DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the United States Army from January 2008 to February 2009, and again from January 2012 to July 2022, appealed the denial of increased ratings for lumbar spine degenerative arthritis with lumbosacral strain and left knee strain, as well as service connection for a left ankle surgical scar and bilateral hearing loss. The Board denied the lumbar spine claim, finding the evidence did not support a rating higher than the current 10 percent, as the veteran's range of motion and symptoms did not meet the criteria for a higher evaluation. The left knee claim was denied because the evidence showed only a noncompensable limitation of extension and any rating for painful motion would constitute pyramiding. The left ankle surgical scar claim was denied as it was not associated with underlying soft tissue damage and was too small to warrant a compensable rating. Service connection for bilateral hearing loss was denied because the veteran's audiometric tests and word discrimination scores indicated normal hearing, and no in-service hearing loss was documented. However, service connection for right shoulder strain was granted. The Board found the VA examiner's opinion regarding the shoulder to be of low probative value, as it did not adequately address the veteran's reported symptoms or the presumption of aggravation. The claim for right knee strain was remanded for a new VA examination to determine the etiology and service connection, as the previous examination was inadequate.

Rationale

Evidence did not support rating higher than 10 percent; ROM measurements did not meet criteria for higher rating; No abnormal gait or spinal contour noted

Full Decision Text

Citation Nr: A25105989
Decision Date: 12/09/25	Archive Date: 12/09/25

DOCKET NO. 240917-474665
DATE: December 9, 2025

ORDER

Entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back) is denied.

Entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle) is denied.

Entitlement to an initial compensable rating for surgical scar, left ankle is denied.

Service connection for right shoulder strain is granted.

Service connection for bilateral hearing loss is denied.

REMANDED

Service connection for right knee strain is remanded.

FINDINGS OF FACT

1. The Veteran's lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back) does not more closely approximate forward flexion of the thoracolumbar spine not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

2. The most probative and persuasive evidence shows that the Veteran's left knee strain, limitation of extension (claimed as secondary to left ankle) at best meets the noncompensable limitation of motion to 5 degrees and a compensable rating based on pain on motion is not available as it already serves as the basis for a 10 percent rating based on limitation of flexion.

3. The Veteran's surgical scar, left ankle, is not associated with underlying soft tissue damage and does not measure 144 square inches (929 sq. cm.) or greater.

4. The evidence of record reflects symptoms in service and after separation from service sufficient to raise the presumption of aggravation and do not clearly and unmistakably show that the Veteran's pre-existing right shoulder disorder, diagnosed as shoulder drop, mild asymptomatic, was not aggravated by an in-service injury or as a result of an incident in service.

5. The Veteran has not been diagnosed with left or right ear hearing loss that meets the Department of Veterans Affairs (VA) disability standards.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

2. The criteria for entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

3. The criteria for entitlement to an initial compensable rating for surgical scar, left ankle have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7802.

4. The criteria for entitlement to service connection for right shoulder strain have been met.  38 U.S.C. §§ 1110, 1111, 1112, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 4.3.

5. The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from January 2008 to February 2009, and from January 2012 to July 2022.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 
, 3.306, 3.307, 3.309, 4.3.

5. The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from January 2008 to February 2009, and from January 2012 to July 2022.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 15, 2023, and February 7, 2024, Appeals Modernization Act (AMA) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ).

On September 17, 2024, the Veteran timely submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), to appeal the previously indicated rating decisions.  The Veteran requested the AMA evidence submission docket.  Through the Board's evidence submission docket, the Board may consider the evidence of record at the time of the rating decision on appeal, additional evidence submitted with the VA Form 10182 and additional evidence submitted within 90 days following receipt of the VA Form 10182.  38 U.S.C. §§ 5104C, 7105, 7113; 38 C.F.R. §§ 20.202, 20.303, 3.2500.

Increased ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained 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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or the illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-593 (1991).

