, temporary infection of the sinuses which is often associated with a cold, whereas chronic sinusitis is characterized by long-lasting sinus infections or more than three sinus infections a year. The examiner further explained that radiographs of the Veteran’s sinuses performed in 1997, 2003, and 2019 were normal. Moreover, the examiner indicated that despite post-service treatment records from 2011 and 2012 noting chronic sinusitis, there is no medical evidence to support a diagnosis of chronic sinusitis, as the Veteran was treated for one post-service sinus infection in February 2011. Accordingly, the examiner concluded that it was less likely than not that the Veteran had a current sinus disability that was related to service or caused or aggravated by his service-connected rhinitis. Although the April 2020 VA examiner indicated that the Veteran had sinusitis and opined that the claimed condition was related to service, the Board assigns less weight to that opinion, as the examiner’s rationale is not supported by the evidence of record. The examiner indicated that there was evidence of current, chronic, and continuous treatment and care; however, post-service treatment records show ongoing treatment for the Veteran’s already service-connected rhinitis, but only show treatment for sinusitis in 2011. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). The Board finds the opinion of the December 2020 VA examiner to be significantly more probative and persuasive, as it is based on a review of the evidence of record and is supported a with reasoned medical explanation that thoroughly addresses the Veteran’s post-service treatment records and all notations of sinusitis. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Although the Veteran is competent to report subjective sinus/allergy symptoms, the diagnosis and etiology of a sinus disability requires medical expertise to determine. See Jandreau, 492 F.3d at 1377. Thus, the opinion of the Veteran regarding the diagnosis or etiology of a current sinus disability is not competent medical evidence. In sum, the preponderance of the evidence is against a finding that the Veteran has a current sinus disability other than allergic rhinitis that was incurred in or caused by service or caused or aggravated by a service-connected disability. Accordingly, service connection for a sinus disability other than allergic rhinitis is denied. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. 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; see also 38 C.F.R. §§ 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). It is the intent of the Rating Schedule to recognize painful motion with joint or periarticular pathology as productive of disability. When a disability demonstrates actually painful, unstable, or malaligned joints due to healed injury, it is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 3. Entitlement to a higher rating for DDD of the cervical spine, currently rated as 20 percent disabling from August 16, 2011 to October 24, 2017, and 30 percent disabling thereafter Pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted where there is unfavorable ankylosis of the entire cervical spine. Id. Full range of motion of the cervical spine is to 45 degrees of flexion, 45 degrees of extension, 45 degrees of lateral flexion, and 80 degrees of rotation. 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Alternatively, intervertebral disc syndrome (IVDS) can be rated based on incapacitating episodes under the IVDS Formula or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Under the IVDS Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Upon review of the record, the Board finds that a rating of 30 percent is warranted throughout the remaining period on appeal. Range of motion testing performed during a January 2015 VA examination revealed flexion to 30 degrees with evidence of painful motion beginning at 20 degrees. After three repetitions, flexion was limited to 20 degrees, and the examiner estimated that the Veteran’s neck would exhibit an additional loss of 10 degrees during flare-ups and with pain on use. After resolving any doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected neck disability more nearly approximates forward flexion of the cervical spine to 15 degrees or less. Accordingly, a rating of 30 percent is granted from August 16, 2011 to October 24, 2017. See 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula. The Board finds that a rating in excess of 30 percent is not warranted at any time during the period under review. The Board has reviewed and considered the Veteran’s statements and testimony in support of his claim, including his reports of neck pain and stiffness. However, unfavorable ankylosis of the entire cervical spine has not been shown such that a higher rating would be warranted. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (regulations concerning functional loss are not applicable where a veteran is receiving the maximum schedular rating based on limitation of motion and a higher rating requires evidence of ankylosis). The Veteran underwent two VA examinations in August 2011 and additional examinations in January 2015 and October 2017. Each time, the examiners indicated that there was no evidence of ankylosis of the cervical spine. The Board notes that when the October 2017 VA examiner was asked about additional factors contributing to disability, he wrote “less movement than normal due to ankylosis, adhesions, etc.” However, in March 2019, the examiner clarified that his response was intended to include anything that could result in less movement than normal, not just ankylosis. He stated that in this case, there was no response provided in the portion of the examination report asking about ankylosis, which indicates that he found no evidence of ankylosis of the cervical spine. A review of the Veteran’s treatment records likewise does not show unfavorable ankylosis of the entire cervical spine. Accordingly, a rating in excess of 30 percent is not warranted at any point during the period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board has considered whether a higher rating is warranted under the IVDS formula. However, a review of the record reveals no evidence of incapacitating episodes of IVDS requiring prescribed bed rest and treatment by a physician having a total duration of at least four weeks, but less than six weeks, during a 12-month period at any time. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula. The Board notes that the February 7, 2021 revision to Schedule for Rating Disabilities revised Diagnostic Code 5242 and 5243 to indicate that degenerative disc disease was to be rated under Diagnostic Code 5242 and not Diagnostic Code 5243. 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). However, as evaluating the cervical spine disability under the IVDS formula would not result in a higher rating for reasons set forth above, the revision to the rating schedule does not impact this decision. The Board has also considered whether a separate rating is warranted for any associated neurological disorder. Although the Veteran has reported pain radiating to the shoulder, neurological examinations performed during the August 2011, January 2015, and October 2017 VA examinations revealed sensation grossly intact in both upper extremities, full upper extremity motor strength, and no reflex deficiencies. The examiners indicated that there was no evidence of upper extremity radiculopathy or any other neurologic abnormalities associated with the cervical spine. A review of the Veteran’s treatment records likewise does not show any neurologic abnormalities associated with the Veteran’s cervical spine. Accordingly, a separate rating for an associated neurological disability is not warranted. 4. Entitlement to an initial rating in excess of 10 percent for a right knee strain with degenerative joint disease Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 (flexion) and 5261 (extension). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Additionally, Diagnostic Code 5258 provides a rating of 20 percent for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In the January 2017 Joint Motion, the parties agreed that the Board erred in failing to discuss whether the Veteran is entitled to a higher rating of 20 percent under Diagnostic Code 5258. Upon review of record, the Board finds that an initial 20 percent rating is warranted under Diagnostic Code 5258. A September 2007 VA examination report shows that the Veteran had a partial medical meniscal tear for which he underwent arthroscopy resection in 1996. He reported intermittent pain, but denied any swelling or locking, and there was no evidence of effusion during the examination. A January 2008 VA treatment record noted the Veteran’s prior arthroscopy for a medial meniscus tear and indicated he exhibited mechanical symptoms, including some swelling and giving way about once a week. A January 2015 VA examination report indicates that the Veteran had a right knee meniscus tear with frequent episodes of locking, pain, and effusion. A March 2019 private treatment record likewise notes right knee effusion. Moreover, in the January 2017 Joint Motion, the parties agreed that the Veteran “had a prior meniscal tear, for which he underwent a meniscectomy,” and he has “demonstrated frequent episodes of pain, ‘locking,’ and effusion.” Accordingly, a rating of 20 percent under Diagnostic Code 5258 is granted. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the highest rating available under this diagnostic code. The Board finds that a higher or a separate rating is not warranted based on limitation of motion under Diagnostic Code 5260 and/or 5261. The Board has reviewed and considered the Veteran’s statements and testimony in support of his claim, including his reports of pain, stiffness, locking, and fatigability. However, even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, flexion to 45 degrees or less, or extension to 10 degrees or more, has not been shown for any distinct period of time such that a separate rating based on limitation of motion is warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Range of motion testing performed during VA examinations conducted in September 2007, August 2011, January 2015, October 2017, and April 2020 revealed, at worst, flexion to 100 degrees in October 2017. Extension was consistently to 0 degrees. The Board acknowledges that a March 2018 private treatment record notes flexion to 95 degrees and extension to 10 degrees. However, two months later, a May 2018 pre-operative evaluation for right knee surgery indicates that all extremities exhibited normal movement, and musculoskeletal range of motion was within normal limits. In August 2019, the Veteran reported that his right knee pain was doing better, and he elected not to undergo knee surgery. During the April 2020 VA examination, the right knee exhibited full range of motion with an estimated 0 to 120 degrees of motion with repeated use over time. As the Veteran’s right knee consistently exhibited full range of extension before and after the March 2018 treatment record, the Board finds no distinct period on appeal in which a separate rating is warranted based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Moreover, as the 20 percent rating assigned under Diagnostic Code 5258 contemplates symptoms of pain, the Veteran is not entitled to a separate rating based solely on painful motion. See 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Codes 5003, 2010, 5260, and 5261; see also Esteban, 6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). The Board acknowledges that when the October 2017 VA examiner was asked about additional