Citation Nr: 21031573
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 09-29 610
DATE: May 24, 2021

ORDER

Restoration of service connection for bilateral hearing loss is denied.

An initial compensable rating for bilateral hearing loss from November 28, 2007 to July 1, 2013, is denied.

A rating in excess of 10 percent for left knee degenerative joint disease (DJD) for the period prior to April 30, 2018, is denied.

A rating in excess of 10 percent for right knee DJD for the period prior to February 28, 2011, is denied.

A rating in excess of 30 percent for right total knee arthroplasty (TKA) for the period from April 1, 2012 to June 19, 2018, is denied.

A 60 percent rating, but no higher, for a right TKA beginning June 19, 2018, is granted.

A 60 percent rating, but no higher, for a left TKA beginning June 1, 2019, is granted.

A rating in excess of 10 percent prior to October 14, 2020, and in excess of 50 percent thereafter, for bilateral pes planus, is denied.

A 10 percent rating, but no higher, for right elbow epicondylitis and spur is granted.

A rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD) is denied.

REMANDED

Entitlement to service connection for a low back disorder, to include as secondary to the service-connected knee disabilities, is remanded.

Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected knee disabilities, is remanded.

Entitlement to service connection for a right hip disorder, to include as secondary to the service-connected knee disabilities, is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The grant of service connection for bilateral hearing loss in a September 2008 rating decision was clearly and unmistakably erroneous.

2. As the grant service connection was clear and unmistakably erroneous, the Veteran is not entitled to an initial increased rating for bilateral hearing loss from November 28, 2007 to July 1, 2013, as a matter of law.

3. Prior to April 30, 2018, the Veteran's left knee DJD was manifested by flexion limited to no more than 120 degrees and extension limited to no more than zero degrees, and dislocation of the semilunar cartilage without frequent episodes of effusion, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum.

4. Prior to February 28, 2011, the Veteran's right knee DJD was manifested by flexion limited to no more than 140 degrees and extension limited to no more than zero degrees, and dislocation of the semilunar cartilage without frequent episodes of locking, pain, and effusion, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum.

5. From April 1, 2012, to June 19, 2018, the Veteran's right TKA was manifested by pain at rest, pain with motion, feelings of instability, pain interfering with sleep, flexion limited to 110 degrees at worst and full extension, weakness, recurrent effusion, locking, and intermediate degrees of residual weakness, pain, or limitation.

6. Beginning June 19, 2018, the Veteran's right TKA was manifested by pain at rest, pain with motion, worsened pain with weight-bearing, feelings of instability, pain with cold weather, pain interfering with sleep, flexion limited to 85 degrees at worst and full extension, weakness, recurrent effusion, locking, instability, and residuals consisting of severe painful motion or weakness.

7. Beginning June 1, 2019, the Veteran's left TKA was manifested by pain at rest, pain with motion, worsened pain with weight-bearing, feelings of instability, pain with cold weather, pain interfering with sleep, flexion limited to 90 degrees at worst and full extension, weakness, recurrent effusion, locking, instability, and residuals consisting of severe painful motion or weakness.

8. Prior to October 14, 2020, the Veteran's bilateral pes planus was shown to be manifested by no more than moderate disability with pain, pain on use and pain accentuated by use, without objective evidence of marked deformity, characteristic callosities, or an indication of swelling on use.

9. Since October 14, 2020 the Veteran's bilateral pes planus was shown to be manifested by no more than pronounced disability, without loss of use of both feet.

10. For the entire appeal period, the Veteran's right elbow epicondylitis and spur manifested by intermittent painful motion, with flexion limited to 120 degrees at worst, with full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

11. The Veteran's GERD manifested by intermittent dysphagia, reflux, pyrosis, without being productive of considerable impairment of his health.

CONCLUSIONS OF LAW

1. Service connection for bilateral hearing loss was properly severed, and the criteria for restoration of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5109A (2020); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.385 (2020).

2. The criteria for an initial compensable rating for bilateral hearing loss from November 28, 2007 to July 1, 2013, are not met. 38 U.S.C. §§ 501, 1155; 38 C.F.R. §3.400(o).

3. The criteria for a rating in excess of 10 percent for left knee DJD for the period prior to April 30, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260 (as in effect prior to February 7, 2021).

4. The criteria for a rating in excess of 10 percent for right knee DJD for the period prior to February 28, 2011 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260 (as in effect prior to February 7, 2021).

5. The criteria for a rating in excess of 30 percent for right TKA for the period from April 1, 2012, to June 19, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5055.

6. The criteria for a 60 percent rating, but no higher, for a right TKA beginning June 19, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5055.

7. The criteria for a 60 percent rating, but no higher, for a left TKA beginning June 1, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5055.

8. The criteria for a rating in excess of 10 percent prior to October 14, 2020, and in excess of 50 percent thereafter, for bilateral pes planus, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5276.

9. The criteria for a 10 percent rating, but no higher, for right elbow epicondylitis and spur are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5206.

10. The criteria for a rating in excess of 10 percent for hiatal hernia with GERD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, DC 7307.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1969 to October 1971, and from July 1974 to December 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008, March 2013, and July 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record. In August 2014 and January 2019, the Board remanded the case for additional development and it now returns for further appellate review.

Additional evidence has been associated with the record since the most recent January 2020 statement of the case and supplemental statement of the case. However, the Veteran. Through his representative, waived initial review of such evidence by the agency of original jurisdiction (AOJ) in an April 2021 correspondence. Therefore, the Board may proceed with review of the evidence in the first instance.

Severance of Service Connection

1. Propriety of the March 2013 severance of service connection for bilateral hearing loss.

The Veteran contends that the March 2013 severance of service connection was improper. He contends the severance is erroneous as he currently has and is treated for bilateral hearing loss, and he had hearing loss for the entire pendency of the appeal; and thus, restoration of service connection is warranted. However, after a review of the record, the Board finds that the grant of service connection was based on incorrect facts, and severance of service connection was proper.

In this regard, and as will be explained, the Veteran does indeed have a current diagnosis of bilateral hearing loss for VA purposes, and he submitted an application for such in February 2020. The AOJ did not process the application as the claim for restoration was already on appeal. In order to preserve his effective date, the AOJ should process the claim for service connection for bilateral hearing loss, as restoration of service connection is denied herein based on the timeline of the Veteran's diagnosis.

Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection.

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at the claimant's latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d).

The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for bilateral hearing loss in a September 2008 rating decision. In a September 2012 rating decision, the RO proposed to sever service connection. The RO stated that the decision to grant service connection for bilateral hearing loss was clearly and unmistakably erroneous because misstated the evidence and found the Veteran had a diagnosis of hearing loss for VA purposes under 38 C.F.R. § 3.385, when in fact he did not.

In the March 2013 rating decision, the RO severed service connection for bilateral hearing loss. The RO reiterated the September 2012 rating decision that had proposed to sever service connection, and concluded that severance was proper.

The RO followed the proper due process steps for severing service connection, except it did not assign the correct effective date. The RO issued the proposed rating in September 2012, and the Veteran was notified at his latest address of record of the contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in an October 2012  notice letter.

The RO issued the March 2013 rating decision, which severed service connection prospectively effective June 1, 2013. The resulting period for which the Veteran was in receipt of service connection began on November 28, 2007, and ended June 1, 2013, a period of less than ten years. 38 C.F.R. § 3.957. 

However, the RO did not assign a correct effective date for the severance of service connection. Notice of the rating decision and appeal rights was sent to the Veteran in April 2013. The June 1, 2013, date was not greater than the last day of the month in which a 60-day period from the date of the April 2013 notice expired. Nonetheless, the Board notes that such an error does not render the decision void ab initio, whereas here, the severance was otherwise proper, and the Veteran exercised he due process rights to submit evidence showing the severance was not proper. In this regard, VAOPGCPREC 31-97, considered this exact situation (albeit considering 38 C.F.R. § 3.105(e) which has the same procedural requirement), and found that the Veteran was not prejudiced by the RO's failure to correctly apply the effective date provisions, but he was prejudiced in that he did not receive an extra month's compensation he was owed. Importantly, the RO recognized the mistaken effective date, and corrected such procedural error in a January 2020 rating decision, assigning the proper effect date of July 1, 2013. 

