Citation Nr: 21022288 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-16 962 DATE: April 15, 2021 ORDER New and material evidence not having been received, the claim of entitlement to service connection for a right knee disability is not reopened. New and material evidence not having been received, the claim of entitlement to service connection for a back disability is not reopened. New and material evidence not having been received, the claim of entitlement to service connection for bilateral hearing loss with loss of balance is not reopened. Entitlement to service connection for hypertension is denied. Entitlement to a rating in excess of 20 percent for left knee internal derangement, status post meniscectomy, based on recurrent subluxation or lateral instability is denied. Entitlement to a rating higher than 10 percent for left knee arthritis with limitation of motion is denied. Entitlement to a separate rating of 20 percent for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the left knee joint, effective from October 5, 2020, but no earlier, is granted. Entitlement to a higher initial rating of 10 percent, but no greater, for a residual scar associated with the left knee disability is granted. FINDINGS OF FACT 1. In a prior August 2007 rating decision, the Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) considered and denied the Veteran’s claims of entitlement to service connection for a right knee condition and back disability. He did not perfect a timely appeal of that earlier decision, so it became a final and binding determination based on the evidence then of record. 2. He attempted to reopen these claims of entitlement to service connection for a right knee condition and back disability, and his petition most recently was denied in an August 2010 rating decision that also is final and binding based on the evidence then of record. 3. Evidence received since that August 2010 rating decision does not relate to an unestablished fact needed to substantiate these claims for service connection for a right knee disability and back disability and/or is cumulative or redundant of evidence already of record and previously considered. 4. In a May 2002 rating decision, the RO (AOJ) denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss with loss of balance. He did not perfect a timely appeal of that rating decision, so it became a final and binding determination based on the evidence then of record. 5. The evidence received since that May 2002 rating decision does not relate to an unestablished fact necessary to substantiate this claim for service connection for bilateral hearing loss with loss of balance and/or is cumulative or redundant of evidence already of record and previously considered. 6. The Veteran’s hypertension did not manifest in service or within a year of his discharge, and there is no probative evidence that it is attributable to his service. 7. His left knee disability has not manifested in severe recurrent subluxation or lateral instability. 8. His left knee disability has been not manifested by extension limited to 15 degrees or more or by flexion limited to 30 degrees or less. 9. Beginning on October 5, 2020, the Veteran is shown to experience frequent episodes of locking, pain, and effusion into his left knee joint. 10. He has one residual scar associated with his left knee disability that is painful, whereas the others are asymptomatic. CONCLUSIONS OF LAW 1. As new and material evidence has not been received, the criteria have not been met to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 2. As new and material evidence has not been received, the criteria have not been met to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 3. As new and material evidence has not been received, the criteria have not been met to reopen the claim of entitlement to service connection for bilateral hearing loss with loss of balance. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a rating in excess of 20 percent for left knee internal derangement, status post meniscectomy, based on recurrent subluxation or lateral instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 6. The criteria for a rating in excess of 10 percent for left knee arthritis with limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261.   7. Beginning on October 5, 2020, the criteria are met for a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the left knee joint. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258. 8. The criteria are met for a higher initial rating of 10 percent, but no greater, for the residual scar associated with the left knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1979. These claims come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the claims back to the RO (AOJ) for further development and consideration. The Board also remanded an additional claim for a total disability rating based on individual unemployability (TDIU). However, a November 2020 rating decision since issued, on remand, granted the claim for a TDIU. New and Material Evidence Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.   New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the existing evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed – unless inherently incredible or beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1994). Also, the “starting point” for determining whether there is new and material evidence is the last final and binding denial of the claim – irrespective of whether a denial on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. By way of relevant background, the AOJ originally denied service connection for a right knee condition in a March 2004 rating decision. In that initial decision, the AOJ found that this condition was neither incurred in nor caused by the Veteran’s service. A subsequent August 2007 rating decision again denied the Veteran’s claim based on the lack of a “nexus” between the claimed right knee condition and his service. The AOJ found that his service treatment records (STRs) were entirely unremarkable for any right knee condition and his post-service treatment records showed he had undergone right knee surgery some 23 years after