Citation Nr: 21032602 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-28 792A DATE: May 27, 2021 ORDER Entitlement to service connection for a skin disability, including basal cell carcinoma, squamous cell carcinoma, and actinic keratosis, is denied. Entitlement to service connection for a respiratory disability, including chronic obstructive pulmonary disease (COPD), is denied. Entitlement to an initial rating in excess of 10 percent for Barrett's esophagus with gastroesophageal reflux disease (GERD) is denied. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to an initial rating in excess of 20 percent for right knee instability is denied. REFERRED In the September 2017 Board decision and remand, the Board referred the issues of entitlement to a separate compensable rating for left knee instability and for additional compensation for a dependent. It does not appear that these issues have yet been addressed by the Agency of Original Jurisdiction (AOJ), so they are again referred to the AOJ for adjudication. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a skin disorder, including basal cell carcinoma, squamous cell carcinoma, and actinic keratosis, that was incurred in service or that is related to his active duty service, including his presumed exposure to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran has a respiratory disorder, including COPD, that was incurred in service or that is related to his active duty service, including his presumed exposure to herbicide agents. 3. The Veteran's Barrett's esophagus with GERD not manifested with substernal, arm, or shoulder pain, and has not been found to be productive of considerable impairment of health. 4. The Veteran's right knee osteoarthritis has not manifested with flexion limited to 45 degrees or extension limited to 20 degrees. 5. The Veteran's right knee instability has never been found to be at least severe. 6. The Veteran has not been found to have a complete ligament tear or undergone surgery for a patellofemoral or ligament disorder, and he has not been prescribed an assistive device, such as a cane, crutch, or walker, in addition to his braces, to assist with knee instability. 7. The Veteran does not have semilunar dislocated cartilage with frequent episodes of locking, pain, and effusion, or symptomatic removal of the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for an initial rating higher than 10 percent for Barrett's esophagus with GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.21, 4.113, 4.114, Diagnostic Code 7346. 4. The criteria for a rating higher than 10 percent for right knee osteoarthritis based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. 5. The criteria for an initial rating higher than 20 percent rating for right knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5258 (2020), (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1959 to July 1982, including service in the Republic of Vietnam. This case comes to the Board of Veterans' Appeals (Board) from October 2011 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In September 2017, the Board reopened the claims for service connection for a skin disorder and a respiratory disorder and remanded the issues for further development. In January 2021, these issues were again remanded by the Board. The Board notes that the January 2021 Board remand erroneously listed the issue of entitlement to a rating in excess of 10 percent for left knee osteoarthritis, as this issue was dismissed by the Board in September 2017, and is no longer part of the current appeal. The Veteran attended a Board hearing before a Veterans Law Judge in July 2017. In April 2021, the Veteran was notified that the Veterans Law Judge who held the hearing was no longer employed by the Board. The Veteran responded that he did not wish to appear at another Board hearing. Skin Disorder The Veteran contends that he has squamous cell carcinoma on his face, back, and arm that was caused by exposure to herbicide agents in Vietnam. At a July 2017 Board hearing, the Veteran discussed how he has had numerous skin lesions removed, and that one was diagnosed as melanoma. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The law establishes a presumption of entitlement to service connection for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease in service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). While certain types of cancer are included in this group, it does not include melanoma, squamous cell carcinoma, or basal cell carcinoma. 38 C.F.R. § 3.309(e). Even when a disease is not listed among the presumptive disorders associated with herbicide agents, service connection may be established on a direct basis when there is probative medical evidence linking a veteran's disorder to such exposure. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Veteran's VA and private treatment records show that the Veteran has a history of cancerous skin lesions. A June 2008 biopsy found that the Veteran had squamous cell carcinoma and actinic keratosis on his scalp and temple. In July 2008 he had a lesion excised from his left temple, which was found to be squamous cell and basal cell carcinoma. In September 2008, January 2009, and February 2009, he had additional lesions removed from his face. In July 2011, he was treated for actinic keratosis on his arm and squamous cell carcinoma on his forehead. He was again treated for basal cell carcinoma and squamous cell carcinoma in October 2012, April 2013, October 2013, November 2015, January 2016, and May 2017. In April 2014, August 2014, May 2015, November 2015, January 2016, May 2016, September 2016, and November 2017, shave biopsies found traumatized actinic keratosis and seborrheic keratosis. While the Veteran does have a current diagnosis of recurring actinic keratosis, squamous cell carcinoma, and basal cell carcinoma, the preponderance of the evidence does not indicate that these disorders were incurred in service or are related to any event or injury in service, including the Veteran's presumed exposure to herbicide agents. The Veteran's service treatment records show that he was treated for contact dermatitis in April 1974 and for an epidermal cyst in December 1971, July and August 1976, September 1974, April 1977. There is no indication, however, that the Veteran was ever found to have a skin lesion related to any type of skin cancer. The Veteran attended a VA examination in January 2020. The examiner found that the Veteran did have a history of basal cell carcinoma, squamous cell carcinoma, actinic keratosis, and lentigo. The Veteran reported that he was first diagnosed with skin lesions in the mid-1980s. He did not recall whether he had skin lesions in service. The examiner opined that the Veteran was less likely as not to have skin cancer caused by or a result of a skin condition during service. She explained that the medical literature showed the actinic keratosis was a cutaneous lesion that resulted from the proliferation of atypical epidermal keratinocytes, and represented early lesions on a continuum with squamous cell carcinoma. She wrote that these lesions are most commonly detected in adults with fair skin, and that chronic sun exposure was a major risk factor for the development of these lesions, which accounted for their usual detection on sun-exposed areas, like the face. She wrote that the medical literature was silent for an association between actinic keratosis and either epidermal cysts or herbicide agents. She also wrote that it would be with resort to mere speculation to state that sun exposure in service was a greater risk factor than sun exposure before or after service. She also found that there was no evidence to support a diagnosis within one year of separation from service, as the earliest evidence of such a lesion was in 2008. She acknowledged that the Veteran noticed a skin lesion on his right forehead that would come and go and that he thought was acne, and that while it was in the realm of possibility that this lesion was associated with actinic keratosis, it was still not at least as likely as not that it was. The VA examiner provided an addendum medical opinion in May 2020. When asked to discuss further whether the Veteran's skin disorder was related to herbicide agents, she wrote that it was less likely than not that the condition was incurred in or caused by service. She explained that review of the medical literature was silent for an association between actinic keratosis and herbicide agents, and that the Veteran's basal/squamous cell carcinomas were common cancers arising from skin cells for which the likelihood of developing them is dependent upon exposure to ultraviolet light, as well as patient-specific characteristics, such as age, skin type, and ethnicity. The Board also finds that the VA examiner's statement that it would require resort to speculation to opine on whether the Veteran's sun exposure in service was a greater risk factor than sun exposure before or after service is reasonable and a legitimately inconclusive opinion. It is clear from the context and the opinion overall that such inability was not based on an uninformed opinion, but reflected an assessment arrived at following a diligent question for relevant information. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board finds the January 2020 opinion to be highly probative evidence which weighs against the claim. It was written by a competent advanced practice registered nurse who had reviewed all of the medical records, including consideration of the Veteran's lay assertions, and performed an in-person examination of the Veteran. She provided adequate rationale, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore finds that the most probative medical evidence of record indicates that the Veteran's actinic keratosis, which is the start of a cancerous lesion, and his cancerous lesions, including squamous and basal cell carcinoma, are not related to his service. There are no other contradictory medical opinions of record. The Board notes that while the VA examiner did not address melanoma specifically, she did not find that the Veteran had a diagnosis of melanoma, nor is this reflected in his treatment records. She did, however, adequately explain that the actinic keratosis that the Veteran had removed was the start of what would develop into skin cancer, and her opinion adequately encompasses the Veteran's prior diagnosis of actinic keratosis as well as squamous and basal cell carcinoma. While the Veteran may believe that his skin lesions, including squamous and basal cell carcinoma, are caused by exposure to herbicide agents like Agent Orange, unfortunately he is not considered competent to provide such a complex medical opinion. Lay evidence can be sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Providing an opinion on the etiology of complex skin disorders like basal and squamous cell carcinoma requires medical expertise, and the Veteran's assertions regarding his skin lesions is outweighed by the more probative May 2020 VA medical opinion. In sum, the most probative evidence preponderates against finding that the Veteran had a skin disorder, including actinic keratosis, squamous cell carcinoma, and basal cell carcinoma, that was incurred in service or that is related to any event or injury in service, including the herbicide agent exposure. Entitlement to service connection for a skin disorder is denied. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory Disorder The Veteran also contends that he has COPD which either began in service or which is related to his service, including exposure to herbicide agents. At a July 2017 Board hearing, the Veteran's representative asserted that the Veteran had been treated for COPD while he was still in service. He said that since 1973 or 1974, he had noticed sometimes having trouble breathing. He said that he could not remember if he was treated for this in service, and that after service he started receiving treatment in the 2000s. The Veteran's child wrote in June 2020 that the Veteran had severe breathing issues when they were living in Puerto Rico and at Camp Lejeune, and that the symptoms continued to progress over time. Another statement submitted in June 202 stated that when the Veteran returned from Vietnam he had trouble breathing, and had trouble walking around and mowing the grass. The Veteran's VA and private treatment records show that he does occasionally report shortness of breath and a current diagnosis of COPD. A September 2005 chest X-ray was suspicious for mild chronic obstructive lung disease. It was noted that the Veteran had increased shortness of breath with exertion, and a 20-pack year smoking history. In June 2009, he reported having progressive dyspnea on exertion. The Veteran's VA treatment records show a diagnosis of COPD since May 2009. An April 2011 chest X-ray found chronic obstructive lung disease. Imaging in 2019 also showed ground glass nodules on the Veteran's lungs. A VA medical examination with opinion was obtained in January 2020. The examiner found that the Veteran had a diagnosis of COPD, which required use of inhaled medication. The examiner reviewed the claims file, but concluded that it was less likely as not that the Veteran's COPD was the result of service. She explained that COPD was diagnosed 30 years after service, and although the Veteran reported having dyspnea on exertion during service, this is not the same as a diagnosis of COPD. She explained that dyspnea is a symptom and not a diagnosis, and the Veteran's history also included season allergies and tobacco use. She wrote that the actual cause of the Veteran's deported dyspnea during the 1970s therefore could not be selected from multiple potential causes without resort to mere speculation. She wrote that there was no record of a respiratory diagnosis until 2005, which is 30 years later. She also wrote that there was no association found in the medical literature between airflow obstruction and herbicide agent exposure. The Board finds the January 2020 VA medical opinion to be highly probative evidence which weighs against the claim. It was written by a competent medical professional who had reviewed all of the medical records, including consideration of the Veteran's lay assertions and performed an in-person examination of the Veteran. She provided adequate rationale, explaining that the Veteran had other risk factors for COPD and symptoms of shortness of breath. While the examiner acknowledged the Veteran's reports of having shortness of breath in service, she explained that such symptoms could have other causes, such as allergies and tobacco use. The facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board therefore finds that the most probative medical evidence of record indicates that the Veteran's COPD is not related to his service, and there are no other probative medical opinions which disagree with this finding. The Board acknowledges that the Veteran submitted two statements in June 2020 from people who knew the Veteran when he was still in the service and when he returned from Vietnam. They wrote that the Veteran had shortness of breath while he was still in service, and that it made activities like mowing the lawn and walking more difficult. While these statements were received after the VA examiner provided her opinion, the Board does not find that these opinions detract from the probative value of the January 2020 opinion. The VA examiner was already aware that the Veteran had symptoms of dyspnea in service, and she acknowledged these symptoms and discussed that they had other likely etiologies. The Board therefore finds the information in the June 2020 statements to be essentially duplicative. The Board is also unable to afford any probative weight to the assertion of the Veteran's prior representative, who stated at a July 2017 Board hearing that the Veteran had been treated for COPD while he was still in service. It is not clear why the representative made this assertion, because the Veteran himself has asserted only that he had shortness of breath in service. The service treatment records do not show any diagnoses of COPD, and the Veteran's private treatment records show that only many years after service, a September 2005 chest X-ray was suspicious for mild chronic obstructive lung