In this instance, the error was harmless as the bilateral hearing loss was rated as noncompensable, and thus the Veteran did not, in fact, miss any compensation payment, and the RO corrected the effective date error. Thus, all due process requirements were met in the severance of service connection for bilateral hearing loss. 38 C.F.R. § 3.105(d).  

Having met the due process requirements, the remaining question before the Board is whether the grant of service connection for bilateral hearing loss was clearly and unmistakably erroneous. After a review of the record, the Board concludes that the severance of service connection was proper because the adjudicator made an erroneous factual finding and granted service connection when a disability for VA purposes did not exist.

To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision.  Allen v. Nicholson, 21 Vet. App. 54 (2007). A clear and unmistakable error is one about which reasonable minds could not differ. 38 C.F.R. § 3.105(a)(1)(i).

In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 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 injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time, she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Pertinent to the Veteran's claim, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.

The September 2008 grant of service connection was based on a June 2008 VA audiological examination. At that time, the Veteran had Puretone decibel threshold levels of 20, 35, 30, 25, and 25, in the right ear, and 20, 30, 30, 25, and 25, in the left ear, for 500, 1000, 2000, 3000, and 4000 Hertz respectively. He had Maryland CNC scores of 100 percent in the right ear and 96 percent in the left ear. Importantly, such testing shows some levels of hearing loss, but not hearing loss for VA compensation purposes.

The Veteran appealed the assigned disability rating, and in April 2012, he underwent another VA audiological examination for his hearing loss. At that time, the Veteran had Puretone decibel threshold levels of 20, 35, 35, 25, and 20, in the right ear, and 25, 30, 30, 25, and 25, in the left ear, for 500, 1000, 2000, 3000, and 4000 Hertz respectively. He had Maryland CNC scores of 96 percent in the right ear and 98 percent in the left ear. Again, such testing shows some levels of hearing loss, but not hearing loss for VA compensation purposes.

The severance process on appeal herein followed. Thereafter, the Veteran continued to seek treatment for his levels of hearing loss, but did not show hearing loss for VA purposes until a May 2017 private audiogram showed Puretone decibel threshold levels over 40 at 1000 hertz bilaterally. Likewise, a March 2018 private audiogram showed Puretone decibel threshold levels over 40 at 1000 hertz.

The Veteran then underwent another VA examination in December 2019, at which time he showed the worst findings during the pendency of the appeal, with Puretone decibel threshold levels of 30, 55, 55, 45, and 60, in the right ear, and 35, 55, 60, 55, and 55, in the left ear, for 500, 1000, 2000, 3000, and 4000 Hertz respectively, and Maryland CNC scores of 40 percent in the right ear and 52 percent in the left ear.

In contrast, he underwent a final VA audiological examination in March 2020, at which time he showed hearing loss for VA purposes in the right ear only, and showed much better scorers than the previous examination. In this regard, his Puretone decibel threshold levels were 20, 35, 30, 30, and 30, in the right ear, and 25, 30, 30, 25, and 25, in the left ear, for 500, 1000, 2000, 3000, and 4000 Hertz respectively, with Maryland CNC scores of 100 percent in the right ear and 96 percent in the left ear.

Based on the foregoing, the Board finds that the 20008 grant of service connection for bilateral hearing loss was clearly and unmistakably erroneous because the VA examination upon which such grant was based did not in fact include a diagnosis of VA hearing loss. Therefore, had the adjudicator considered the correct facts, then there was no competent evidence of a diagnosed disability at that time.

Having found a clear error, the Board must also inquire as to whether the error manifestly changed the outcome of the award of service connection. In this regard, the first element of service connection requires a current disability. Shedden, supra. The record reflects that while the Veteran had some levels of hearing loss, and abnormal hearing, he did not have a bilateral hearing loss disability per 38 C.F.R. § 3.385 during the pendency of the appeal, or prior to such time, until May 2017, which was over 4 years since service connection was severed. See McClain, supra; Romanowsky, supra. The September 2008 rating decision found a disability existed when there was no evidence of such in the record, and rather the record contradicted such finding; and thus, the error altered the outcome of the 2008 rating decision and constitutes clear and unmistakable error. 38 C.F.R. § 3.105(a).

The Board acknowledges that later audiometric testing showed the Veteran met the requirements for a disability of bilateral hearing loss, and as above, he filed a claim for service connection based on such findings. However, the issue here is not whether service connection is presently warranted for bilateral hearing loss, but whether the March 2013 severance of service connection was proper. In this regard, the regulatory criteria for a hearing loss disability are clear, and the Veteran did not have such disability when he was service-connected for such, and he did not have such disability until many years after the severance.

Accordingly, the Board must conclude that the award of service connection for bilateral hearing loss did involve clear and unmistakable error, as the grant was based on an erroneous factual finding, and the evidence of record does not otherwise support the grant. That error was outcome determinative and reasonable minds cannot differ as to the correct interpretation of the fact. Therefore, severance of service connection for bilateral hearing loss on the basis of clear and unmistakable error was proper, and the appeal is denied.

2. Entitlement to an initial compensable rating for bilateral hearing loss from November 28, 2007, to July 1, 2013.

The Veteran contends that his bilateral hearing loss was more severe than was compensated by the assigned rating, and thus a higher rating was warranted.  However, pursuant to 38 C.F.R. § 3.400(o), a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 

The Board has in this decision upheld the severance of service connection for bilateral hearing loss effective July 1, 2013. The law clearly is dispositive as it prohibits a retroactive increase once basic entitlement has been terminated. Accordingly, the Board finds that the Veteran lacks entitlement under the law for a higher initial disability rating for bilateral hearing loss where service connection for such has been properly severed; therefore, the request for a higher initial disability rating must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Therefore, the claim for higher rating for bilateral hearing loss from November 28, 2007 to July 1, 2013 must be denied.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to 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. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59.

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).

The period on appeal for the Veteran's increased rating claims begins November 28, 2007, the date VA received his claim for increased ratings, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

3. Entitlement to a rating in excess of 10 percent for left knee DJD for the period prior to April 30, 2018.

4. Entitlement to a rating in excess of 10 percent for right knee DJD for the period prior to February 28, 2011.

5. Entitlement to a rating in excess of 30 percent for right TKA for the period from April 1, 2012 

6. Entitlement to a rating in excess of 30 percent for a left TKA beginning June 1, 2019.

The Veteran contends that his bilateral knee disabilities, both before and after the TKAs, were more severe than is reflected by the currently assigned ratings. In this regard, he primarily contends that the pain from these disabilities alone warrants a higher rating, based on the resulting functional impairment, including with flares of aching pain. Specifically, he contends his knee disabilities cause interference with all movements, sitting, standing, and sleeping. After a review of the record, the Board finds his symptoms prior to the TKAs are wholly contemplated under the currently assigned ratings. Moreover, for the right knee, prior to June 19, 2018, his symptoms were contemplated by the assigned 30 percent rating. However, thereafter, and for the entire period after the TKA for the left knee, the Veteran's symptoms worsened and are more accurately described as resulting in severe residuals; thus, warranting a higher 60 percent rating.