factors contributing to disability, he wrote “less movement than normal due to ankylosis, adhesions, etc.” However, in March 2019, the examiner clarified that his response was intended to include anything that could result in less movement than normal, not just ankylosis. He stated that in this case, there was no response provided in the portion of the examination report asking about ankylosis, which indicates that he found no evidence of ankylosis of the knees. A review of the Veteran’s treatment records likewise does not show ankylosis of the right knee. The Board has also considered whether a separate rating is warranted for instability of the right knee. However, all of the VA examiners who evaluated the Veteran’s right knee indicated that there was no objective evidence of instability or recurrent subluxation, and anterior, posterior, medial, and lateral joint stability tests were normal. Moreover, treatment records do not show symptoms more severe than those noted during the VA examinations. Accordingly, a separate rating for right knee instability is not warranted under Diagnostic Code 5257 at any time on or after August 29, 2011. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020); see also 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (revising the criteria for Diagnostic Code 5257 effective February 7, 2021). 5. Entitlement to rating in excess of 10 percent a left knee strain from August 29, 2011 to the present Upon review of record, the Board finds that a rating of 20 percent is warranted under Diagnostic Code 5258 from August 29, 2011 to the present. The Veteran underwent a VA examination in August 2011, during which he reported symptoms of left knee pain, swelling, and locking. A January 2015 VA examination report indicates that the Veteran had a left knee meniscal tear with frequent episodes of locking, pain, and effusion. A September 2017 MRI of the left knee revealed an oblique tear through the posterior horn of the medial meniscus and joint effusion and synovitis. Based on the foregoing, the Board finds that the Veteran’s left knee disability more nearly approximates a semilunar cartilage condition with frequent episodes of locking, pain, and effusion. Accordingly, a rating of 20 percent is granted under Diagnostic Code 5258. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the highest rating available under this diagnostic code. The Board finds that a higher or a separate rating is not warranted based on limitation of motion under Diagnostic Code 5260 and/or 5261. The Board has reviewed and considered the Veteran’s statements and testimony in support of his claim, including his reports of pain, stiffness, locking, and fatigability. However, even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, flexion to 45 degrees or less or extension to 10 degrees or more has not been shown for any distinct period of time such that a separate rating based on limitation of motion is warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; Thompson, 815 F.3d 781 at 786. Range of motion testing performed during VA examinations conducted in September 2007, August 2011, January 2015, October 2017, and April 2020 revealed, at worst, flexion to 105 degrees in October 201. Extension was consistently to 0 degrees. The Board acknowledges that a March 2018 private treatment record notes flexion to 95 degrees and extension to 10 degrees. However, as noted above, a May 2018 private treatment record indicates that all extremities exhibited normal movement, and musculoskeletal range of motion was within normal limits. During the April 2020 VA examination, the left knee exhibited full range of motion with an estimated 0 to 120 degrees of motion with repeated use over time. As the Veteran’s left knee consistently exhibited full range of extension before and after the March 2018 treatment record, the Board finds no distinct period on appeal in which a separate rating is warranted based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Moreover, as the 20 percent rating assigned under Diagnostic Code 5258 contemplates symptoms of pain, the Veteran is not entitled to a separate rating based solely on painful motion. See 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Codes 5003, 2010, 5260, and 5261; see also Esteban, 6 Vet. App. at 261. The Board notes that when the October 2017 VA examiner was asked about additional factors contributing to disability, he wrote “less movement than normal due to ankylosis, adhesions, etc.” However, in March 2019, the examiner clarified that his response was intended to include anything that could result in less movement than normal, not just ankylosis. He stated that in this case, there was no response provided in the portion of the examination report asking about ankylosis, which indicates that he found no evidence of ankylosis of the knees. A review of the Veteran’s treatment records likewise does not show ankylosis of the left knee. The Board has also considered whether a separate rating is warranted for instability of the left knee. However, all of the VA examiners who evaluated the Veteran’s left knee indicated that there was no objective evidence of instability or recurrent subluxation, and anterior, posterior, medial, and lateral joint stability tests were normal. Moreover, treatment records do not show symptoms more severe than those noted during the VA examinations. Accordingly, a separate rating for left knee instability is not warranted at any time on or after August 29, 2011. See 38 C.F.R. § 4.71a, Diagnostic Code 5257; see also 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (revising the criteria for Diagnostic Code 5257 effective February 7, 2021). 6. Entitlement to a rating in excess of 10 percent for left elbow lateral epicondylitis from August 29, 2011, to the present The Veteran’s left elbow epicondylitis has been assigned a 10 percent rating based on painful motion. See 38 C.F.R. § 4.59. The Rating Schedule distinguishes between the major/dominant extremity and the minor/non-dominant extremity for rating purposes. 