Citation Nr: 21032191 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-12 369 DATE: May 26, 2021 ORDER Entitlement to service connection for insomnia is denied. Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 10 percent for residuals of traumatic right knee injury with degenerative joint disease is denied. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of traumatic right knee injury with degenerative joint disability, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's insomnia is a symptoms of his service-connected posttraumatic stress disorder (PTSD) and non-service-connected sleep apnea, and is not a separate disability. 2. Throughout the appeal period, the Veteran had, at worst, Level I in both ears. 3. Throughout the appeal period, the Veteran's residuals of traumatic right knee injury with degenerative joint disease was manifested by pain and swelling and flexion limited to 130 degrees, at worst, with no objective evidence of ankylosis, instability, meniscal condition, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for service connection for insomnia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. 3. The criteria for a disability rating in excess of 10 percent for residuals of traumatic right knee injury with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5260-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970 and from September 1970 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky and Roanoke, Virginia, respectively. The Board remanded this case in November 2019 for further development. The Board is satisfied that there was substantial compliance with the prior remand with regards to the increase rating claims for bilateral hearing loss and traumatic right knee injury with degenerative joint disease and the service connection claim for insomnia. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran testified at a Central Office hearing before the undersigned in August 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for insomnia is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In a July 2014 lay statement, the Veteran reported that he had received treatment for depression, sleep disorder, and waking up at night and seeing things in the dark in Okinawa during service. He stated that he was currently suffering with these problems at various times. He was unaware of his problem until his wife woke him up for snoring loudly and jumping, jerking, and crying out in his sleep at night. At times, he would stop breathing while sleeping. In a July 2014 lay statement, the Veteran's wife reported that the Veteran did not "get much sleep" at night because he snored very loudly and jumped and moved a lot in bed. When he did fall asleep, he stopped breathing at times. Prior to his enlistment, the Veteran had been in excellent condition. In a Decision Review Officer Informal Conference Report, the Veteran reported that after a shortened second tour in Vietnam, he was sent to Okinawa where he was tested by a psychiatrist. He was treated for PTSD, insomnia, personality disorder, and sleep apnea through the VA medical center (VAMC). He had difficulties sleeping during service and believed that this could have been the beginning of his sleep apnea. At the August 2019 hearing, the Veteran reported that he had problems sleeping while stationed in Okinawa during service. He was sent to a psychiatrist who gave him medication. He was able to sleep, but still woke up. After service, he was diagnosed with sleep apnea and his doctor gave him medication to sleep at night. This medication helped, but the Veteran would still wake up. Further, he eventually stopped taking the medication due to the side effects. The Veteran reported that he still had difficulties sleeping sometimes. He slept with his sleep apnea machine, but would still wake up. The Veteran's wife reported that the Veteran both slept and did not sleep because he would toss and turn in his sleep. He would also wake up very early and try to go back to sleep, but he was not getting any rest. In a January 2020 VA examination, the Veteran was diagnosed with PTSD and his symptoms included, pertinently, chronic sleep impairment. The examiner found that the Veteran's sleep issues were due to the Veteran's sleep apnea and PTSD, diagnoses that were known to result in sleep disruptions. The examiner found that the Veteran did not meet the criteria for a separate diagnosis of insomnia outside of PTSD or sleep apnea. According to post-service private treatment records, the Veteran had insomnia and difficulties sleeping. In May 2014, the doctor felt that the main issue was insomnia, possible related to PTSD, and was uncertain whether the Veteran's treatment for sleep apnea would provide much benefit. The Veteran was assessed with mild obstructive sleep apnea and insomnia that was expected to be comorbid to underlying mood disorder and possibly PTSD. In April 2015, the doctor found that the Veteran's main sleep problem was longstanding chronic insomnia, which was often related to underlying psychological illnesses such as depression and PTSD. The doctor reviewed the Veteran's records and noted that he had a history of psychological illness. He suspected that it was highly probably that those issues were related to the Veteran's current insomnia symptoms. According to post-service VA treatment records, that the Veteran had been assessed with sleep apnea and reported insomnia since service. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for insomnia is warranted. In this regard, the Board finds that the evidence of record, to include the January 2020 VA examination findings which are consistent with post-service treatment records, Veteran's insomnia is a symptom of his service-connected PTSD and non-service-connected sleep apnea. As such, his insomnia is already contemplated by his 50 percent rating for PTSD. In the absence of competent evidence of a current diagnosis of a disability manifested by difficulties sleeping (other than the already service-connected PTSD), the Veteran has not presented a valid claim for service connection for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to report symptoms of disability, he does not have the specialized medical training to render a diagnosis of a separate and distinct disability manifested by difficulties sleeping. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the Veteran has not provided any other competent or credible evidence of the existence of a currently diagnosed sleep disorder, either during the appellate period or prior thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for insomnia. As the evidence does not establish that the Veteran has insomnia that is separate and distinct from, rather than a symptom of, his service-connected PTSD and non-service-connected sleep apnea, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). 1. Entitlement to a compensable disability rating for bilateral hearing loss is denied. The Veteran is seeking a compensable disability rating for his bilateral hearing loss. His bilateral hearing loss has been rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Where impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). In a September 2011 private treatment record, Dr. Queen stated that the Veteran was under his care for noise induced hearing loss. He compared a November 2009 audiogram to a July 2011 audiogram and stated that he saw worsening in the Veteran's hearing loss. On an authorized audiological evaluation in September 2012, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 20 20 15 LEFT 10 10 30 65 28.75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Application of 38 C.F.R. § 4.85 Table VI to the September 2012 measurements result in assignment of Roman Numeral I in both ears. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. In the September 2012 VA examination report, the examiner noted that the Veteran reported that he missed parts of conversations during social functions. On the authorized audiological evaluation in August 2013, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 5 10 30 14 LEFT 5 5 20 70 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. Application of 38 C.F.R. § 4.85 Table VI to the August 2013 measurements result in assignment of Roman Numeral I in both ears. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In the August 2013 VA examination report, the examiner noted that the Veteran reported that he could not hear his wife and that it sounded like people were whispering. He reported difficulty at church and watching television. He stated that he was reading lips. On the authorized audiological evaluation in April 2015, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 10 10 30 16.25 LEFT 15 10 30 65 30 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 72 percent in the left ear. Application of 38 C.F.R. § 4.85 Table VI to the April 2015 measurements result in assignment of Roman Numeral II in the right ear and IV in the left ear. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In the April 2015 VA examination report, the examiner noted that the Veteran reported that he was unable to ear. On the authorized audiological evaluation in January 2017, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 15 15 40 18.75 LEFT 5 10 30 65 27.50 Speech audiometry revealed speech recognition ability of 100 percent in both ears. Application of 38 C.F.R. § 4.85 Table VI to the January 2017 measurements result in assignment of Roman Numeral I in both ears. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In the January 2017 VA examination report, the examiner noted that the Veteran reported difficulty understanding people when they talked to him. He often needed things repeated and relied on lip reading to understand speech. He also had to turn up the volume on the television to hear better and some people thought he talked too loudly. At the August 2019 hearing, the Veteran reported that he had had an audiogram performed at Sam's Club which indicated that his hearing loss and increased in severity. He felt that the 2016 VA audiological examination was inadequate because he did not understand why he had to go to Elizabeth City, North Carolina. The Veteran reported having problems with his ears and issues with hearing, having to turn up the volume on the television and radio to the loudest, inability to hear his wife, and having hearing aids since 2016. The Veteran's wife stated that she thought the Veteran's hearing was getting worse because the Veteran could not hear her, turned up the television very loudly, and tried to read lips. She felt that his hearing loss had increased in severity since 2017. On the authorized audiological evaluation in January 2020, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 20 45 23.75 LEFT 10 15 40 70 33.75 Speech audiometry revealed speech recognition ability of 94 percent in both ears. Application of 38 C.F.R. § 4.85 Table VI to the January 2020 measurements result in assignment of Roman Numeral I in both ears. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In the January 2020 VA examination report, the examiner noted that the Veteran reported that he could hear, but also had sounds, voices, and noises he could not hear. In a September 2020 private audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 30 45 25 LEFT 10 15 45 70 35 Speech audiometry revealed speech recognition ability of 96 percent in both ears. In a subsequent September 2020 private treatment record, the Veteran reported difficulty hearing and tinnitus, but no ear pain, vertigo, ear pressure, or drainage/discharge. In an August 2013 VA treatment record, the Veteran reported difficulty hearing soft-spoken people, particularly women. He worked in the church and was embarrassed when he could not hear people. He felt like he was often reading lips. In a December 2016 VA treatment record, it was noted that the Veteran had gone for a hearing test somewhere in Hampton and had been told that his left ear hearing had was worse. It was noted that his puretones were unchanged and that he had speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding that a compensable disability rating for bilateral hearing loss is warranted. While the Board is sympathetic to the Veteran's contention that he has difficulty hearing and understanding noises, voices, sound, and speech, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing and understanding noises, voices, sound, and speech cannot be the basis for a compensable rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. Further, the Board notes that while the audiological evaluations, to include the September 2020 private audiogram, indicate that the Veteran's hearing had worsened, they do not show that it worsened to the extent that a compensable disability rating is warranted. The Board notes that the Veteran generally contended at the August 2019 hearing that the 2016 VA audiological examination (likely referring to the January 2017 VA audiological examination) was inadequate. However, the evidence of record, to include contemporaneous treatment records, does not show that the Veteran's hearing was worse than indicated in the January 2017 VA audiological examination. Further, the January 2017 VA examination was conducted by an audiologist, who is competent and qualified to assess the severity of hearing loss, and the Veteran has provided no further details as to why he believes his hearing was worse than reflected in the January 2017 VA examination. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a compensable disability rating is warranted. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 10 percent for residuals of traumatic right knee injury with degenerative joint disease is denied. The Veteran's left knee disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In this case, the hyphenated code indicates that the Veteran's disability is evaluated as limitation of flexion based on the criteria found under Diagnostic Code 5260. The Board notes that the schedular criteria for rating for the musculoskeletal system, to include the knee, have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board notes that, pertinently, Diagnostic Codes 5003, 5010, 5055, and 5257 were amended. The other rating criteria applicable to the knee have not been changed. Prior to February 7, 2021, Diagnostic Code 5003 provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Effective February 7, 2021, Diagnostic Code 5003 expressly excludes application to post-traumatic arthritis. The rest of the rating criteria remained unchanged. Prior to February 7, 2021, Diagnostic Code 5010 provided that arthritis due to trauma, substantiated by X-ray findings, should be rated as degenerative arthritis and referred to Diagnostic Code 5003. Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is now rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25. Prior to February 7, 2021, Diagnostic Code 5055 applied to knee replacement (prosthesis) and provides a 100 percent rating for one year following implantation of a prosthesis. After that, a minimum 30 percent rating was assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating was assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Effective February 7, 2021, Diagnostic Code 5055 applies to knee resurfacing or replacement (prosthesis) and provides a 100 percent rating for four months following the implantation of prosthesis or resurfacing. After that, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee), but only for a total replacement. A note is added that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under Diagnostic Codes 5256 through 5262 and expressly provides that there is no minimum evaluation for resurfacing. The criteria for a 60 percent rating remained unchanged. Prior to February 7, 2021, Diagnostic Code 5257 applied to knee recurrent subluxation or lateral instability and provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating was provided for moderate recurrent subluxation or lateral instability of the knee. A 30 percent rating was provided for severe recurrent subluxation or lateral instability of the knee. Effective February 7, 2021, Diagnostic Code 5257 applied to recurrent subluxation or instability and patellar instability. For recurrent subluxation or instability, a 10 percent rating is provided for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provide for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent rating is provided for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a 30 percent rating is provided for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. All