BILATERAL PES PLANUS

Summary

The veteran, who served from August 1974 to March 1977, appeals the denial of service connection for a cervical spine disorder, an increased rating for right total knee arthroplasty and left knee chondromalacia/patella deformity, and a compensable rating for bilateral hearing loss. The Board denied service connection for the cervical spine disorder, finding that while the veteran has cervical spondylosis, the evidence did not establish a secondary relationship to his service-connected knee disabilities. The Board noted that the relevant evidence did not show a diagnosed cervical spine disorder at the time of the initial decision, and subsequent records were too late for consideration. For the knee conditions, the Board found that the evidence persuasively weighed against ratings higher than those already assigned, citing limitations in range of motion and the absence of severe painful motion or weakness, and that separate ratings for instability would be pyramiding. For bilateral hearing loss, the Board reviewed VA examinations and found that the audiometric results equated to a zero percent disability rating under the applicable diagnostic codes, despite the veteran's reported difficulties and use of hearing aids. The Board denied the claims for the cervical spine, right knee, left knee, and hearing loss. The Board remanded claims for bilateral pes planus and bilateral plantar fasciitis due to a duty to assist error, specifically the failure to obtain an opinion on whether these foot conditions were aggravated by the service-connected knee disabilities.

Full Decision Text

Citation Nr: A26038691
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 201218-129230
DATE: April 24, 2026

ORDER

Entitlement to service connection for a cervical spine disorder is denied.

Entitlement to a rating in excess of 30 percent for right total knee arthroplasty is denied.

Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee and deformity of patella is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for bilateral pes planus is remanded.

Entitlement to service connection for bilateral plantar fasciitis is remanded.

FINDINGS OF FACT

1. The Veteran's cervical spine disorder is not secondary to service-connected disabilities.

2. The Veteran's right total knee arthroplasty is manifested by flexion to 85 degrees and extension to 5 degrees with repeated use over time and during flare-ups.

3. The Veteran's chondromalacia of the left knee and deformity of patella is manifested by flexion to 90 degrees.

4. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear.

CONCLUSIONS OF LAW

1. The criteria for service connection for a cervical spine disorder due to service-connected disabilities are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for a rating in excess of 30 percent for right total knee arthroplasty are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055.

3. The criteria for a rating in excess of 10 percent for chondromalacia of the left knee and deformity of patella are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5260.

4. The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from August 1974 to March 1977.  

The rating decision on appeal was issued in November 2020 and constitutes an initial decision; therefore, the modernized review system applies.  In the December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on August 21, 2024.  Therefore, the Board may only consider the evidence of record at the time of the November 2020 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of service connection for bilateral pes planus and bilateral plantar fasciitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  
 consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of service connection for bilateral pes planus and bilateral plantar fasciitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

1. Entitlement to service connection for a cervical spine disorder

The Veteran contends that his cervical spine disorder is secondary to his service-connected bilateral knee disabilities.  August 2024 Hearing Transcript at 8.  Specifically, he testified that his knee disabilities altered the way he picked up items at work, which put a strain on his neck.  Id. at 5. 

Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection.

Service connection may be granted for a disability that is due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.

The question for the Board is whether the Veteran has a current disability that is due to or the result of, or was aggravated by service-connected disability.

The Board concludes that, while the Veteran has a current of cervical spondylosis, the evidence of record persuasively weighs against finding that the Veteran's cervical spondylosis is due to or the result of, or aggravated by service-connected disabilities.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). 

The Veteran was provided a VA examination in October 2020.  At that time, no disability was diagnosed.  He reported to the examiner that he developed neck problems from his right knee surgery.  The examiner opined that they were unable to confirm a current chronic cervical spine diagnosis with current available records and/or that day's exam.  They concluded that, therefore, no nexus or plausible secondary relationship was established.

Subsequent to that examination, the Veteran submitted additional treatment records within 90 days of his hearing showing a current diagnosis of cervical spondylosis documented in September 2023 x-rays.

In this case, the evidence at the time of the November 2020 rating decision did not show a diagnosed disability.  Prior to the November 2020 rating decision on appeal, the evidence did not suggest any cervical spine disorder that may be secondary to the Veteran's service-connected knee disabilities.  The September 2023 treatment records were received well after the rating decision on appeal.  Accordingly, a remand is not necessary for an additional examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), as the evidence of record at the time of the November 2020 rating decision on appeal did not contain an indication that the Veteran had a diagnosed cervical spine disorder.  VA treatment records at the time of that decision did not show cervical spine complaints.  

The Veteran believes the claimed cervical spine disorder is due to or the result of/aggravated by a service-connected disability.  The Veteran in this case is not competent to provide a nexus opinion regarding this issue.  The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran has the skills or medical training to make such a determination.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  Consequently, the Board gives more probative weight to the evidence failing to show a cervical spine disorder secondary to service-connected disabilities in denying this claim.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established, and an increase in
 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  Consequently, the Board gives more probative weight to the evidence failing to show a cervical spine disorder secondary to service-connected disabilities in denying this claim.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  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 required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

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 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) ("[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 (2011). 