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.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  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 disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

As pertains to noninitial increased rating claims, pursuant to the "look back" provisions of 38 C.F.R. § 3.400(o)(2), if it is factually ascertainable that an increase in disability occurred within the one-year period prior to the date of claim, the effective date can be the date the increase was shown.  Gaston v. Shinseki, 605 F.3d 979, 980-981 (Fed. Cir. 2010).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts
 of service connection is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

As pertains to noninitial increased rating claims, pursuant to the "look back" provisions of 38 C.F.R. § 3.400(o)(2), if it is factually ascertainable that an increase in disability occurred within the one-year period prior to the date of claim, the effective date can be the date the increase was shown.  Gaston v. Shinseki, 605 F.3d 979, 980-981 (Fed. Cir. 2010).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. §4.31.

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 and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202, 204 (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) (" [I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

In the case of Correia v. McDonald, 28 Vet. App. 158, 168 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weightbearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

1. Entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back) is denied.

The Veteran claims entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back).

The Veteran is currently assigned an initial 10 percent rating under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242, from July 2, 2022.  That is, from the day following separation from service.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 10 percent rating is
The Veteran claims entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back).

The Veteran is currently assigned an initial 10 percent rating under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242, from July 2, 2022.  That is, from the day following separation from service.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. at Note 2; Plate V.

In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2.  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  Id. at Note 3.

Each range of motion measurement must be rounded to the nearest five degrees.  Id. at Note 4.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note 5.

Disability of the thoracolumbar and cervical spine segments must be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id. at Note 6.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).

Turning to the evidence
; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note 5.

Disability of the thoracolumbar and cervical spine segments must be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id. at Note 6.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).

Turning to the evidence of record, in a February 2023 VA back examination, the Veteran was diagnosed with degenerative arthritis and lumbosacral strain.  The VA examiner noted the Veteran's reporting of low back pain, mid back pain.  Current treatment consisted of ibuprofen 800 mg tab as needed.  The Veteran reported flare-ups, moderate to severe, lasting minutes to hours, precipitated by lifting, anything.  Also, the Veteran reported functional loss, including but not limited to after repeated use over time, including difficulty lifting, bending, sitting and standing too long.  Initial ROM measurements were: Forward flexion endpoint (90 degrees): 80 degrees; Extension endpoint (30 degrees): 30 degrees; Right lateral flexion endpoint (30 degrees): 20 degrees; Left lateral flexion endpoint (30 degrees): 20 degrees; Right lateral rotation endpoint (30 degrees): 20 degrees; Left lateral rotation endpoint (30 degrees): 20 degrees.  Pain in ROM was noted on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation.  Passive ROM was noted as being the same as active ROM.  Pain was noted on weight-bearing, nonweight-bearing, active motion, passive motion, on rest/non-movement that caused functional loss, including difficulty lifting, bending, sitting and standing too long.  The Veteran was able to perform repetitive use ROM with at least three repetitions with no additional loss of function or range of motion after three repetitions.  Further, the Veteran was not examined immediately after repeated use over time.  Procured evidence suggested pain caused functional loss.  ROM after repeated use over time was estimated: Forward flexion endpoint (90 degrees): 75 degrees; Extension endpoint (30 degrees): 25 degrees; Right lateral flexion endpoint (30 degrees): 15 degrees; Left lateral flexion endpoint (30 degrees): 15 degrees; Right lateral rotation endpoint (30 degrees): 15 degrees; Left lateral rotation endpoint (30 degrees): 15 degrees.  Finally, the Veteran was not examined during a flare-up.  Procured evidence suggested pain that caused functional loss.  ROM during flare-ups was estimated: Forward flexion endpoint (90 degrees): 70 degrees; Extension endpoint (30 degrees): 20 degrees; Right lateral flexion endpoint (30 degrees): 10 degrees; Left lateral flexion endpoint (30 degrees): 10 degrees; Right lateral rotation endpoint (30 degrees): 10 degrees; Left lateral rotation endpoint (30 degrees): 10 degrees.

No other pertinent physical findings, complications, conditions, signs or symptoms were noted.

After due consideration, the Board finds that the evidence of record does not warrant an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back).  Particularly, the VA examiner thoroughly addressed and considered the Veteran's symptoms and statements and reported, even with flare-ups, an active ROM forward flexion endpoint of 70 degrees and a combined range of motion of the thoracolumbar spine of 130 degrees.

The Board notes that the evidence of record, within the applicable AMA evidentiary window, does not support a rating higher than 10 percent for the Veteran's service-connected disability during the period on appeal.