other rating criteria for the knee, such as Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, and 5263, remained unchanged. As an initial matter, the Board notes that the Veteran was assigned a 10 percent rating for his right knee disability based on Diagnostic Code 5003 (via Diagnostic Code 5010) which provides for a 10 percent rating for arthritis with limitation of motion that is noncompensable. Effective February 7, 2021, Diagnostic Code 5010 is rated as limitation of motion, dislocation, or other specified instability under the affected joint and Diagnostic 5003 expressly precludes post-traumatic arthritis. As such, Diagnostic Codes 5003 and 5010 under the old regulation is more favorable to the Veteran. As such, the old version of Diagnostic Codes 5003 and 5010 will be applied for the entire appeal period. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is defined as from 0 degrees to 140 degrees (extension to flexion). 38 C.F.R. § 4.71a, Plate II. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004),69 Fed. Reg. 59990 (2005). Diagnostic Codes 5055, 5256, 5257, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate knee replacement surgery or resurfacing (Diagnostic Code 5055), ankylosis of the knee (Diagnostic Code 5256), a meniscal condition (Diagnostic Codes 5258 and 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Further, the Board finds that the evidence does not demonstrate recurrent subluxation, lateral instability, or patellar instability indicating that Diagnostic Code 5257 under either the old or new regulations does not apply. Thus, the Diagnostic Codes pertaining to such impairments are not applicable. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38C.F.R. §4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. In a February 2015 VA examination, the Veteran reported flare ups and described difficulty with prolonged sitting, standing, walking, and stooping, and bending. Upon initial range of motion testing, the Veteran's right knee had flexion to 140 degrees and extension to 0 degrees with no objective evidence of painful motion. Upon repetitive use testing, the examiner found no additional functional loss or loss of range of motion. The examiner found that there were no contributing factors of weakness, fatigability, incoordination, or pain during flare ups or repeated use over time that could additionally limit the functional ability of the knee. There was no tenderness or pain to palpation, reduction in muscle strength, joint instability, or meniscal condition. The Veteran did not use an assistive device. The functional impact included limited activity due to range of motion loss and/or pain during flare ups. In a January 2017 VA examination, the Veteran reported flare ups and described pain and decreased range of motion. Upon initial range of motion testing, the Veteran had right knee flexion to 130 degrees and extension to 0 degrees with no pain noted on examination. Upon repetitive use testing, the examiner found no additional functional loss or loss of range of motion. The examiner noted that the examination was conducted immediately after repeated use over time and during a flare up, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. An additional factor contributing to disability was less movement than normal. There was no tenderness or pain on palpation, reduction in muscle strength, muscle atrophy, ankylosis, instability, or meniscal condition. The Veteran did not use an assistive device. The examiner found no occupational impact due to the Veteran's knee disability. There was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. At the August 2019 hearing, the Veteran reported that he could not stand for a long time on his knee or bend down. He had to stretch out his leg to pick up anything from the floor. He was unable to walk when he stood for a long time. His knee would swell occasionally. He described his right knee pain as six to seven out of ten. He had flare ups and he would not be able to function. The Veteran's wife reported that the Veteran was unable to bend down. She also saw him often rubbing both knees and limping when walking. She stated that when the Veteran sat for a long time, he had to elevate his feet because his knee would swell. In a February 2020 VA examination, the Veteran did not report flare ups or any functional loss to include with over repeated use over time. Upon initial range of motion testing, the Veteran's right knee had flexion to 140 degrees and extension to 0 degrees. Pain was noted on extension, but this did not result in functional loss. Upon repetitive use testing, the examiner found no additional functional loss or loss of range of motion. The examiner noted that the examination was not being conducted immediately after repeated use over time or during flare ups, but found that pain, fatigue, weakness, lack of endurance, and incoordination did not significantly limit functional ability. Range of motion in the right knee immediately after repeated use over time and during flare ups was flexion to 140 degrees and extension to 0 degrees. There was no evidence of localized tenderness or pain on palpation, pain with weight bearing, crepitus, reduction in muscle strength, muscle atrophy, ankylosis, instability, or meniscal condition. There was no occupational impact due to the Veteran's knee disability. There was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. According to post-service private and VA treatment records from July 2014 to present, the Veteran had mild degenerative changes bilaterally. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the February 2015 and January 2017 VA examinations, the Veteran indicated that he had flare ups of his right knee disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the February 2015 and January 2017 VA examination reports did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion. In a January 2017 VA examination, the Veteran reported flare ups and described pain and decreased range of motion. Upon initial range of motion testing, the Veteran had right knee flexion to 130 degrees and extension to 0 degrees with no pain noted on examination. Upon repetitive use testing, the examiner found no additional functional loss or loss of range of motion. The examiner noted that the examination was conducted immediately after repeated use over time and during a flare up, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. An additional factor contributing to disability was less movement than normal. There was no tenderness or pain on palpation, reduction in muscle strength, muscle atrophy, ankylosis, instability, or meniscal condition. The Veteran did not use an assistive device. The examiner found no occupational impact due to the Veteran's knee disability. There was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. While the February 2015 and January 2017 VA examiners did not estimate functional loss during flare ups, the examiners expressly found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. Additionally, while the Veteran reported at the January 2017 VA examination that his flare ups included pain and decreased range of motion and the January 2017 examiner found no pain on examination even though it was conducted during a flare up, the examiner did find that the Veteran had decreased range of motion in right knee flexion. Thus, it appears that the flare up the Veteran experienced at the January 2017 VA examination was manifested by decreased range of motion and not pain. As the contemporaneous evidence indicates that the February 2015 and January 2017 VA examiners would not have found right knee flexion limited to at least 30 degrees or extension limited to at least 10 degrees, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's residuals of traumatic right knee injury with degenerative joint disease did not warrant a disability rating in excess of 10 percent under Diagnostic Codes 5260-5010. In other words, the Veteran's right knee disability did not manifest in flexion limited to at least 30 degrees or extension limited to at least 10 degrees. At most, the Veteran's flexion was limited to 130 degrees in the right knee. Additionally, a higher 20 percent rating under Diagnostic Code 5010 is not warranted as the evidence does not show occasional incapacitating exacerbations. The Board is sympathetic to the Veteran's reported knee symptomatology; however, there is no basis upon which to award a higher 20 percent disability rating for his right knee disability under Diagnostic Codes 5260-5010. As noted above, the Board has considered whether a separate disability rating is appropriate under another diagnostic code. However, the evidence does not demonstrate ankylosis of the knee, right knee instability, meniscal condition, impairment of the tibia and fibula, or genu recurvatum. As such, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 are not applicable. Thus, separate ratings for the Veteran's right knee disability under Diagnostic Codes 5256, 5257, 5262, and 5263 are not supported by the evidence of record. The Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 10 percent is warranted for the Veteran's residuals of traumatic right knee injury with degenerative joint disease. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 10 percent for residuals of traumatic right knee injury with degenerative joint disease under Diagnostic Codes 5260-5010 must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of traumatic right knee injury with degenerative joint disability, is remanded. In its November 2019 remand, the Board directed the VA examiner to determine the nature and etiology of the Veteran's left knee disability, to include whether it was cause or aggravated by the Veteran's service-connected right knee disability. In the February 2020 VA examination, the examiner opined that the Veteran's left knee disability was not caused or aggravated by his service-connected right knee disability, but this was not supported by an adequate rationale. In fact, the examiner only stated that there was no indication that the Veteran's left knee pain was in any way associated with his right knee discomfort with no supporting rationale. Additionally, the examiner's opinion primarily referred to the Veteran's left knee disability as left knee pain. As noted in the prior Board decision, July 2014 x-rays of the knees showed that the Veteran had mild degenerative changes in both knees. As such, a remand is warranted. The matters are REMANDED for the following action: Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's left knee disability. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination for his left knee disability. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed left knee disability is related to his active service. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed left knee disability is caused or aggravated by his service-connected right knee disability. All opinions expressed must be accompanied by complete rationale. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.