disease, which is the first indication of a possible COPD diagnosis. The Board therefore finds the representative's statement not to be credible in light of the other, more probative contemporaneous evidence of record. While the Veteran may believe that his COPD began with shortness of breath in service, unfortunately he is not considered competent to provide such a medical opinion, and his assertion is outweighed by the findings of the January 2020 VA examiner. See Jandreau, 492 F.3d at 1377. The Veteran is competent to state that he had feelings of shortness of breath in service, but this does not establish a diagnosis of COPD or other respiratory disorder, and the evidence shows that such a disorder was not diagnosed until many years after the Veteran's separation from service. In sum, the most probative evidence preponderates against finding that the Veteran had a respiratory disorder, including COPD, that was incurred in service or that is related to any event or injury in service, including the Veteran's presumed exposure to herbicide agent exposure. Entitlement to service connection for a respiratory disorder is denied. The Board has again considered the doctrine of reasonable doubt, but the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. 49. Barrett's Esophagus with GERD The Veteran has been assigned a 10 percent evaluation for Barrett's esophagus with GERD since April 29, 2013. At a July 2017 Board hearing, the Veteran testified that he had two ablations to treat his Barrett's esophagus and would soon be undergoing another one. He said that it caused severe burning from his stomach and regurgitation, and that he takes medicine to help control it. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diseases of the digestive system are rated under 38 C.F.R. § 4.114. GERD and Barrett's esophagus are not diseases specifically listed in the rating schedule. They are instead rated by analogy to a listed disorder, based on the functions affected, anatomical localization, and symptomatology. 38 C.F.R. § 4.20. The provisions of Diagnostic Code 7346, for evaluation of a hiatal hernia, have been applied here. Under Diagnostic Code 7346, hiatal hernia is assigned a 10 percent rating with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Board has reviewed all of the evidence of record, and finds that a rating higher than 10 percent rating is not warranted. While the evidence shows that the Veteran had recurrent epigastric distress with pyrosis (heartburn) and regurgitation, he has denied dysphagia for the majority of the appeal period; he has never been found to have substernal, arm, or shoulder pain; or been found to have symptoms that are productive of considerable impairment of health. The Veteran attended a VA examination in April 2014. He reported having symptoms of heartburn and acid reflux. He said that he had nocturnal symptoms that awakened him occasionally. The examiner found that the Veteran did take medication to manage his condition, and his symptoms included dysphagia, pyrosis, sleep disturbance caused by esophageal reflux, and reflux. The symptoms occurred 4 or more times a year. The Veteran also attended a VA examination in January 2020, and an addendum medical opinion was obtained in May 2020. At the examination, the Veteran reported that he had symptoms of pyrosis (heartburn), reflux, and regurgitation. The examiner provided an VA addendum opinion in May 2020, the examiner clarified that the Veteran did not have any reports of sleep disturbance or dysphagia at the January 2020 VA examination. The examination also did not find any substernal, arm, or shoulder pain or considerable impairment of health. She wrote that the symptoms of regurgitation, reflux, and pyrosis were persistently recurrent, but had improved from daily to once or twice a month. The Veteran's VA and private treatment records show ongoing treatment for heartburn and that his Barrett's esophagus condition has been followed, but there is no indication that he has had symptoms that would warrant a higher rating. In January 2014, the Veteran reported having heartburn, but with no radiation of pain. Symptoms were relieved by antacids and included dyspnea and sore throat. He did not have choking, cough, dysphagia, nausea, vomiting, reflex, or weight loss. In March and June 2014, the Veteran reported that he had heartburn, but the symptoms from his Barrett's esophagus were improving. His symptoms were aggravated by bending over and with large meals, and his symptoms included reflux. He did not have hoarseness, nausea, vomiting. There was no mention of any chest pain or dysphagia. The Veteran reported similar heartburn symptoms in December 2014, with occasional reflux. In January 2017, the Veteran reported having severe heartburn, but he did not have dysphagia. In March 2017, the Veteran reported having moderate heartburn. The Veteran did not have dysphagia, nausea, reflux, sore throat, vomiting, or weight loss. In June 2017, the Veteran denied heartburn or dysphagia. In November 2017, the Veteran reported that his heartburn was severe and had recently worsened, but he did not have dysphagia. This evidence indicates that the Veteran has had heartburn and reflux, and the April 2014 VA examiner indicated that the Veteran had dysphagia, although this does not actually appear to be supported by all of the evidence of record, which shows that the Veteran repeatedly denied having dysphagia. Nonetheless, even with this