38 C.F.R. § 4.69. In this case, the record shows that the Veteran is right-handed. Thus, his service-connected left elbow disability affects his minor extremity. Limitation of motion of the elbow is evaluated under Diagnostic Codes 5206 (flexion), 5207 (extension), and 5213 (supination and pronation). Diagnostic Code 5206 provides that forearm flexion to 100 degrees warrants a 10 percent rating; forearm flexion to 90 degrees warrants a 20 percent rating; forearm flexion to 70 degrees warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity; forearm flexion to 55 degrees warrants a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity; and forearm flexion to 45 degrees warrants a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Full forearm flexion is to 145 degrees. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5207 provides that forearm extension from 45 to 60 degrees warrants a 10 percent rating; forearm extension to 75 degrees warrants a 20 percent rating; forearm extension to 90 degrees warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity; forearm extension to 100 degrees warrants a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity; and forearm extension to 110 degrees warrants a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity. 38 C.F.R. § 4.71a. Full forearm extension is to zero degrees. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5213 provides that limitation of supination to 30 degrees or less warrants a 10 percent rating. Pronation lost beyond the last quarter of the arc, where the hand does not approach full pronation, warrants a 20 percent rating. Pronation lost beyond the middle of the arc warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Moderate pronation or the hand fixed near the middle of the arc warrants a 20 percent rating. The hand fixed in full pronation warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. The hand fixed in supination or hyperpronation warrants a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71a, Plate I. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s left elbow disability at any time on or after August 29, 2011. The Board has reviewed and considered the Veteran’s statements and testimony in support of his claim, including his reports of daily left elbow pain, which affects his ability to lift, carry, and reach. However, even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, the record does not show forearm flexion to 100 degrees, forearm extension from 45 to 60 degrees, supination to 30 degrees or less, or pronation lost beyond the last quarter of the arc such that a higher or separate rating is warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207, 5213; Thompson, 815 F.3d 781 at 786. The Veteran underwent VA examinations in August 2011, May 2017, April 2019, and April 2020, and his treatment records have been reviewed. The record shows that at worst, flexion was to 110 degrees, pronation was to 70 degrees, and supination was to 60 degrees in August 2011, and extension was to 5 degrees in May 2018. Accordingly, a higher or separate is not warranted for the Veteran’s left elbow disability at any time on or after August 29, 2011. 7. Entitlement to an initial compensable rating for GERD Under Diagnostic Code 7346, a 10 percent rating is assigned for hiatal hernia with two or more symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is assigned for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned for hiatal hernia with symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Id. Upon review of the record, the Board finds that an initial 10 percent rating for GERD is warranted. During the September 2007 pre-discharge VA examination, the Veteran reported symptoms of sour taste in his mouth, eructations (belching), and abdominal pain. He denied any nausea, vomiting, dysphagia, changes in appetite, or weight loss. Treatment records show that in January 2011, the Veteran reported occasional nausea. In March 2011, the Veteran told his treatment provider that he unintentionally lost 20 pounds in five months with increased nausea and reflux. During an August 2011 VA examination, the Veteran reported that his GERD was manifested by symptoms of pain. During a May 2017 VA examination, the Veteran reported symptoms of pyrosis, reflux, and nausea. Based on the foregoing, the Board finds that the Veteran’s overall disability picture more nearly approximates two or more symptoms for the 30 percent evaluation of less severity. The Board finds that a rating in excess of 10 percent is not warranted at any time, as the record does not show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, nor does the record show vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Although the Veteran reported nausea in February 2011 and March 2011 and a 20-pound weight loss in five months, the Veteran’s treatment provider indicated that he appeared well nourished at the time, and subsequent treatment records show that the Veteran was 13 pounds heavier the following month and 19 pounds heavier by May 2011. Moreover, the Veteran otherwise denied symptoms of nausea, vomiting, decreased appetite, weight changes, hematemesis, and melena throughout the period on appeal, and he even denied symptoms of reflux at times. Additionally, the Veteran’s treatment providers consistently indicated that the Veteran appeared well nourished. Based on the foregoing, the Board finds that the evidence of record does not show material weight loss due to GERD for any distinct period of time or symptoms productive of considerable or severe impairment of health. Accordingly, a rating in excess of 10 percent for GERD is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.