conclusion of his military service. He was notified of that denial and of his appellate rights, but he did not appeal the August 2007 rating decision or submit new and material evidence within one year of receiving notification of the denial; thus, that rating decision became final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The Veteran later attempted to reopen his claim of entitlement to service connection for a right knee condition, but his petition was denied in an August 2010 rating decision. In that decision, the AOJ confirmed and continued the previous denial of the claim because the evidence did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Again, the Veteran did not appeal the denial of his claim or submit new and material evidence within one year of receiving notification of the denial. Thus, that decision also became final and binding based on the evidence then of record. Id. The evidence received since that August 2010 rating decision includes medical treatment records from the VA Medical Center (VAMC) and the Veteran’s records from the Social Security Administration (SSA), which includes private treatment records. This evidence is new as it was not of record at the time of the August 2010 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of establishing the claim. The new medical treatment records do not contain any evidence of a link between the right knee disability and the Veteran’s service. Although, as explained, the evidentiary standard according to Shade is “low”, reopening a claim that does not necessitate further assistance or development prior to its denial serves no meaningful purpose. Moreover, if, as here, the evidence is new, but not also material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). Consequently, the Board finds that new and material evidence has not been submitted or otherwise obtained to warrant reopening this claim. The new evidence does not tend to demonstrate that the Veteran had a chronic (as opposed to acute and transitory) right knee disability in service, or within a year of his discharge (i.e., during the presumptive period immediately following conclusion of his service), or that the current disability is otherwise related or attributable to his service. Therefore, his petition to reopen this claim must be denied. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. In the rating decision issued in August 2007, the AOJ also denied the Veteran’s claim of entitlement to service connection for a back disability, disputing the notion that it is secondary to his service-connected left knee disability. Review of this rating decision indicates that the AOJ denied his claim based on the lack of a “nexus” between this claimed back disability and his service-connected left knee disability. He was notified of this denial and of his appellate rights, but he did not appeal the August 2007 decision or submit new and material evidence within one year of receiving notification of the denial; thus, this rating decision became final and binding on him based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The Veteran subsequently attempted to reopen his claim for service connection for a back disability as secondary to his service-connected left knee disability, but his petition was denied in an August 2010 rating decision. In that decision, the AOJ confirmed and continued the previous denial of the claim on the basis that the evidence then of record did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Again, he did not appeal the denial of his claim or submit new and material evidence within one year of the denial, so this subsequent decision also became final and binding on him based on the evidence then of record. The additional evidence received since that August 2010 rating decision includes the medical treatment records from the VAMC and the Veteran’s SSA records, which includes private treatment records. This evidence, while new, is not material as it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of establishing the claim. The private medical records show that, in March 1998, the Veteran reported he began having low back pain following a fall 4 years earlier, so in 1994 or thereabouts. The new evidence does not contain any evidence tending to show that it is as likely as not that he has a back disability owing to his military service – meaning that was directly incurred during his service, or that manifested to a compensable degree within a year of his discharge from service to, in turn, warrant presuming it was incurred during his service (if a disability such as arthritis), or that was otherwise caused or aggravated by his service, or that was proximately caused or is aggravated by a service-connected disability – including especially by his left knee disability. The Board has carefully and specifically considered the implications of Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claim or would at least trigger VA’s duty to assist by providing a medical opinion. The probative evidence does not tend to indicate the Veteran’s back disability is etiologically related to his service or secondary to a service-connected disability, again, including especially his left knee disability. Thus, the Board finds that new and material evidence has not been submitted to allow reopening of this claim. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss with loss of balance. In a prior May 2002 decision that the Veteran did not appeal, the RO (AOJ) denied his claim for service connection for bilateral hearing loss with loss of balance because this condition was neither incurred in nor caused by his service. At the time of that prior denial, the evidence of record included his STRs that did not indicate he had hearing loss or balance issues. The claims file also included a December 1999 police report of a motor vehicle accident (MVA) and a January 2001 VA treatment record showing that, after service, he was involved in a MVA during the preceding year and had bloody otorrhea as result. He complained of an aural pressure sensation and hearing loss with mild disequilibrium and vertigo since that MVA. A November 2001 VA ENT (Ear, Nose and Throat) note shows he was seen for evaluation of dysequilibrium; the impression was cervical and central nervous system etiology and the diagnosis was chronic dysequilibrium due to head and neck trauma. There was no suggestion the head and neck trauma had occurred during his service or because of any service-connected disability. There has been no new evidence added to the record since that last final and binding denial of this claim tending to show that it is as likely as not the Veteran has bilateral hearing loss with loss of balance (dysequilibrium) owing to his military service – meaning that was directly incurred during his service, or that manifested to a compensable degree within a year of his discharge from service to, in turn, warrant presuming it was incurred during his service, or that was otherwise caused or aggravated by his service or a service-connected disability. Thus, despite the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), new and material evidence has not been received, so this claim is not reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain “chronic” diseases, including hypertension, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year of the Veteran’s discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 4. Entitlement to service connection for hypertension. The Board concludes that, while the Veteran has a current diagnosis of hypertension, so no disputing he has this claimed disease, the preponderance of the evidence weighs against finding that his hypertension began during his service, within a year of his discharge, or is otherwise related or attributable to his service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The STRs contain no complaint, finding, history, treatment, or diagnosis of hypertension in service. Therefore, no hypertension was affirmatively shown to have been present during the Veteran’s service. The same is true for during the one-year presumptive period following conclusion of the Veteran’s service. After his separation from service, the earliest post-service evidence of record showing a diagnosis of hypertension is dated in June 2000, which is approximately 21 years after his separation from service. The June 2000 VA primary care note listed an assessment of hypertension with a treatment plan consisting of weight reduction and serial blood pressure readings. Subsequent VA treatment records also reflect that hypertension was diagnosed at other times in year 2000 and treated with medications. The first thing worth pointing out is that the passage of so many years between the Veteran’s discharge from service and initial indication of this disease is a factor tending to weigh against his claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Also, significantly, he does not contend that he experienced any symptoms related to this disease during his service or continuously during the many intervening years prior to the initial diagnosis. In other words, there is no contention of this disease having been “noted” during his service or of continuity of symptomatology after his service up to initial diagnosis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, there is no probative (competent and credible) opinion of record as to whether the Veteran’s current hypertension is related to his active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). While the Veteran is competent to report having experienced symptoms that may be associated with hypertension and he believes his hypertension is related to his service, he is not competent to determine whether certain symptoms were manifestations of hypertension or to provide a nexus opinion in this case. Hypertension is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or etiology of such condition therefore is medical in nature and not capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). This issue is medically complex, not merely simple, as it requires knowledge of the pathologic process in the vascular system within the body and involves interpretation of complicated clinical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, to reiterate, after separation from service, there is no showing of continuity of symptomatology. In fact, an October 1979 VA examination report noted a blood pressure reading of 130/80, which does not meet the definition of hypertension for VA compensation purposes. According to the pertinent VA regulation, hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, DC 7101, Note (1). This Note (1) in this DC also explains that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. This is because hypertension is persistently elevated blood pressure, as opposed to an elevated reading in isolation or just occasionally. Here, the initial diagnosis of hypertension was established in June 2000, more than 21 years after conclusion of the Veteran’s service, so well beyond the one-year presumptive period after his discharge from service in 1979. As the evidence fails to show that his hypertension manifested during his service or to a compensable degree within the year after his service, service connection on a presumptive basis as a chronic disease according to 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.307, 3.309(a) is not established. Accordingly, the Board concludes that the weight of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension. And, as the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Increased Ratings Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. If there have been occasions when the service-connected disability at issue has been more severe than at others, VA must compensate the Veteran for this variance, irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). That said, while his entire history is reviewed when making a disability determination, where service connection already has been established an increase in the disability rating is at issue, it is the present level of disability that is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 5. Entitlement to a rating greater than 20 percent for left knee internal derangement, status post meniscectomy. 