A little background is necessary in order to understand the claims on appeal. The Veteran originally disagreed with the RO's denial of ratings in excess of 10 percent for right and left knee DJD. Thereafter, the Veteran underwent total knee replacement of the right and left knees in February 2011 and April 2018, respectively. In a September 2012 rating decision, the RO re-evaluated the Veteran's right knee disability pursuant to the provisions of 38 C.F.R. § 4.71a, DC 5055 (knee replacement) and granted an increased 100 percent rating for the Veteran's right knee disability from February 28, 2011, and a 30 percent rating for the Veteran's right knee disability was assigned from April 1, 2012. In a June 2018 rating decision, the RO re-evaluated the Veteran's left knee disability pursuant to the provisions of 38 C.F.R. § 4.71a, DC 5055 and granted an increased 100 percent rating for the Veteran's left knee disability from April 30, 2018, and a 30 percent rating for the Veteran's left knee disability was assigned beginning June 1, 2019.

Turning to the evidence of record, prior to the period on appeal, the Veteran's treatment records reflect that he had evidence of bilateral posterior horn medial meniscus tears. See August 2004 Bailey Square Surgery Center Operative Report. He underwent arthroscopic surgery to repair the left meniscus tear, having a partial meniscectomy performed. Id. At that time, he reported bilateral knee pain, a history of effusion in the right, and a "lot of catching, popping, and locking, especially in the left knee." Id. Those treatment records, and contemporaneous record following the surgery, note continuing bilateral knee pain, but infrequent findings of trace effusion, and reports of no effusion. See e.g. Id; November 2007 VA Treatment Record (noting pain but no instability, effusion or warmth); January 2008 Bailey Square Surgery center Record (noting no significant effusion in knees). Further, the Veteran reported locking in the past, but no recent locking in 2006. See September 2006 Bailey Square Surgery Center Record.

The Veteran then first underwent a VA examination for his knees during the appeal period in June 2008. At such time, he reported bilateral knee pain since service, with residual aching and stiffness in both knees daily, without acute flare-ups. The examiner noted there was no evidence of dislocation or recurrent subluxation. Upon evaluation, He was found to have full flexion and extension in the right knee, and flexion limited to 130 degrees in the left knee, with pain noted in the left knee at extremes of flexion only. There was no additional loss after repetitive use. Further, the examiner noted there was pain in the left knee at full squat with hypertrophy of both knees and prominence of the anterior tibial tubercle, consistent with Osgood-Schlatter disease, but otherwise there was no evidence of heat, redness, or swelling. His stability was intact, with negative Lachman tests and McMurray signs. The examiner noted he was able to walk unassisted in the office without limitations, he could squat and arise, and hop on either foot without significant discomfort.

Thereafter, he underwent another VA examination for his knees in April 2012, notably after the TKA of the right knee. The examiner noted the Veteran had severe DJD with old Osgood-Schlatter's disease, and that he had a total knee replacement on the right in February 2011. The Veteran reported that he wished he had not done the surgery because he is still in pain, with constant swelling, giving way and locking up about 1 to 2 times per week in the right knee. He also reported the left knee was painful every day, with intermittent swelling, giving way, locking about 2 to 3 times per day. He endorsed experiencing flare-ups, stating it was difficult to climb stairs. 

Upon evaluation, he had flexion limited to 120 degrees in the right knee, with pain at 115 degrees, and full extension with no objective pain. His left knee had flexion limited to 125 degrees, and full extension, with no evidence of pain in either. After repetitive use testing, his flexion was further limited to 115 degrees on the right and 120 degrees on the left. The examiner noted his knee disabilities caused functional impairment resulting in less movement than normal, weakened movement, pain on movement, in both knees; as well as incoordination, swelling, and disturbance of locomotion in the right knee only. He had pain on palpitation to both knees, and his right knee strength was limited to 4 out of 5. There was no objective instability noted, and again the clinical instability testing was normal. There was no evidence of patellar subluxation or recurrent dislocation, and no additional disabling knee conditions. The examiner noted he had bilateral meniscal conditions, with frequent episodes of locking and joint pain in both knees, but frequent episodes of effusion in the right knee only, and no history of a meniscectomy. The examiner endorsed the right knee TKA with resulting in intermediate degrees of residual weakness, pain, or limitation.

Shortly thereafter, the Veteran underwent another VA examination for the knees in June 2013. At that time, the examiner noted mild to moderate DJD in the left knee, and bilateral constant pain with flare-ups, which he stated slow him down a lot, without further information. Upon testing, he had flexion limited to 110 degrees in the right knee, with pain at 110 degrees, and full extension with pain at the end point of extension. He had full flexion in the left knee, without objective pain, and full extension, again with pain at the end point. There was no change after repetitive use. The examiner noted functional impairment of less movement than normal and pain on movement in right knee only, as well as pain to palpitation in right knee. He had normal strength on testing, and again, there was no instability found with normal testing results, no recurrent subluxation or dislocation, and no other disabling knee conditions. He was again noted to have meniscal conditions with frequent episodes of locking and pain in both knees, but no frequent episodes of effusion. Finally, the examiner noted the right TKA results in pain and less ROM.

The Veteran continued to seek treatment throughout this period for his knees, and reporting varying degrees of knee pain, with the worst from an April 2015 VA treatment record noting bilateral knee pain that was 10 out of 10. Further, in September 2016 physical therapy records, he again reported left and right knee pain, as well as a feeling of looseness and instability, buckling, stiffness, waking up at night due to pain when the knees touch, popping inside joint, swelling, tightness, painful ROM, and weakness. However, he had normal ROM in left knee, and flexion limited to 110 degrees in the right knee, with no objective instability found and again normal stability testing. Additionally, there was no swelling noted in the left knee, and minimal swelling in the right knee. 

Then, following the April 2018 left knee TKA, the Veteran underwent another VA examination for his knees in June 2018. The examiner noted the history of bilateral TKAs, as well as bilateral meniscal tears. The Veteran reported constant aches and pains in the knees, as well as flare-ups which caused swelling, aches, and throbbing pain in both knees. The Veteran further reported persistent swelling and rest pain in left. The examiner noted the left knee seemed to be infected, as it was more painful and swollen than before, with instability. The Veteran also reported his right knee has pain at rest, with less ROM, and instability. He again noted that flare-ups cause less ROM, pain, and swelling.

Upon evaluation, the Veteran had flexion limited to 90 degrees in the right knee and 110 degrees in the left knee, with full extension bilaterally, with pain on motion, pain on weightbearing, localized tenderness. The Veteran refused repetitive use due to pain. Additionally, the examiner noted the examination was not conducted after repeated use over time or during flare-up, but the examination was medically consistent with his reported limitation during such periods, and he would be further limited by pain, fatigue, weakness, and lack of endurance during such times. However, the examiner opined that any further limitation could not be described in terms of ROM, but passive ROM is the same as active. The examiner also noted his right knee has swelling, and pain which interferes with sleep. He had normal muscle strength, and no subluxation or lateral instability, but he did have recurrent effusion, as well as objective instability in both joints, confirmed by testing showing bilateral anterior instability, posterior instability, medial instability, and lateral instability. Finally, the examiner noted the TKA residuals are chronic pain, worsening pain with weight bearing, and shooting pain without movement in both knees. As well as a loose and unstable feeling in the right knee, and marked swelling, discoloration, and pain with light touch to the skin in the left knee. 

Functionally, the examiner opined that the Veteran could not stand, walk, bend, kneel, or climb at all, and he used walker and crutch to ambulate. The examiner noted that the result of the recent left knee TKA was not satisfactory, and it may be infected. The Veteran had severe pain at rest and when non-weight bearing, and he could not bear weight on the knee, he was unable to rise from a chair without assistance, he could not walk from his vehicle into the office without stopping several times, and he was, at that point in time, unable to stand unsupported, walk, bend, kneel, or climb stairs or ladders. The examiner noted he had severe functional limitations.