symptom included, the Veteran has not met the criteria for a higher 30 percent rating, as his Barrett's esophagus with GERD has never been found to cause substernal or arm or shoulder pain or to be productive of considerable impairment of health. In the absence of these other symptoms, and with the symptom of dysphagia being found only at one VA examinations, and absent throughout all of the other evidence, the Board does not find that the criteria for a higher 30 percent rating has been more nearly approximated. The Board does not dispute the credibility of the statements from the Veteran regarding having discomfort, pain, and reflux related to his Barrett's esophagus with GERD. See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). These statements have been considered, and they are part of the reason why he has been assigned a 10 percent rating. In sum, the Board finds that a rating higher than 10 percent is not warranted at any time during the appeal period. In reaching this conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine, but finds that the preponderance of the evidence is against the assignment of a higher rating. See 38 U.S.C. § 5107(b). Right Knee Osteoarthritis The Veteran has also requested increased ratings for his right knee osteoarthritis and instability. He has been assigned a 10 percent rating for right knee degenerative joint disease/osteoarthritis since December 15, 2008. In February 2014, the Veteran, through an attorney, requested an increased rating for his knee disorder. In a June 2014 rating decision, he was granted a separate 10 percent evaluation for right knee instability, effective June 13, 2014. At a July 2017 Board hearing, the Veteran reported that he now had a tear in the meniscus of his knee that caused additional instability. He stated that he sometimes has to grab onto something so that he doesn't fall, and that he has sharp pain. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The Veteran's right knee osteoarthritis was assigned a 10 percent rating under Diagnostic Code 5260. Range of motion of the knee is measured in flexion and extension. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of flexion of the leg allows for a 10 percent evaluation when it is limited to 45 degrees, a 20 percent evaluation when it is limited to 30 degrees, and a 30 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is evaluated as 10 percent disabling when extension is limited to 20 degrees, 20 percent disabling when extension is limited to 15 degrees, 30 percent disabling when extension is limited to 20 degrees, and an evaluation of 40 percent is assigned when extension is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. The amendments did not alter the rating criteria for evaluating knee extension and flexion under Diagnostic Codes 5260 and 5261. Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Symptomatic removal of the semilunar cartilage is assigned a rating of 10 percent. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is assigned a rating of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Additionally, the Veteran's right knee instability has been separately rated at 10 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020), slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5257 was substantially revised in 2021. Under the revised regulations, recurrent subluxation or lateral instability is assigned a 10 percent rating when there is sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (cane, crutch, walker) or bracing for ambulation. A 20 percent rating is assigned when there is sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, or an unrepaired or failed repair of complete ligament tear causing persistent instability; and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned when there is unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). A 10 percent rating is also assigned when there is a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription from a medical provider for a brace, cane, or walker. Id. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1). Higher ratings of 20 percent and 30 percent can also be assigned when there has been a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, but in this case, the Veteran has not undergone surgical repair for the patellofemoral complex. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Evaluations for knee impairment can also be assigned due to ankylosis, malunion/nonunion of the tibia and fibula, or genu recurvatum. The Veteran has not at any time during the appellate term been found to have these disorders; these diagnostic codes are therefore not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Arthritis (degenerative joint disease) can also be assigned a primary evaluation under Diagnostic Code 5003. When the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each major joint or group of minor joints. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran has already been assigned at least 10 percent or higher; this diagnostic code would not allow for any higher rating, and will not be further discussed. The Veteran attended a VA examination in June 2014. The Veteran had right knee flexion to 100 degrees, with pain at 80 degrees, and extension to 10 degrees, with pain at 20 degrees. The Veteran was not able to perform repetitive use testing because it was too painful. The Veteran reported having flare ups that caused increased pain after physical activity, kneeling, or standing for 30 minutes. The Veteran was having a flare at the time of the examination. The examiner found that the Veteran had bilateral excess fatigability and pain on movement, and right knee weakened movement, swelling, instability or station, and disturbance of motion. There was tenderness or pain to palpation in both knees. The right knee had medial-lateral instability. There was no recurrent patellar subluxation or dislocation. The Veteran did not have any meniscal conditions. The Veteran used braces on both knees. The Veteran also attended a VA examination in January 2020. The Veteran reported having constant aching pain and using knee braces. Range of motion testing found right knee flexion to 110 degrees and extension to 0 degrees. There was pain on examination and with weight-bearing, but no localized tenderness or crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner found that the examination was consistent with repeated use over time, and based on the subjective reporting of the Veteran, found that his would cause flexion to 105 degrees and extension to 0 degrees. He wrote that pain began at 90 degrees of flexion and extension. The Veteran did not report having flare ups. The knee had full strength and no atrophy or ankylosis. There was no recurrent subluxation. Joint stability testing found lateral instability of 2+. The examiner found that the Veteran did have a meniscal condition, as an MRI had found meniscal tears in the right knee. The Veteran's treatment records show that he has been diagnosed with advanced degenerative arthritis in his right knee. In October 2013, the Veteran received knee injections and was noted to have full range of motion and no instability. In January 2014, the Veteran attended physical therapy for his knees, and was noted to have full range of motion and normal gait and strength. No instability was seen. In February, May, and August 2014, the Veteran received injections into his knees. He was noted to have full range of motion and normal stability. In July 2014, he reported that his knee pain had increased about 6 months earlier. Range of motion testing in July 2014 found flexion to 112 degrees and extension to 7 degrees. In October 2014, the Veteran reported knee pain that was worse with walking and stairs. Range of motion testing found flexion to 104 degrees and extension to 7 degrees. There was mild swelling and effusion. He reported aching, sharp, and throbbing pain in his knee in November 2014. In March 2015, he reported knee pain that was occasional and fluctuating. In September 2015, the Veteran was treated for knee pain with joint instability and tenderness. In December 2015, March 2016, and June 2016, he reported knee pain with swelling and weakness. In September 2016, the Veteran was noted to have decreased mobility, joint tenderness, locking, and swelling, but no joint instability. In June 2015, the Veteran reported that his right knee pain was worsening. There was no crepitus, locking, or numbness, but there was joint instability and tenderness. In December 2016, the Veteran reported right knee pain, decreased mobility, joint tenderness, and weakness. At a VA appointment that month, the Veteran reported continued knee pain. He had full range of motion, without crepitus or effusion. In February and March 2017, he reported having intermittent aching pain in his knee that was aggravated by stairs, movement, walking, and standing. He had decreased mobility, nocturnal awakening, and weakness. He was noted to have symptoms of crepitus, decreased mobility, joint tenderness, and swelling. There was no instability. The Veteran reported using a brace for stability and support. A September 2017 X-ray found tricompartmental osteoarthritis in the medical compartment. There was mild swelling, tenderness, and positive Anterior Drawer test. Testing performed in 2015, 2016, and 2017 found tenderness and mild swelling, but no crepitation. On multiple occasions, anterior Drawer testing was positive, 1+. Range of motion was active flexion to 121 degrees and extension to -3 degrees. He was found to have a complex tear of the lateral meniscus. In November 2020, it was noted that the Veteran was working in his yard and playing fold, and he affirmed that he had a very active lifestyle. Based on a review of the record, the Board finds that a rating higher than 10 percent for right knee osteoarthritis is not warranted. At no time was the Veteran found to have flexion limited to 45 degrees, even when considering painful motion, repetitive motion, and flare ups. At all VA examinations and VA and private treatment evaluations, the Veteran's flexion was well above 45 degrees, which does not allow for a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran was also generally found to have extension of less than 10 degrees. The only examination which found that the Veteran had extension to a compensable degree was at the June 2014 VA examination, which found extension to 10 degrees, with pain at 20 degrees. This examination appears to be an outlier, because VA and private treatment records from this same period of time show much less restriction of motion in the right knee. In January, February, May, and August 2014, the Veteran was noted to have full range of motion. Range of motion testing in July 2014 found flexion to 112 degrees and extension to 7 degrees. In October 2014, range of motion testing found flexion to 104 degrees