6. Entitlement to a separate rating of 10 percent for left knee arthritis with limitation of motion. The Veteran’s service-connected left knee internal derangement, status post meniscectomy, has been evaluated as 20-percent disabling under DC 5257, which contemplates “other” knee impairment – including recurrent subluxation and lateral instability. During the pendency of this appeal, in a November 2020 rating decision, a separate 10 percent rating for left knee arthritis with limitation of motion was granted effective December 27, 2013. Because, however, the RO did not assign the maximum disability ratings possible, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). VA’s General Counsel has held that, when a knee disorder is rated under 38 C.F.R. § 4.71a, DC 5257, and an appellant also has limitation of knee motion which at least meets the criteria for a 0 percent (noncompensable) evaluation under 38 C.F.R. § 4.71a, DCs 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. VA’s General Counsel also held that, if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). However, if a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, DC 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98 (August 14, 1998). It also is possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee. VAOPGCPREC 9-2004 (September 17, 2004). As well, compensating a claimant under the meniscal codes, DCs 5257 and 5258 (dislocated cartilage with locking pain and effusion), also does not constitute pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Lyles, the Court held that the evaluation of a knee disability under DCs 5257 or 5260/61 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa. The Veteran was afforded a VA examination in June 2014. The Veteran reported experiencing functional loss of his left knee pain impacting his activities of daily living. He walked with a rolling walker. The VA examiner confirmed the Veteran had arthritis in his left knee according to the results of an X-ray. But, even accepting that and the consequent arthritic pain, the left knee range of motion (ROM) was from 10 to 80 degrees (extension to flexion), albeit with pain on motion. Repetitive use limited his functional ability due to less movement than normal, pain on movement, swelling, and deformity. The VA examiner noted that the Veteran had a meniscus (semilunar cartilage) condition that manifested in residual symptoms including pain and arthritis. However, the VA examiner did not indicate the Veteran had frequent episodes of joint locking, pain, and effusion into the joint. The examiner indicated that the Veteran was morbidly obese which prevented accurate completion of knee examination for most tests. However, it was noted the Veteran did not have recurrent patellar subluxation/dislocation. During a February 2019 VA examination, the Veteran reported dull ache, stiffness, and clicking. He stated, “I can’t walk more than 15 feet without my walker.” During the objective clinical portion of the examination, the ROM of his left knee was from was from 0 to 90 degrees. The Veteran reported there was no additional loss of ROM after repetitive use over time or during a flare up but increased pain and lack of endurance. He continued have function loss such as decreased ROM and intermittent pain. The examiner indicated the Veteran did not have ankylosis or joint instability, there was no patellar subluxation/dislocation. The examiner founds that the Veteran’s left knee disability interfered with standing, walking, running, climbing, kneeling, and squatting and he was unable to perform jobs requiring strenuous physical activity but was able to perform sedentary jobs. A more recent October 5, 2020 VA examination show the Veteran’s report of pain in the left knee and left hip and the functional loss of difficulty with bending down, walking, sitting, or standing for more than 15 minutes. The examination report reflects that the Veteran was unable to test the ROM due to significant pain at the time of examination and imbalance. Pain was noted on rest/non-movement. The examiner indicated the Veteran did not have ankylosis, recurrent subluxation or lateral instability. Joint stability testing was performed and there was no joint instability. Rating under DC 5257 The 20 percent rating under DC 5257 has been in effect since January 19, 1979, so, for more than 20 years. A disability that has been continuously rated at or above any evaluation of disability for 20 years or more will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b). A 20 percent rating under DC 5257 contemplates moderate recurrent subluxation or lateral instability. A 30 percent rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The medical evidence of record throughout the rating period on appeal does not describe any instability beyond the moderate level. The June 2014 VA examiner noted the Veteran did not have recurrent patellar subluxation/dislocation. The February 2019 VA examiner indicated the Veteran did not have joint instability or patellar subluxation/dislocation. The examiner found no signs of left knee subluxation or instability, and the Veteran does not appear to have described any history of instability at the time of the examination. See English v. Wilkie, 30 Vet. App. 347 (2018). The October 2020 VA examiner also found no recurrent subluxation or instability of the left knee. Accordingly, the evidence is against the grant of a rating greater than 20 percent under DC 5257.   Rating Under DC 5260 and/or 5261 Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Under DC 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 concerns limited extension, so motion in the other (opposite) direction. Under DC 5261, extension limited to five degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Based on the evidence, at no point during the rating period has the Veteran been shown to meet the criteria for a rating higher than 10 percent under DC 5261 or a compensable rating (meaning a rating higher than 0 percent) under DC 5260. During the June 2014 VA examination, the left knee ROM was from was from 10 to 80 degrees (extension to flexion). The February 2019 VA examiner noted the left knee ROM was from was from 0 to 90 degrees. The Veteran reported there was no additional loss of ROM after repetitive use over time or during a flare up, despite increased pain and lack of endurance. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Although, during the October 2020 VA examination, the ROM could not be evaluated owing to his pain, the Veteran’s reports of limited functioning or the examination findings do not sufficiently demonstrate that the left knee disability would limit extension to more than 10 degrees or flexion to less than 45 degrees. There certainly is not suggestion of extension limited to 15 degrees or more or flexion limited to 30 degrees or less. According to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011), the Court held that, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (§ 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Thus, the current 10 percent rating the Veteran already has adequately compensates him for the extent of his limited motion – on extension. His flexion is not limited to a compensable extent. Rating under DC 5258 or 5259 Diagnostic Code 5258 provides a 20 percent disability rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for symptomatic residuals of removal of semilunar cartilage. This is the only rating available under this DC. The record shows the Veteran previously underwent left knee meniscectomy in October 1978, during which at least part of his meniscus was removed. However, his residuals of the left knee meniscectomy manifested in pain and limited motion, which the Board has rated as 10-percent disabling under DC 5261. Therefore, a separate 10 percent rating under DC 5259 is not warranted. However, on October 5, 2020, the VA examination demonstrated that the Veteran had frequent episodes of joint locking and pain, as well as frequent episodes of joint effusion that were moderate in severity. These findings most closely approximate the criteria for a 20 percent rating under DC 5258. Accordingly, the evidence supports a finding that a separate rating under DC 5258 has been warranted since October 5, 2020. Because 20 percent is the maximum rating allowed under DC 5258, no higher rating may be awarded under this code. The Board additionally has considered whether the Veteran possibly could receive a separate evaluation or additional compensation under other diagnostic codes. However, because there is no evidence of ankylosis (DC 5256), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263), consideration of a higher evaluation under these other DCs is not warranted. 7. Entitlement to a compensable initial rating for a residual scar associated with the left knee disability. The residual left knee scar has been evaluated initially as noncompensable under 38 C.F.R.§ 4.118, DC 7805. During the pendency of this appeal, the principal medical evidence material to this claim is contained in the October 2020 VA examination report. The October 2020 VA examination report reveals the Veteran has one painful scar from his left knee meniscectomy with mild pain and burning pain, measuring 13.0 x 1.0 cm. He also had three arthroscopic left knee scars that measure 1.0 x 0.2 cm each.   The examiner noted that the approximate total area for the left lower extremity scars, which were without underlying tissue damage, was 13.6 square centimeters. The examiner found no functional disabilities or restriction due to the left knee scars. The June 2014 and February 2019 VA examiners noted that the Veteran’s scar was not painful or unstable and did not have a total area equal to or greater than 39 square centimeters (6 square inches). But these examinations are inadequate for rating purposes because the examiners did not report the number or condition of the scars on the Veteran’s left knee. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Initially, as concerning the rating for the left knee scar, the Board points out that Codes 7800 and 7802 do not apply. Code 7800 applies to scars of the head, face, and neck, so not the knee, and Code 7802 provides for a 10 percent (maximum) rating for superficial and nonlinear scars with an area of 144 square inches (929 square cm) or greater, which the Veteran does not have to this required extent. The rating criteria governing scars were revised effective August 13, 2018. Claims, such as this on at hand, which were pending prior to August 13, 2018 must be considered under both the old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. However, DCs 7804 and 7805 were not changed by the August 13, 2018, amendments, certainly not substantively. Diagnostic Code 7804 provides a noncompensable rating for superficial unstable scars. Diagnostic Code 7804 further provides that one or two scars that are unstable or painful are rated as 10 -percent disabling. Three or more scars that are unstable or painful are rated as 20 -percent disabling. Five or more scars that are unstable or painful are rated as 30 -percent disabling. Note (1) to Diagnostic Code 7804 explains that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. Note (2) explains that 10 percent may be added to the evaluation if one or more scars are both unstable and painful. Under Code 7805, any disabling effect(s) not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118, Code 7805. Resolving all reasonable doubt in his favor, the Board finds that a 10 percent rating, though no greater, is warranted for the Veteran’s left knee scar under Diagnostic Code 7804, throughout the period under consideration, because he has one painful scar from his left knee meniscectomy. He is competent to state whether his scar is painful, and this has been objectively confirmed by at least one VA examiner. However, the VA examiner also found that the Veteran’s scars were not unstable, meaning do not involve frequent loss of covering of the skin over the scars. As well, no other symptoms or disabling effects related to the scars have been reported or shown (DC 7805). For these reasons and bases, a higher 10 percent rating, but no greater rating, is warranted since the preponderance of the evidence is against any higher rating, not instead supportive of any greater rating or even in relative balance (equipoise). See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.