Then, following the Board remand, the Veteran submitted a disability benefits questionnaire for his knees in May 2020. At that time, a physician noted the Veteran had bilateral TKAs, with bilateral pain, weakness, and buckling, with numbness. Of note, the physician included leg weakness and radiculopathy symptomatology, and stated such also impacted his lower extremity function. The Veteran stated his symptoms are not constant, but did not endorse flare-ups. At that time, he had flexion limited to 85 degrees on the right knee, with normal extension, and pain on flexion and weightbearing, with localized tenderness. For the left knee he had flexion limited to 100 degrees, with full extension, and pain on flexion but not on weightbearing, with localized tenderness. The physician did not perform repetitive use, and noted that although the examination did not occur after repeated use over time or during a flare-up, but that the examination was consistent with the Veteran's statements of impairment during such times, and pain and weakness would further limit his function, but there would be difference in ROM. The physician did not perform strength testing but noted the Veteran had good strength. There was no objective instability, and instability testing was normal. The physician opined that his bilateral TKAs resulted in intermediate degrees of residual weakness, pain, or limitation of motion bilaterally.

Lastly, the Veteran underwent a final VA examination for his knees during the period on appeal in February 2021. At that time, the Veteran again reported symptoms of stiffness and constant pain, with the left knee worse than the right, also with numbness and pain. He reported a difficulty walking more than one block, climbing more than 10 steps, and standing more than 5 minutes. He also reported flare-ups daily, that are severe and last hours to days, and are precipitated by cold weather or activities, and alleviated by rest. As above, there was no history of recurrent subluxation, dislocation, instability, or effusion. His ROM testing revealed flexion limited to 100 degrees in the right knee, and limited to 90 degrees in the left, with full extension bilaterally, and with pain on active and passive motion, weightbearing and non-weightbearing. There was no additional loss after repetitive use, but the examiner noted that pain, weakness, and lack of endurance cause additional limitation after repeated use over time and during flare-ups, but no further ROM loss. Although noting above no history of recurrent subluxation and instability, the examiner endorsed the presence of such at that time. Finally, the examiner endorsed the bilateral TKAs of producing chronic residuals consisting of severe painful motion and weakness.

Propriety of the assigned rating for DJD.

The Veteran's DJD was rated as 10 percent disabling for the right knee prior to February 28, 2011, and for the left knee prior to April 30, 2018, pursuant to DC 5003 for arthritis, which notes that arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Although the amended ratings apply to the knee disabilities, based on the effective date of the amendments, the ratings criteria applicable to the Veteran's knee disabilities in the instant case were not affected.

The Veteran's bilateral knee DJD is rated under 5003-5260 for painful movement with otherwise noncompensable range of motion (ROM) limitation of flexion. 38 C.F.R. §§ 4.59, 4.71a.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II.

Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees.

DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned.

VA's General Counsel has stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004).

Accordingly, and based on the medical history above, the Board finds that a rating in excess of 10 percent for the Veteran's DJD of the right knee prior to February 28, 2011, and DJD of the left knee prior to April 30, 2018, is not warranted. In this regard, during such period, the Veteran has shown limitation of flexion, at worst, to 140 degrees in the right and 120 degrees in the left, with pain, but such does not result in additional functional loss more nearly approximating limitation of flexion to 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, which is required for a higher rating under DC 5260. Notably, the worst flexion for the left knee was found after repetitive use. Further, the Veteran is in receipt of the minimal compensable rating due to the provisions of 38 C.F.R. § 4.59. Thus, a rating in excess of 10 percent for the Veteran's DJD of the right knee prior to February 28, 2011, and DJD of the left knee prior to April 30, 2018, pursuant to DC 5260 is not warranted.

Moreover, a higher or separate rating is not warranted pursuant to DC 5261 as the Veteran's right knee extension has not been shown to be limited to 5 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Rather, he uniformly tested for full extension, intermittently noted to have pain.

The Veteran has also reported subjective instability, reporting his knees feel like they will buckle, and his treatment record note bilateral medial meniscus tears, with a left knee arthroscopic surgery to repair the tear. Thus, the Board has considered whether a separate rating for instability or involvement of the semilunar cartilage is warranted. See Lyles v. Shulkin, 29 Vet. App. 107 (2017).

As in effect prior to the regulatory change in February 2021, which encompasses the full period for the currently contemplated ratings, DC 5257 provided for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability.

In this regard, VA's General Counsel has stated 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 noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel (GC) stated 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), published at 62 Fed. Reg. 63,604 (1997). 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, 63 Fed. Reg. 56,704 (1998). Specifically, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating. Id. The GC opinion relates to the interplay between instability and limitation of motion, and as the amended ratings criteria do not preclude the award of separate rating for such, the opinion is still applicable to the amended criteria.

Nonetheless, while the Veteran complained of instability and buckling throughout the period on appeal, such was not found on examinations conducted during the appeal period, notwithstanding a singular instance after both TKAs, which will be discussed below. In this regard, while he is competent describe feelings of instability and buckling, he is not competent to relate such symptoms to a diagnosis of lateral instability, recurrent subluxation, or patellar instability, as there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the VA examiners, who have the training to conduct and interpret ligament testing, found that there was no instability in either knee, after conducting numerous clinical tests. Further, objective instability was not found in the treatment evidence of record. Consequently, the Board finds that higher or separate ratings under the old DC 5257 is not warranted.

Further, as the Veteran was noted to have bilateral meniscus tears, and a partial meniscectomy, prior to the period on appeal, the Board has considered whether rating applicable to dislocation or removal of the semilunar cartilage were appropriate. DC 5258 provides a 20 percent rating when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage.

Here however, a separate or higher rating is not warranted under either DC for the semilunar cartilage. Specifically, while the Veteran was noted to have frequent episodes of locking and pain in both knees after the right knee TKA in 2011. Further, although the evidence shows some instances of effusion and swelling, prior to the left knee TKA, he was never endorsed with frequent episodes of effusion. Further, the instances of effusion and swelling noted in the record at that time were inconsistent and would not rise to the level of "frequent." Thus, a rating under DC 5258 is not warranted for either knee.

Further, while the Veteran underwent a partial meniscectomy of the left knee, such was a repair of the semilunar cartilage, and not a removal. Regardless, even assuming such was removed, the symptoms of the removal are all contemplated and considered by the currently assigned rating for painful limitation of motion. Specifically, the symptoms in the knee have been found to be pain, stiffness, swelling, and decreased range of motion. Here, the record shows the currently assigned 10 percent rating was awarded for functional loss due to painful motion and swelling. Although not specifically cited, the Board notes stiffness pertains to limitation of motion, which is considered under DC 5003. As such, the Board finds the Veteran's symptoms, to specifically include pain, stiffness, swelling, and limitation of motion, are wholly contemplated by his currently assigned 10 percent rating under DC 5003-5260 prior to July 13, 2019. Thus, the award of a separate rating under DC 5259 for the left knee would result in compensating the Veteran twice for the same symptomatology during such period. 38 C.F.R. § 4.14.

Finally, as the evidence does not show ankylosis, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under DCs 5256, 5262, and 5263, respectively, are not warranted.

Thus, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's DJD of the right knee prior to February 28, 2011, and DJD of the left knee prior to April 30, 2018. Therefore, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for a higher or separate rating for this period must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Propriety of the assigned rating for TKA residuals.

The Veteran's right knee TKA has been rated as 30 percent disabling since April 1, 2012, and his left knee TKA has been rated as 30 percent disabling since June 1, 2019, pursuant to DC 5055, for residuals of a total knee replacement. 38 C.F.R. § 4.71a. Under such DC, a 100 percent rating is assigned under DC 5055 for 1 year following implantation of prosthesis. Thereafter, a 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to DCs 5256 (ankylosis), 5261 (extension), or 5262 (tibia and fibula impairment). A 30 percent rating is the minimum rating assigned. Id.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Here, the amended portions of DC 5055 are not applicable as they consider the extent of the surgical operation, i.e. whether it was a partial or total replacement, and the timeline for a convalescent rating, which is not currently before the Board.

Initially, at no time during the pendency of the appeal did the Veteran show limited flexion, ankylosis, or impairment of the tibia or fibula, in either knee. Consequently, a rating by analogy to DCs 5256, 5261, or 5262, is not warranted.