Particularly, 20 percent rating is not warranted because forward flexion of the thoracolumbar spine is not limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine is not limited to 120 degrees or less; there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is not warranted because forward flexion of the thoracolumbar spine is not limited to 30 degrees or less.  The Veteran also does not have favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is not warranted because the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a
 to 60 degrees or less and the combined range of motion of the thoracolumbar spine is not limited to 120 degrees or less; there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is not warranted because forward flexion of the thoracolumbar spine is not limited to 30 degrees or less.  The Veteran also does not have favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is not warranted because the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a 100 percent rating is not warranted because the Veteran does not have unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

Accordingly, entitlement to an initial rating higher than 10 percent for lumbar spine degenerative arthritis with lumbosacral strain (claimed as lower back and mid back) is denied.

2. Entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle) is denied.

The Veteran claims entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle).

The Veteran's is currently assigned a noncompensable (0 percent) rating under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of extension, from July 2, 2022.  That is, from the day following separation from service.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Disabilities of the knee are rated under Diagnostic Code 5256 through Diagnostic Code 5263 of 38 C.F.R. § 4.71a.

Under Diagnostic Code 5260, flexion limited to 60 degrees is noncompensable.  Flexion limited to 45 degrees warrants a 10 percent rating.  Flexion limited to 30 degrees warrants a 20 percent rating.  Finally, where flexion is limited to 15 degrees, a maximum 30 percent rating may be assigned.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent rating.  Extension limited to 10 degrees warrants a 10 percent rating.  Extension limited to 15 degrees warrants a 20 percent rating.  Extension limited to 20 degrees warrants a 30 percent rating.  Extension limited to 30 degrees warrants a 40 percent rating.  Finally, where extension is limited to 45 degrees, a maximum 50 percent rating may be assigned.  38 C.F.R. § 4.71a.

The normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees.  See 38 C.F.R. § 4.71 at Plate II.

Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities.  However, in this case, the evidence of record does not demonstrate ankylosis of the knee (Diagnostic Code 5256), recurrent subluxation or instability or patellar instability (Diagnostic Code 5257), dislocated semilunar cartilage (Diagnostic Code 5258), symptomatic removal of the semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263).  Thus, the Diagnostic Codes pertaining to such disorders are not applicable.

In a February 2023 VA knee examination, the Veteran was diagnosed with right and left knee strain.  The VA examiner noted the Veteran's reporting of onset of symptoms in 2000, after a left ankle fracture, when knees began to hurt, with initial symptoms including pain, and difficulty flexing.  Current symptoms were also reported, including pain, and loss of strength.  Further, use of ibuprofen medication was noted.  The Veteran did not report flare-ups.  However, he reported having functional loss, including but not limited to after repeated use over time, including difficulty bending, kneeling, squatting.  Initial ROM measurements for the left knee were: Flexion endpoint (140 degrees): 135 degrees; Extension endpoint (0 degrees): 0 degrees.  Pain was noted during flexion and extension.  Passive ROM was noted as being the same as active ROM.  Pain was noted with weight-bearing, nonweight-bearing, active motion, passive motion, and on rest/non-movement that caused
 and difficulty flexing.  Current symptoms were also reported, including pain, and loss of strength.  Further, use of ibuprofen medication was noted.  The Veteran did not report flare-ups.  However, he reported having functional loss, including but not limited to after repeated use over time, including difficulty bending, kneeling, squatting.  Initial ROM measurements for the left knee were: Flexion endpoint (140 degrees): 135 degrees; Extension endpoint (0 degrees): 0 degrees.  Pain was noted during flexion and extension.  Passive ROM was noted as being the same as active ROM.  Pain was noted with weight-bearing, nonweight-bearing, active motion, passive motion, and on rest/non-movement that caused functional loss, including difficulty bending, kneeling, squatting.  The Veteran was noted to be able to perform repetitive-use testing with at least three repetitions without additional loss of function.  The Veteran was not examined immediately after repeated use over time, but procured evidence suggested pain, fatigability, and lack of endurance which significantly limited functional ability with repeated use over time.  Estimated ROM measurements with repeated use over time were: flexion endpoint (140 degrees): 130 degrees; extension endpoint (0 degrees): 5 degrees.  The Veteran did not report flare-ups.  As such, no ROM estimates during his flare-ups were provided.