and extension to 7 degrees. However, the Veteran did report that he was having a flare up at the time of the June 2014 VA examination, and flare-ups must be considered when evaluating additional functional loss from range of motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore the Board accepts that this greater level of impairment can be accepted as the Veteran's impairment level during flare ups for the entire period on appeal, and the 10 percent rating for limitation of extension is appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board notes that the Veteran denied having flare ups at the January 2020 VA examination, nad therefore it is not an error for the examiner to have not provided an estimate of range of motion during flare ups. Although the June 2014 VA examiner found that there was pain at 20 degrees, the Board does not find that this requires a higher rating of 20 percent. The Board considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell, which address functional loss due to symptoms such as pain. However, while the Veteran experienced pain at 20 degrees of extension, there is no indication that the Veteran has ever been actually prevented from extending his knee to 20 percent, and an increased evaluation must be based on actual functional loss. The Veteran has also already been assigned a 10 percent rating, which is higher than the minimum evaluation for loss of knee range of motion, and in the absence of evidence that painful motion, including after repetitive motion or during flare ups, have caused further restricted motion, a higher rating is not warranted. Without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually or effectively limit flexion or extension of the knee to such an extent as to warrant assignment of a higher rating. Regarding the Veteran's right knee instability, the Board also does not find that a rating higher than 20 percent can be assigned. The Board acknowledges that the VA and private treatment records show varying reports of instability, the Veteran has credibly asserted throughout the appeal period that he feels he has problematic instability in his right knee that has caused him to almost fall and which requires the use of braces on his knees. The records also show that he has required regular use of a knee brace, prescribed by his treating physician. The January 2020 VA examiner found more than the minimum level of instability, indicating lateral instability of 2+ (5-10 millimeters). While this does indicate that the Veteran has at least a moderate level of instability, the evidence does not show, that his instability has ever been "severe." He continues to be able to walk independently and his knee braces are able to assist with stability. There are frequent treatment records where the Veteran was actually not found to have any instability, and there have been no indications that the Veteran has actually had falls or impairment of walking due to joint instability. While the Veteran has reported not being able to walk for long distances, this has been reported as being due to pain and fatigue, and not due to his knee instability. He has also never been found to have the highest level of instability on testing, which would be 3+ (10-15 millimeters). The Board therefore finds that the condition is not "severe," a rating higher than 20 percent is not warranted under the prior version of the rating criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Since February 7, 2021, when the regulations were revised, the Board also finds that a rating higher than 20 percent is not warranted for right knee instability under the new regulations. The Veteran has not been found to have a complete ligament tear, and he has not been prescribed an assistive device, such as a cane, crutch, or walker, in addition to his braces, to assist with knee instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Lastly, the Board finds that while the Veteran has been found to have a meniscus tear in his right knee, he has not been found to have dislocated semilunar cartilage which causes frequent episodes of locking, pain, and effusion, and he has not had removal of the semilunar cartilage. While the Veteran has been noted to have pain and effusion, these symptoms have been associated with his osteoarthritis and not specifically with any cartilage disorder, and the Board does not find that these symptoms alone indicate that an additional separate rating should be assigned. A separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5258 is therefore not warranted. The Board notes that Veteran's VA treatment records show that he has considered getting a right knee replacement, but in March 2020 it was noted that this surgery was postponed, and still appears to have been postponed as of the start of 2021. If the Veteran does have right knee replacement surgery, he is advised to notify VA, so that his right knee disorder can be reevaluated and rated accordingly. In sum, the Board finds that the preponderance of the evidence indicates that a rating higher than 10 percent for right knee osteoarthritis, due to limitation of extension or flexion, is not warranted, and a higher rating of 20 percent, but no higher, for right knee instability can be assigned. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, but the preponderance of the evidence is against any higher ratings than those now assigned. See 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.