Further, upon review of the relevant evidence, prior to June 19, 2018, the Veteran's right knee, was properly rated as 30 percent disabling under Diagnostic Code 5055. The evidence has shown that status post total knee replacement, the residuals are pain at rest, pain with motion, feelings of instability, pain interfering with sleep, weakness, recurrent effusion, locking, with flexion limited to 110 degrees at worst. Importantly, such flexion is commensurate with a noncompensable rating under DC 5260. Further, the instability was not confirmed by any clinical testing during such period, and rather was subjective only. Notably, the VA examinations of record endorsed no more than residuals of the right knee TKA resulting in intermediate degrees of residual weakness, pain, or limitation, during this period. Finally, while the right knee pain and residuals clearly impacted the Veteran's functional ability, he was able to perform the duties of his employment successfully until December 2014, when he retired. 

Therefore, prior to June 19, 2018, the Veteran's right knee TKA did not result in chronic residuals consisting of severe painful motion or weakness to warrant a higher 60 percent rating under DC 5055. However, as of such time, and for the entire period beginning June 1, 2019, for the left knee TKA, the residuals of such were commensurate with severe painful motion and weakness.

In this regard, the June 2018 VA examination showed a clear worsening of the Veteran's symptomatology and resulting functional impairment. Notably, during this period, he a reduced flexion limited to 85 degrees in the right knee and to 90 degrees in the left. While again, such limitation would be noncompensable under DC 5260, the disability picture clearly shows that the Veteran's functional limitation is due to pain and weakness as opposed to actual limitation of ROM. Specifically, at the June 2018 examination, the examiner found the Veteran had severe pain at rest and when non-weight bearing, and he could not bear weight on the knee, he was unable to rise from a chair without assistance, he could not walk from his vehicle into the office without stopping several times, and he was, at that point in time, unable to stand unsupported, walk, bend, kneel, or climb stairs or ladders. The examiner also noted he had severe functional limitations.

Importantly, while the above examination was conducted during the convalescent period shortly after the left knee TKA, and the subsequent May 2020 DBQ only noted intermediate degrees of residual weakness, pain, or limitation of motion bilaterally, the Board finds the more severe limitation from the June 2018 examination is a more accurate picture of the Veteran's disability. Notably, the most recent February 2021 examination found similar functional impairment, noting difficulty walking more than one block, climbing more than 10 steps, and standing more than 5 minutes, and particularly noting daily severe flare-ups. Finally, the examiner also endorsed chronic residuals consisting of severe painful motion or weakness bilaterally.

Therefore, resolving doubt in the Veteran's favor, the improved functional impairment found in the May 2020 DBQ, which occurred in between examination finding worse symptomatology, is not indicative of his overall disability severity at that time, and rather the findings of chronic residuals consisting of severe painful motion and weakness more accurately describe the Veteran's right knee TKA since June 19, 2018, and left knee TKA for the entire period.

Consequently, a 60 percent rating is warranted for the right knee TKA since June 19, 2018, and left knee TKA for the entire period.

Thus, in sum, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's DJD of the right knee prior to February 28, 2011, and DJD of the left knee prior to April 30, 2018. Further, the preponderance of the evidence is against a rating in excess of 30 percent for a right knee TKA prior to June 19, 2018. However, a 60 percent rating for the right knee TKA since that time, and for the left knee TKA for the entire period, is warranted. 

In reaching these decisions, the Board recognizes the Veteran's sincerely held belief that his knee symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau, supra; Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. In this regard, the Board notes that the earlier examinations did not complete all the testing required under Correia, supra, and Sharp, supra, including passive ROM testing and testing for pain on non-weightbearing. However, the ROM findings are still the most probative evidence concerning the Veteran's functional limitation at such times, and he has not argued that his disabilities would result in more severe testing results during such. Further, the later examinations conducted all the necessary testing and his passive ROM was the same as his active. Additionally, the Board has considered all the additional disability due to pain, whether on weightbearing or not, and has applied the most favorable ratings in consideration of such. Further, pertinent to flare-ups, the Veteran did report such, but described them as additional pain, weakness, and swelling. Again, the Board has considered the worst findings of such symptoms throughout the periods on appeal. Finally, the later examinations were consistent with the Veteran's statements during flare-ups and after repeated use over time, and there was no additional change in ROM. Nonetheless, as before, the Board has considered the findings from when the Veteran was most limited, in light of the contemporaneous clinical findings in reaching its decision.

Accordingly, the Board has resolved all doubt in the Veteran's favor, which has resulted in partial increased ratings. However, insofar as the Board has denied higher or separate ratings for the Veteran bilateral knee disabilities, the preponderance of the evidence is against such aspects of his claim, and the benefit of doubt doctrine does not apply, and higher or separate ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

7. Entitlement to a rating in excess of 10 percent prior to October 14, 2020, and in excess of 50 percent thereafter, for bilateral pes planus.

The Veteran contends that his bilateral pes planus is more severe than is reflected by the currently assigned disability rating. In this regard, he testified that his feet are always cold, and he was told he is Pidgeon-toed. He also reported pain in his feet throughout the appeal period. However, after a review of the record, higher ratings are not warranted for the Veteran's pes planus as his symptoms are wholly contemplated by the currently assigned ratings.

The Veteran's pes planus has been rated as 10 percent disabling prior to October 14, 2020, and as 50 percent disabling thereafter, pursuant to 38 C.F.R. § 4.71a, DC 5276.

Under DC 5276, a 10 percent evaluation for bilateral pes planus is assigned when there are moderate flatfeet with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent evaluation is assigned for severe bilateral pes planus; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating, the maximum, is assigned when there is evidence of pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a.

Turning to the evidence of record, the Veteran first underwent a VA examination for his feet in June 2008, at which time he reported coldness in both feet all the time. As a result, he stated he had to wear extra socks, and he had aching and stiffness. However, the examiner noted there were no symptoms present at that time, and there were no flare-ups. The Veteran wore shoe inserts bilaterally, but had no impediment to activities of daily living, and he had no functional impairment. Upon examination, his feet appeared normal other than pes planus, and he was able to hop to each foot and squat without apparent pain. He had a normal gait, no callosities, breakdown, or unusual shoe wear pattern. He had no skin or vascular changes, no deformity, and no valgus, and no malalignment. The examiner concluded he had moderate pes planus with normal achilles alignment.

He then underwent another VA examination for his feet in April 2012, at which time he was noted to have bilateral pes planus that was very mild. He reported experiencing pain in the "ball of the feet and outer edges of his feet." He also reported that he wore shoe inserts, but feels that since the right knee replacement, the pain has increased in the feet because he feels like he is walking differently. He reported that he was also seen for plantar fasciitis. Upon examination, he had pain on use, and accentuated by use, bilaterally. However, there was no pain on manipulation, no swelling, no characteristic callosities, no extreme tenderness on the plantar aspects of the foot, no malalignment, no deformity, no marked pronation, his weightbearing line did not fall over or medial to the great toe, and there was no inward bowing, displacement, or spasms of the achilles tendon. His symptoms were not relieved by the arch supports, but the examiner concluded there was no functional impact or impairment from the pes planus.

The Veteran underwent another VA examination for his feet in December 2019, at which time he was again noted to have very mild bilateral pes planus. He reported that "my feet stay cold 24/7 throughout the year," and he had to wear socks all the time as they are cold. He also stated that it hurts to walk, and his arch is gone. Importantly, he reported that his foot doctor told him he has neuropathy, he has a specialist trim his toenails, and he gets orthotic shoes every 2 to 3 years. He further reported no flare-ups, and on evaluation, he had no pain on use of feet or manipulation, no swelling, no callouses, no extreme tenderness, no deformity, no other pertinent symptoms, and of particular note, there was no pain noted on clinical evaluation. However, the examiner did note he had decreased longitudinal arch in both feet. 