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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 weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."   

In Sharp v. Shulkin, 29 Vet. App. 26 (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.

In making these determinations, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Furthermore, an October 
 if possible, with range of motion measurements of the opposite undamaged joint."   

In Sharp v. Shulkin, 29 Vet. App. 26 (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.

In making these determinations, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Furthermore, an October 2024 Board decision granted a total rating based on individual employability due to service-connected disabilities (TDIU) from August 7, 2020, and remanded entitlement to TDIU prior to August 7, 2020.  A May 2025 rating decision denied entitlement to TDIU on an extraschedular basis prior to August 7, 2020.  To date, the Veteran has not appealed that decision.  Consequently, as the issue of entitlement to TDIU has already been addressed, the Board need not consider whether it has been raised by the record as part and parcel of the increased rating claims on appeal.  

2. Entitlement to a rating in excess of 30 percent for right total knee arthroplasty

The Veteran contends that a higher rating is warranted due to residual weakness and pain.  August 2024 Hearing Transcript at 4.

The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055, for knee replacement (prosthesis).  Effective February 7, 2021, VA amended Diagnostic Code 5055 to reflect that the rating includes resurfacing of the knee, and that a 100 percent rating is warranted for 4 months following implantation of prosthesis or resurfacing.  In this case, the Veteran has not had resurfacing, and the total knee replacement occurred prior to February 7, 2021.

Under Diagnostic Code 5055, the minimum rating is 30 percent.  With intermediate degrees of residual weakness, pain, or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262.  A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity.  The maximum 100 percent rating is warranted for 1 year following implantation of prothesis.  38 C.F.R. § 4.71a, Diagnostic Code 5055.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for the right knee disability.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had functional loss of having to partially extend his knees while sitting; difficulties with walking, standing, kneeling, squatting, and sleeping; and increased pain with sitting and walking, would not result in symptoms more nearly approximating severe painful motion or weakness.

The Veteran was provided VA examinations in August 2020 and September 2020.  The August 2020 examination showed that he reported taking medication and using ointment.  He denied flare-ups.  The Veteran reported functional loss of having to partially extend his knees while sitting, and difficulties with walking, standing, kneeling, squatting, and sleeping.  Range of motion testing showed flexion to 85 degrees with pain and extension to 5 degrees with pain.  The Veteran was unable to perform repetitive use testing due to pain.  With repeated use over time, pain, fatigue, weakness, lack of endurance, and incoordination would limit flexion to 85 degrees and extension to 5 degrees.  During flare-ups, flexion would be limited to 85 degrees and extension limited to 5 degrees with no factors causing functional loss.  The Veteran had additional factors contributing to disability of deformity, instability of station, and interference with sitting.  The examiner noted that the Veteran had valgus deformity, required a cane for ambulation, and required partial knee extension when sitting.  He had muscle strength of 5/5 for flexion and for extension.  

The September 2020 examination showed that the Veteran reported taking medication and using ointment.  He denied flare-ups.  The Veteran reported functional loss of increased pain with sitting and walking.  Range of motion testing showed flexion to 90 degrees
 degrees.  During flare-ups, flexion would be limited to 85 degrees and extension limited to 5 degrees with no factors causing functional loss.  The Veteran had additional factors contributing to disability of deformity, instability of station, and interference with sitting.  The examiner noted that the Veteran had valgus deformity, required a cane for ambulation, and required partial knee extension when sitting.  He had muscle strength of 5/5 for flexion and for extension.  

The September 2020 examination showed that the Veteran reported taking medication and using ointment.  He denied flare-ups.  The Veteran reported functional loss of increased pain with sitting and walking.  Range of motion testing showed flexion to 90 degrees with pain and extension to zero degrees with pain.  There was no change in ranges of motion following repetition.  Pain, fatigue, weakness, lack of endurance, and incoordination would not significantly limit functional ability with repeated use over time and during flare-ups.  There were no additional factors contributing to disability.  He had muscle strength of 5/5 for flexion and for extension. 

In this case, at worst, the Veteran would have flexion to 85 degrees and extension to 5 degrees with repeated use over time and during flare-ups.  Even with considering the Veteran's reports to the examiners regarding functional loss, the Board is unable to conclude that the Veteran's right knee disability results in chronic residuals consisting of severe painful motion or weakness.  Regarding other definitions of this term, "severe" is defined as "very great [or] intense," or "of a great degree."  Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting, respectively, the New Oxford American Dictionary 1599 (3d ed. 2010) and Merriam-Webster Dictionary (internal citation omitted)).  

In this regard, and as discussed further below, the Veteran does not have ranges of motion warranting higher ratings under the applicable diagnostic codes.  Flexion limited to 15 degrees warrants the highest rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260.  Considering the Veteran having at worst, flexion to 85 degrees, while the highest rating available under Diagnostic Code 5260 contemplates flexion to 15 degrees, the Board is unable to conclude that the Veteran's right knee approximates chronic residuals consisting of severe painful motion or weakness.