After due consideration, the Board finds that entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle) is not warranted.  Particularly, even with repeated use over time, ROM measurements only reached a limitation of motion for extension of 5 degrees; that is, a noncompensable limitation of motion for extension.  In addition, the Veteran while the Veteran may have been assigned a 10 percent rating, for limitation of extension, based on functional loss due to painful motion, the Veteran already has an initial 10 percent rating for left knee strain, limitation of flexion, based on pain on motion, and to use the same pain for a 10 percent rating based on limitation of extension would be prohibited as pyramiding.  

Finally, as previously indicated, diagnostic codes pertaining to other knee disorders are not applicable.

Thus, entitlement to an initial compensable rating for left knee strain, limitation of extension (claimed as secondary to left ankle) is denied.  

3. Entitlement to an initial compensable rating for surgical scar, left ankle is denied.

The Veteran claims entitlement to an initial compensable rating for surgical scar, left ankle.

The Veteran's is currently assigned a noncompensable (0 percent) rating under 38 C.F.R. § 4.118, Diagnostic Code 7802, from July 2, 2022.  That is, from the day following separation from service.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Under the rating criteria for skin disabilities, 38 C.F.R. § 4.118, certain diagnostic codes pertain to the evaluation of scar residuals.

Diagnostic Code 7800 contemplates scars of the head, face, or neck.

Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage.  Its criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters).  A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters).  A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters).  A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater.

Diagnostic Code 7802 provides rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  A 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. 

Note (1) of Diagnostic Codes 7801 and 7802 provides that: For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) for Diagnostic Codes
.

Diagnostic Code 7802 provides rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  A 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. 

Note (1) of Diagnostic Codes 7801 and 7802 provides that: For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) for Diagnostic Codes 7801 and 7802 provides: A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.

Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A 30 percent rating is warranted for five or more scars that are unstable or painful.  Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars.  Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable.

Under Diagnostic Code 7805, scars with disabling effects other than those evaluated under Diagnostic Codes 7800 through 7804 are to be rated under an applicable Diagnostic Code.

In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating have not been met.  38 C.F.R. § 4.31.

The Veteran underwent a VA scar examination in February 2023.  The VA examiner diagnosed the Veteran with left lateral ankle surgical scar.  Course of the scar was noted as "scar healed well, non-red, no c/o pain."  The scars measurement was noted as 13 x 0.2 cm, with an approximate total area of 2.60 cm2.  It was also noted that the scar was without underlying soft tissue damage.  No other symptoms were noted.

After due consideration, the Board finds that entitlement to an initial compensable rating for the Veteran's surgical scar, left ankle is not warranted.  Particularly, the Veteran's scar is not associated with underlying soft tissue damage and is only 0.5 sq. cm or 0.078 square inches in length.

The Board also notes that no instability or pain was reported by the Veteran or noted by the VA examiner.  Accordingly, a rating under Diagnostic Code 7804 is not warranted.

Thus, entitlement to an initial compensable rating for surgical scar, left ankle is denied.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).

In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current 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.  Hickson v. West, 12 Vet. App. 246 (1999).

A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service.  38 U.S.C. § 1111, 1137; 38 C.F.R. § 3.304(b).  In order to rebut the presumption of sound condition under 38 U.S.C. §
 elements must be satisfied: (1) the existence of a current 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.  Hickson v. West, 12 Vet. App. 246 (1999).

A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service.  38 U.S.C. § 1111, 1137; 38 C.F.R. § 3.304(b).  In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The disease or injury must be clearly specified or diagnosed on the induction examination; vague symptoms are not enough to rebut the presumption.

However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  Temporary or intermittent flareups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  If an increase in disability is shown during service, clear and unmistakable evidence is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306(b).

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 C.F.R. § 3.306(b); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (evidence of a temporary flareup, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability).