The examiner was asked to review the record and describe the current severity of the Veteran's disability, as he reported worsening symptoms. After a review of the record, the examiner noted that a clinical examination of the Veteran that day showed his pes planus condition was very mild, and there was no evidence to show a worsening. The examiner noted that VA podiatry records from 2019 showed the Veteran did not have collapsed arches or callouses. In this regard, the examiner stated that medical literature supports that worsening of pes planus is associated with increase in degree of flattening of the foot/arch or development of callouses, which was not seen in the Veteran's medical record or on clinical examination.

The Veteran then underwent a final VA examination for his feet in January 2020, which was the basis for the grant of an increased 50 percent rating. At that time, the Veteran reported he wears inserts in his shoes that do not help, he has pain in the balls and heels of his feet, which was a sharp throbbing pain with no flare-ups. The examiner noted he has pain with standing and walking, pain on use and manipulation, and it is accentuated with both, bilaterally. There was no swelling on use, no callouses, no extreme tenderness, and no inward bowing, or inward displacement. The examiner did endorse the presence of a decreased longitudinal arch, evidence of weight-bearing over or medial to great toe, and there was evidence of a marked deformity and marked pronation, bilaterally. The examiner noted that disturbances in locomotion and pain cause functional loss, and he had pain on weightbearing and active motion.

The medical treatment evidence of record largely supports the findings from examination. In this regard, January 2020 podiatry records note that the Veteran had diabetic polyneuropathy, which was characterized by cold feet, feelings of pins and needles, and numbness. At that time, he reported his symptoms were slowly worsening, and he had swollen feet. In October 2020, he reported bilateral foot pain had been present for roughly 6 weeks, which was sharp and burning on the bottoms of the feet and toes, and it was worse with walking. However, in September 2020 and January 2021 private treatment records, the Veteran's feet showed no abnormalities, palpitation revealed no abnormalities, and there was no pain elicited by motion of the foot.

Based on the foregoing evidence, the Board finds that a rating in excess of 10 percent prior to October 14, 2020, and in excess of 50 percent thereafter, for the Veteran's bilateral pes planus are not warranted. In this regard, prior to October 14, 2020, VA examinations revealed no objective evidence of pain on manipulation accentuated, marked deformity, swelling, callouses, or other symptoms indicative of severe pes planus. Rather, he was found to have moderate, mild, and very mild pes planus. As noted by the December 2019 examiner, the treatment records and clinical evidence do not show the structural changes or presence of callouses that would indicate a worsening of the bilateral pes planus.

Notwithstanding, the Veteran did report that his condition was worsening, and his January 2020 podiatry record confirms such. In that record, and since before the period on appeal, he has been treated for bilateral diabetic polyneuropathy, which causes coldness in the feet. Nonetheless, the symptoms and resulting functional impairment of each disability of the feet have not been explicitly delineated, and thus the Board will resolve doubt in the Veteran's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). 

However, in even consideration of all the foot symptoms, his pes planus was never found to be more than moderate prior to October 14, 2020, and the preponderance of the evidence is against a rating in excess of 10 percent for such time.

As of such date, the Veteran is in receipt of a 50 percent rating for his bilateral pes planus, which is the highest rating under the schedular criteria for pes planus. Furthermore, a 50 percent rating is the maximum schedular rating assignable for any foot disability. Consequently, a rating in excess of 50 percent under any potential applicable DC is not warranted. Thus, the only way for the Veteran to receive a higher disability rating is to award for the Veteran to show he has loss of the use of his feet, or award a rating on an extraschedular basis.

The Board notes that the record does not show that the Veteran has actual loss of use of either foot. Specifically, at each VA examination of record, the Veteran was not found to be equally as well served as amputation. Further, the Veteran has been noted to maintain the ability to ambulate throughout the period on appeal. While the Veteran has reported it hurts to walk at times, he has never reported an inability to do so, and the medical evidence of record does not reflect that he has actual loss of the use of his feet. Consequently, the Board notes that ratings for loss of the use of either foot are not warranted under DC 5284.

Similarly, the Board has considered a separate rating for SMC for loss of the use of a foot, however such is also not warranted. In this regard, SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) may be awarded on the basis of loss of use of one foot. The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350 (a)(2) as that condition where...no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63. In the instant case, as noted above, all the VA examiners of record, and the treating physicians, have not found the Veteran would be equally as well served by amputation and the use of a prosthesis.

In light of the Veteran's argument that he is entitled to higher ratings based on the schedular or extra-schedular criteria, the Board has also contemplated whether the case should be referred for consideration of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1). First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In the instant case, the Board finds that the Veteran has not raised the issue of any symptoms not contemplated by the rating schedule. In this regard, the Veteran reported cold feet, sharp foot pains, numbness, pain on use, Pidgeon-toes, and pain with weightbearing. However, he has otherwise not reported that his pes planus causes any other disability or impairment. Notably, he has used inserts and orthotic shoes, and he has used a cane, walker, and crutches to ambulate.

In light of the foregoing, the Board finds that the use of inserts and orthotics is explicitly contemplated by the ratings criteria for pes planus, and use of a cane, walker, and crutches have been as result of his knee disability only, and moreover is contemplated by the ratings schedule as a logical consequence of his pain and weakness. Further, pain is contemplated by the ratings schedule through its effect on limitation of motion, and directly through 38 C.F.R. § 4.59. The ratings criteria also explicitly consider deformity of the foot. Further, the ratings criteria, as detailed above, contemplates the actual loss of the use of the foot under DC 5284, which has not been shown in the instant case, and contemplates all possible functional impairment from symptoms. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno, supra. However, even considering the Veteran's lay reports of pain and functional impact, the degree of additional limitation reflected by the Veteran's statements and the medical evidence would not result in symptoms more nearly approximating severe bilateral pes planus.

The Board has also considered the other DCs pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, supra; see also Lyles, supra. In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to DCs that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d at 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016)). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id.

Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different DC. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different DC.

Consequently, the Board finds that a rating in excess of 10 percent prior to October 14, 2020, is not warranted as the Veteran's pes planus was of a moderate severity at worst for such period. Further, a rating in excess of 50 percent thereafter is not warranted, including for loss of use of the foot and on an extraschedular basis. In reaching these decisions, the Board has considered the benefit of the doubt doctrine, however the preponderance of the evidence is against higher or separate ratings. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran's claim for a higher initial or separate rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

8. Entitlement to a compensable rating for right elbow epicondylitis and spur.

The Veteran also contends that his right elbow disability is more severe than is reflected by the currently assigned rating, as the pain in his elbow causes functional impairment and limitation of motion. After a review of the record, the Board notes that the Veteran has been noted to have pain in the elbow, which caused some limitation of motion at points during the period on appeal, and he has competently and credibly described functional impairment as a result of such pain, and therefore a 10 percent rating is warranted for such painful limitation of motion that is otherwise noncompensable.

The Veteran's elbow has been rated as noncompensable for the entire period on appeal pursuant to DC 5206. In this regard, as the Veteran is right-hand dominant, the rating criteria for the dominant elbow are applicable. Specifically, pursuant to DC 5206, limitation of flexion of the major arm to 100 degrees warrants a 10 percent rating; limitation of flexion to 90 degrees warrants a 20 percent evaluation; limitation of flexion to 70 degrees warrants a 30 percent evaluation; limitation of flexion to 55 degrees warrants a 40 percent rating; and limitation of flexion to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71 DC 5206. In this regard, normal range of elbow motion is from 0 degrees of full extension to 145 degrees of flexion, with 0 to 80 degrees of forearm pronation and 0 to 85 degrees of forearm supination. 38 C.F.R. § 4.71 Plate I.

The Veteran underwent a VA examination in August 2008 for his right elbow disability, at which time he reported pain at a level of 9 out of 10, with stiffness and swelling at times. He also reported flare-ups occur with continued activity with the right hand, and as he is right hand dominant, he missed a couple days a month due to such pain, and he needed to go at a slower pace with the right hand. There was no dislocation or recurrent subluxation, but the elbow was tender in the medial epicondylar region, as well as in the olecranon process, with mild soft tissue swelling in comparison with the left elbow. Upon evaluation he had full extension, and flexion limited to 120 degrees with end-range pain, and there was no additional limitation with repetitive use.

Then in April 2012, he underwent another VA examination for his elbow, at which time he reported intermittent pain, noting his job required him to deliver and set up equipment for the blind, which sometimes aggravated the elbow. The pain was noted as mild, with flare-ups with weather changes and overuse. Upon evaluation, he had full flexion and extension with no objective evidence of pain on use, and there was no change after repetitive use. The examiner concluded there was no functional loss, and his strength was normal. Further, there was no flail joint, joint fracture and/or impairment of supination or pronation.

Finally, following the Board remand, he underwent another VA examination in December 2019, wherein he reported limitation in that he could not perform heavy lifting, and wore a brace sometimes. He did not report flare-ups at that time. Moreover, he again had full ROM in flexion and extension without evidence of pain, and there was no additional loss after repetitive use, and the examiner stated that the examination was neither consistent nor inconsistent with his statements regarding limitation after repeated use over time, but there would not be any additional limitation during such periods. However, he did have localized tenderness, complaining of right elbow pain. He had normal strength, and there were no other pertinent findings. The examiner noted he could not perform passive ROM testing because of pain, and there was no evidence of pain on non-weightbearing. Further, the examiner concluded there was on functional loss due to the elbow disability.

Based on the foregoing, the Board finds that a 10 percent rating, but no higher, is warranted for the entire appeal period for painful motion, with occasional limitation of motion, and functional impairment limiting heavy lifting. In this regard, as above, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Thus, he is entitled to the minimum compensable rating for such painful motion with functional impairment.

However, a rating in excess of 10 percent is not warranted for any point during the period on appeal. In this regard, the three VA examinations in August 2008, April 2012, and December 2019, which represent the sole documented range of motion test results of record, he demonstrated 120, 145, and 145 degrees of flexion, respectively, without pain noted only at the August 2008 examination. Furthermore, the December 2019 VA examiner likewise found no pain with nonweight-bearing, and observed that the Veteran maintained full range of motion throughout all testing. Additionally, the Veteran had no additional limitation in his range of motion following three repetitions at each examination. Notably, while the two earlier examinations did not conduct al the testing required by Correia, supra, the Veteran has not argued that his ROM would be further limited on passive motion, and the last VA examination showed he did not have pain on non-weightbearing. Further, the Veteran endorsed flare-ups at the two earlier examinations, and there was no specific opinion regarding his impairment at such time. Sharp, supra. However, he did not endorse flare-ups at the last examination, and he did not describe the functional effect of his flare-ups. Notably, the Veteran had the most pain, and worst limitation of motion at the August 2008 examination, where he reported flare-ups. Consequently, the Board has applied the worst findings from the entire period on appeal to contemplate his periods of flare-ups. However, the findings do not show, and he does not argue, that such would result in flexion limited to 90 degrees to warrant a higher 20 percent rating. Therefore, as the Veteran's right elbow flexion is limited to no less than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as result of repetitive motion and/or flare-ups, a rating in excess of 10 percent under DC 5206 is not warranted.

Furthermore, as the VA examiners likewise found that the Veteran had full extension, without noting limitation of pronation, and supination, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as result of repetitive motion and/or flare-ups, the Board finds that a higher or separate rating under DCs 5207, 5208, or 5213 (based on limitation of motion), respectively, is not warranted. Finally, as there is no evidence of ankylosis, nonunion of the radius and ulna, or impairment of the flail joint, ulna, radius, and/or supination and pronation, higher or separate ratings under Diagnostic Code 5205, 5209, 5210, 5211, 5212, or 5213 (based on bone fusion), respectively, are not warranted.

Consequently, the Board finds that a 10 percent rating, but no higher, is warranted for the right elbow disability for the entire appeal period. In reaching this decision, the Board has resolved all doubt in the Veteran's favor, however insofar as higher or separate ratings were denied herein, the preponderance of the evidence is against such aspects of the Veteran's claim, and higher or separate ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

9. Entitlement to a rating in excess of 10 percent for hiatal hernia with GERD.

The Veteran also contends that his hiatal hernia with GERD is more severe than is reflected by the currently assigned disability rating. Specifically, he contends such results in reflux and regurgitation, persistently recurrent epigastric distress, dysphagia, substernal arm and shoulder pain, sleep disturbance, nausea, and vomiting, all of which has a marked interference with his daily activities. However, after a review of the record, the Board finds his hiatal hernia with GERD is manifested by intermittent dysphagia, reflux, pyrosis, without being productive of considerable impairment of his health, and thus warrants no more than the currently assigned 10 percent rating.

In this regard, the Veteran's hiatal hernia with GERD has been rated as 10 percent disabling for the entire appeal period pursuant to pursuant to DC 7346. 38 C.F.R. § 4.114.

Under such DC, a 60 percent rating is warranted if the disability is manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned if symptoms consist of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substantial or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of less severity, a 10 percent rating is assigned. Id.

VA's Rating Schedule provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113.

For that reason, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive may not be combined with each other. Rather, a single evaluation is assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114.

The Veteran underwent a VA examination for his hiatal hernia with GERD in June 2008, and at that time the examiner noted an upper GI from March 2008 showed no evidence of hiatal hernia, with mild gastroesophageal reflux, with mild nonspecific duodenitis. The examiner endorsed symptoms of occasional dysphagia 1 to 2 times per week, as well as heartburn with indigestion and bloating on a daily basis. There was no hematesis, melena, reflux, regurgitation, nausea, or vomiting endorsed at that time. Further, the examiner stated there was no effect on his activities of daily living or functional ability.

The Veteran then underwent another VA examination in April 2012, at which time he was noted to have GERD with a small hiatal hernia. The examiner noted that endoscopies have been performed, with the last one showing the cervical spurs pushing on his esophagus. Further, an esophagogastroduodenoscopy was performed for dysphagia in September 2008, showing a small hiatal hernia, partial Schatzki ring, and gastritis. The examiner endorsed symptoms of dysphagia and reflux at that time, without stricture, spasm, or diverticulitis. Finally, the examiner found there was no functional impact from the hiatal hernia with GERD.

Following his reports of worsening symptoms, the Veteran underwent another VA examination in December 2019, at which time the Veteran reported he has a constant problem swallowing food, and he cannot digest food. He also reported experiencing acid reflux where he regurgitates, and he has to hit his chest to try to make it regurgitate. The examiner endorsed signs and symptoms of reflux and regurgitation. The examiner further noted that a review of a November 2018 upper endoscopy noted no obstructive lesion or obstruction in the esophagus to explain his report of dysphagia, and there is no recurrence of esophageal stricture since his September 2017 esophageal dilation, likewise with a September 2018 barium swallow. The examiner noted that the medical literature supports that difficulty swallowing in hiatal hernia with GERD is caused by esophageal stricture/esophageal spasm/esophageal erosions or esophageal ulcer, which is clearly not seen in this case. Further, the examiner noted that the VA medical records show that the Veteran has steadily gained weight despite his symptoms of dysphagia, and he testified to gaining weight. The examiner noted that medical literature supports that difficulty swallowing in hiatal hernia with GERD is commonly associated with weight loss, and not with weight gain as is the case here.

Finally, the Veteran submitted an esophageal condition DBQ in May 2020, completed by an APRN. The APRN noted an in-person examination, and a review of the VA claims file in hard copy. The APRN noted the Veteran had GERD, hiatal hernia, and esophageal stricture, as well as dysphagia. The APRN endorsed persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, and substernal, arm, and shoulder pain. The examiner also endorsed sleep disturbance caused by epigastric distress on a daily basis, as well as nausea and vomiting 2 to 3 times per week. The Veteran was also endorsed with reflux and bloating not relieved by pancreatic enzymes and dysphagia not relieved by multiple dilations.