In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in doing so, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence.  Jandreau v. Nicholson, 492 F.3d 1372 (2007).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-449 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  In concluding that no relationship between a current disability and military service exists, the examiner may not rely solely on an absence of medical records and not consider any available competent and credible lay statements.  Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1336 (2006).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it
 West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  In concluding that no relationship between a current disability and military service exists, the examiner may not rely solely on an absence of medical records and not consider any available competent and credible lay statements.  Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1336 (2006).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In adjudicating a claim of service connection, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Service connection for right shoulder strain is granted.

The Veteran claim entitlement to service connection for a right shoulder disorder.

The Veteran's January 1997 enlistment examination shows that the examiner noted "shoulder drop, mild asymptomatic."

A June 2022 VA treatment note shows the Veteran's complaints of right shoulder pain.

In a February 2023 VA shoulder examination, a VA examiner diagnosed the Veteran with right shoulder strain.  The VA examiner noted the Veteran's reporting that he had separation of the right shoulder during wrestling in high school.  Then in service he had increasing soreness, with lifting, and with certain movements.  Current symptoms include pain in the right shoulder.  The Veteran takes ibuprofen as needed.  The VA examiner opined that the claimed disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  As support for the opinion, the VA examiner explained that the Veteran had a separation of the right shoulder prior to service.  The Veteran had random complaints of ache in the right shoulder.  Also, the VA examiner explained that shoulder pain is one of the most common orthopedic problems.  The course of shoulder pain can vary from person to person, with some people having pain that goes away within six months and some people having pain that can continue for many years.

After due consideration, the Board finds the February 2023 VA shoulder examination of low probative value as to the etiology of the Veteran's claimed right shoulder disorder.  Particularly, the VA examiner did not thoroughly address and consider the Veteran's reporting of symptoms during service pertaining to aggravation of his "shoulder drop, mild asymptomatic" noted upon entrance to service, and did not specifically address and consider the Veteran's particular circumstances.

As the Board finds the Veteran to be competent and credible with respect to the circumstances of his military service and symptoms, the Board has assigned his statements high probative value.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

In light of the above, the Board finds that the presumption of soundness does not apply with respect to the Veteran's right shoulder disorder, diagnosed as right shoulder strain.  However, the record shows no clear and unmistakable evidence to rebut the presumption of aggravation; that is, the presumption that such increase in severity, or worsening, was due to the circumstances of the Veteran's service.  Thus, service connection for right shoulder strain is warranted.  38 U
 the Board finds the Veteran to be competent and credible with respect to the circumstances of his military service and symptoms, the Board has assigned his statements high probative value.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

In light of the above, the Board finds that the presumption of soundness does not apply with respect to the Veteran's right shoulder disorder, diagnosed as right shoulder strain.  However, the record shows no clear and unmistakable evidence to rebut the presumption of aggravation; that is, the presumption that such increase in severity, or worsening, was due to the circumstances of the Veteran's service.  Thus, service connection for right shoulder strain is warranted.  38 U.S.C. §§ 1111, 1137, 1153; 38 C.F.R. §§ 3.304(b), 3.306(a).

5. Service connection for bilateral hearing loss is denied.

The Veteran claims entitlement to service connection for bilateral hearing loss.

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the law 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

"[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  In the Hensley case, it was noted that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

The Board notes that VA has conceded that a qualifying event, injury, or disease had its onset during your service.  Namely, the Veteran's in-service noise exposure based on the Veteran's military occupational specialty of Motor Transport (88M).  See September 15, 2023, rating decision.

The readings from a February 2023 VA audiological examination are as follows:

HERTZ 500 1000 2000 3000 4000 6000 8000

RIGHT 15 20 0 10 15 10 20

LEFT 10 15 10 10 0 10 15

The corresponding word discrimination score (Maryland CNC Test) for the Veteran's right ear was 94 percent, and left ear was 94 percent.  In light of the Veteran's audiometric scores and word discrimination scores, the VA examiner concluded that the Veteran had "normal hearing."

The Board notes that service treatment records show no hearing loss documented in service.

After due consideration, the Board concludes that the Veteran does not have a current disability of left and right hearing loss that meets the VA disability standards, and as such, he does not have a valid claim.  Boyer v. West, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. at 225. 38 C
 word discrimination score (Maryland CNC Test) for the Veteran's right ear was 94 percent, and left ear was 94 percent.  In light of the Veteran's audiometric scores and word discrimination scores, the VA examiner concluded that the Veteran had "normal hearing."