The medical treatment evidence of record correlates more closely to the findings from the VA examinations, and not the May 2020 DBQ. In this regard, an August 2012 upper GI series showed hiatal hernia and GERD, but no strictures or ulcers, and the Veteran reported heartburn daily with occasional dysphagia, but he denied abdominal pain and discomfort, change in bowel habits or weight loss, nausea or vomiting, odynophagia, hematemesis, melena, hematochezia, fever or chills, shortness of breath, or chest pain. In September 2014, he reported no difficulty swallowing, heartburn, nausea, vomiting, diarrhea, constipation. In March 2015, he was consulted for continued dysphagia, noting he was having dysphagia to both solids and liquids, which he states was not getting any better with passage of time. At that time, he also reported experiencing heartburn and regurgitation, but he denied problems with bowel movements, hematochezia, melena, unintended weight loss, nausea, vomiting, or hematemesis. 

In August 2017, he was treated for intermittent reflux and pyrosis, with progressively worse dysphagia. In February 2018, he was treated for chronic reflux and dysphagia, noting he has had persistent intermittent dysphagia for several years, and he beats his chest to enable the food to go down. He reported a burning in the chest and occasional regurgitation occurs 1 to 2 times per week, but he denied chest pain, nausea, vomiting, nasal regurgitation, or postprandial coughing. Then in September 2018, he reported dysphagia with solids and liquids for 10 years, and occasionally vomited after eating meals. There were no complaints of abdominal pain. There was also no definite esophageal mass, stricture or filling defect otherwise appreciated. Finally, a May 2020 record noted the presence gastrointestinal symptoms of chronic reflux, dysphagia, and regurgitation only, with a non-obstructing Schatzki's ring.

Based on the foregoing, the Board finds that the Veteran has had consistent symptoms of dysphagia, reflux, regurgitation, and pyrosis for the entire period on appeal. Further, the record reflects infrequent vomiting after meals. However, the record does not support a finding of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health that would warrant a rating in excess of 10 percent. 38 C.F.R. § 4.114. In this regard, the Board finds the VA examinations and medical treatment evidence more probative than the May 2020 DBQ. 

Specifically, the DBQ includes numerous symptoms that are not otherwise supported in the record, and not otherwise reported by the Veteran during the entire appeal period. Notably, the VA examinations and medical evidence of record, does not include reports of any persistent recurrence of epigastric distress. Further, the treatment records only reflect one report of occasional vomiting after meals in 2018, with numerous affirmative denials of frequent vomiting. The reports of frequent nausea are likewise not supported in the treatment evidence of record, and again are affirmatively denied on frequent occasions. Moreover, the APRN endorsed the presence of substernal, shoulder, and arm pain; however, the Veteran has otherwise not reported the presence of any such pain, except in regard to musculoskeletal arm and shoulder pain, which he reported frequently, and was treated for frequently. Finally, the May 2020 DBQ endorsed the presence of esophageal stricture, which is not supported in the record, and in fact refuted by the other medical evidence.

Additionally, there is no evidence that the Veteran's symptoms which are present, are productive of considerable impairment of health. In this regard, the Veteran has reported weight gain throughout the period on appeal, as opposed to any weight loss, which the December 2019 examiner stated would be indicative of impairment of health due to a hiatal hernia. The Veteran also reported sleep impairment as an impairment of health. Notably, while he is competent to report experiencing sleep impairment from the symptoms of his hiatal hernia, the record reflects he has attributed the same sleep impairment to pain from his knee disabilities, and low back disability. Additionally, his treatment records show his prostate issues cause sleep impairment as he wakes frequently to void. Thus, the sleep impairment cannot be attributed solely to the hiatal hernia and GERD, and thus cannot be the basis for establishing such as productive of considerable impairment to his health. Finally, the VA examiners all noted that his hiatal hernia with GERD had no impact on his ability to work. It stands to reason that a disability that was productive of considerable impairment to health would have at least some impact on one's ability to work.

Consequently, as the Veteran does not have symptoms of a frequency and severity commensurate with a 30 percent rating, a rating in excess of 10 percent for hiatal hernia with GERD is not warranted for the entire period on appeal, and his claim must be denied.

OTHER CONSIDERATIONS

The Board recognizes the Veteran's sincerely held belief that his symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau, supra; Layno, supra; see also Buchanan, supra. However, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. 

The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disabilities, and has in fact granted staged ratings herein; however, the Board finds that his symptomatology has otherwise been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted.  

In reaching this decision, the Board has resolved all doubt in the Veteran's favor, which has resulted in partial grants of increased ratings. However, insofar as the Board has denied higher or separate ratings herein, the preponderance of the evidence is against such aspects of the Veteran's claims for higher ratings, and as such, the benefit of the doubt doctrine is not applicable. Consequently, the claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for a low back disorder.

2. Entitlement to service connection for a left hip disorder.

3. Entitlement to service connection for a right hip disorder.

The Veteran contends that he has current low back and bilateral hip disorders, which, as relevant, are caused or aggravated by his service-connected knee disabilities, and thus service connection is warranted. Unfortunately, the Board finds a remand is necessary in order to obtain an adequate opinion regarding whether such disabilities were aggravated by the service-connected knee disabilities. 

In this regard, the Board remanded these issues in January 2019, in part, to provide a VA examination and opinion regarding whether the low back and hip disorders were caused or aggravated by the knee disabilities. In December 2019, the Veteran underwent VA examinations for these disorders, and the VA examiner provided an etiological opinion. The opinion is inadequate for two reasons.

First, the examiner did not find a left hip disability existed at the time of examination, and therefore did not include the left hip in the rationale for the etiological opinions. However, the Board notes that the Veteran has been diagnosed with left hip conditions during the pendency of the appeal including a left hip strain, bursitis, and degenerative joint disease at a June 2013 VA examination. Consequently, an opinion is necessary to determine the nature and etiology of the Veteran's diagnosed left hip disorder.

Second, the examiner opined that the disorders were not caused or aggravated by the service-connected knee disabilities. However, the rationale for such opinion is not adequate pertaining to aggravation. Notably, the December 2019 examiner referenced a June 2013 opinion which did not include reference to aggravation. The opinion had a rationale that the low back and hip disorders were separate conditions and unrelated to the knee disabilities. The December 2019 examiner merely stated a concurrence with tis opinion. However, while the rationale notes they are distinct conditions and unrelated, it does not explain whether compensation for the knee disabilities can affect the progression of the low back and hip disabilities. Further, the examiner explained that the low back disorder was common in people of the Veteran's age. Again, this rationale speaks to causation only. 

Additionally, the examiner stated that the medical literature supports that it is highly unlikely that a "mild or moderate degree of limping over a relatively short period of time would have a major detrimental effect on the opposite lower extremity." Notably, the Veteran has been service-connected for left and right knee disabilities since 1996 and 1997 respectively. The examiner did not explain how a period of over 22 years is considered "relatively short."

Therefore, a remand is necessary in order to obtain an adequate opinion concerning whether the claimed low back and bilateral hip disorders were aggravated by the service-connected knee disabilities.

4. Entitlement to a TDIU is remanded.

The Veteran's claim for a TDIU is inextricably intertwined with the service connection claims remanded herein as the outcome of such may impact that nature of his service-connected disabilities. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the Veteran's TDIU claim must be deferred pending the development and readjudication of the other claims remanded herein.

The matters are REMANDED for the following action:

1. Forward the record to an appropriate VA clinician for a medical opinion pertaining to the etiology of the claimed low back and bilateral hip disorders. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the selected clinician.

(A) Identify all current low back, left hip, and right hip disorder diagnoses the Veteran has had proximate to the period on appeal.

(B) For each low back, left hip, and right hip disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is aggravated by his service-connected bilateral knee disabilities.

For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.

A rationale for any opinion offered should be provided. 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonathan M. Estes

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.