The Board notes that service treatment records show no hearing loss documented in service.

After due consideration, the Board concludes that the Veteran does not have a current disability of left and right hearing loss that meets the VA disability standards, and as such, he does not have a valid claim.  Boyer v. West, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. at 225. 38 C.F.R. § 3.385.  That is, the most probative and persuasive evidence is unfavorable to the appeal because it shows that there is no current hearing loss disability pursuant to VA standards.  As the evidence of record persuasively favors against the Veteran's service connection claim on appeal, the benefit of the doubt doctrine is not for application, and the appeal must therefore be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Thus, entitlement to service connection for bilateral hearing loss is denied.

REASONS FOR REMAND

Service connection for right knee strain is remanded.

The Veteran claims entitlement to service connection for a right knee disorder.

VA treatment records show the Veteran's reporting of pain in the knees.  See VA treatment records, August 2019.

The Board notes the Veteran's reporting of being bothered by knee issues in service.  See November 2020 post deployment health re-assessment; January 2023 report of medical history, medical board.

As previously indicated, in a February 2023 VA knee examination, the Veteran was diagnosed with right and left knee strain.  The VA examiner noted the Veteran's reporting of onset of symptoms in 2000, after a left ankle fracture, when knees began to hurt, with initial symptoms including pain, and difficulty flexing.  Current symptoms were also reported, including pain, and loss of strength.  Use of ibuprofen medication was noted.  The VA examiner opined that the claimed disorder was less likely than not (likelihood was less than approximately balanced or nearly equal) proximately due to or the result of the veteran's service-connected disability of left ankle strain, status post left ankle fracture with hardware removal.  As support for the opinion, the VA examiner explained that there was no documentation related specifically to the right knee in the service treatment records or VA treatment records.  Also, there was no medical literature suggesting that a fractured ankle on the opposite side without an abnormal gait could cause a knee strain.

The Board notes that the Veteran is service connected for left ankle strain, status post left ankle fracture with hardware removal.  See September 15, 2023, rating decision.

After due consideration, the Board finds the February 2023 VA examination of limited probative value as to the etiology of the Veteran's right knee strain.  Particularly, the VA examiner relied on the absence of reported symptoms in service and subsequently.  Also, there was no substantial explanation as to why the absence of an abnormal gait was a definitive factor in assessing whether the right knee disorder could be related to the Veteran's service-connected disability of left ankle strain, status post left ankle fracture with hardware removal.  Finally, the VA examiner did not render a direct service connection opinion.

Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion).  38 C.F.R. § 20.802.  See also 38 U.S.C. § 5103A(e)(2); 38 C.F.R. § 20.802(a); Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007).

Thus, the Board finds that a remand of the claim is necessary for a VA examination pertaining to the etiology of the Veteran's right knee strain.

The matters are REMANDED for the following action:

The Veteran must be afforded a VA examination by another examiner with appropriate expertise to determine the etiology of the Veteran's right knee strain.  Any and all studies, tests, and evaluations that are deemed necessary should be conducted.  The claims file, including this remand, should be reviewed by the examiner.

After
 § 5103A(e)(2); 38 C.F.R. § 20.802(a); Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007).

Thus, the Board finds that a remand of the claim is necessary for a VA examination pertaining to the etiology of the Veteran's right knee strain.

The matters are REMANDED for the following action:

The Veteran must be afforded a VA examination by another examiner with appropriate expertise to determine the etiology of the Veteran's right knee strain.  Any and all studies, tests, and evaluations that are deemed necessary should be conducted.  The claims file, including this remand, should be reviewed by the examiner.

After a review of the Veteran's claims file and an examination of the Veteran, the examiner should provide an opinion responding to the following:

(a) Whether it is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right knee strain originated during, or is etiologically related to, active-duty service.

(b) Whether it is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right knee strain was caused or aggravated by his service-connected left ankle strain, status post left ankle fracture with hardware removal.

*The VA examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions.  If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

*A complete rationale should be given for all opinions and conclusions expressed.  If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training that is necessary to provide the requested opinion.

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Aquino Ramos, Carlos M.

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.