As noted above, the rating criteria also provide for rating by analogy to diagnostic codes 5256, 5261, or 5262 for intermediate degrees of residual weakness, pain, or limitation of motion.

Under Diagnostic Code 5256, which evaluates ankylosis, a 30 percent rating is warranted when it is favorable angle in full extension, or in slight flexion between 0 and 10 degrees.  A 40 percent rating is warranted for ankylosis in flexion between 10 and 20 degrees.  A 50 percent rating is warranted for ankylosis in flexion between 20 and 45 degrees.  The maximum 60 percent rating is warranted for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, Diagnostic Code 5256.

Under Diagnostic Code 5261, which evaluates limitation of extension, a noncompensable rating is warranted for extension limited to 5 degrees.  A 10 percent rating is warranted for extension limited to 10 degrees.  A 20 percent rating is warranted for extension limited to 15 degrees.  A 30 percent rating is warranted for extension limited to 20 degrees.  A 40 percent rating is warranted for extension limited to 40 degrees.  The maximum 50 percent rating is warranted for extension limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5262, which evaluates impairment of tibia and fibula, a 30 percent rating is warranted for malunion with marked knee or ankle disability.  The maximum 40 percent rating is warranted for nonunion with loss motion, requiring brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.

Even with considering the Veteran's pain on motion and reported functional impairment, the evidence does not support a finding that a rating higher than 30 percent is warranted by analogy under Diagnostic Code 5256.  The Veteran has had ranges of motion far exceeding that contemplated by favorable or unfavorable ankylosis.  The evidence also does not suggest a higher rating under Diagnostic Code 5261 as the Veteran, at worst, had extension to 5
ibia and fibula, a 30 percent rating is warranted for malunion with marked knee or ankle disability.  The maximum 40 percent rating is warranted for nonunion with loss motion, requiring brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.

Even with considering the Veteran's pain on motion and reported functional impairment, the evidence does not support a finding that a rating higher than 30 percent is warranted by analogy under Diagnostic Code 5256.  The Veteran has had ranges of motion far exceeding that contemplated by favorable or unfavorable ankylosis.  The evidence also does not suggest a higher rating under Diagnostic Code 5261 as the Veteran, at worst, had extension to 5 degrees, which warrants a zero percent rating.  As higher ratings are available for even greater degrees of limitation, the Board reiterates that the evidence does not suggest chronic residuals consisting of severe painful motion or weakness.  Lastly, the evidence does not support a higher rating under Diagnostic Code 5262 as the Veteran's symptoms discussed above do not suggest impairment analogous to malunion with marked knee or ankle disability.

The Board also acknowledges the Veteran's reports of knee instability, as well as the findings of slight recurrent subluxation and lateral instability during the August 2020 examination.  However, these symptoms are contemplated in the current rating assigned under Diagnostic Code 5055, which contemplates both painful motion and weakness and is intended to compensate for all residuals of a knee replacement.  To assign a separate rating under Diagnostic Code 5257 for recurrent subluxation or instability in this case would constitute pyramiding, as the currently assigned 30 percent rating compensates the Veteran for such symptomatology.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

Lastly, the evidence did not show impairment of the tibia and fibula warranting a rating under Diagnostic Code 5262.

In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use."  Ingram v. Collins, 38 Vet. App. 130 (2025).  The Board is aware that the Veteran had taken medication to treat his right knee symptoms.  That being said, the Board finds that the Veteran's symptoms during the appeal period and use of medication, viewed in tandem, are essentially commensurate to the disability picture contemplated by the assigned 30 percent rating.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 30 percent for the right knee disability.  As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

3. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee and deformity of patella

The Veteran contends that a higher rating is warranted due to his knee giving out.  August 2024 Hearing Transcript at 4.

The Veteran's left knee limitation of flexion is rated under a hyphenated diagnostic code.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.2.  Diagnostic Code 5010 refers generally to arthritis, to be rated as degenerative arthritis under Diagnostic Code 5003, whereas Diagnostic Code 5260 refers to limitation of flexion.

Effective February 7, 2021, Diagnostic Code 5010 was amended.  See 85 Fed. Reg. 76453 (Nov. 30, 2020).  However, as the rating decision on appeal was issued in November 2020, prior to the amendment, the Board need not address the amended version.  A 10 percent rating is available for degenerative arthritis established by X-ray findings under 38 C.F.R. § 4.71a, Diagnostic Code 5003 based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of
. 76453 (Nov. 30, 2020).  However, as the rating decision on appeal was issued in November 2020, prior to the amendment, the Board need not address the amended version.  A 10 percent rating is available for degenerative arthritis established by X-ray findings under 38 C.F.R. § 4.71a, Diagnostic Code 5003 based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling.  The 20 percent and 10 percent ratings based on X-ray findings without limitation of motion will not be combined with ratings based on limitation of motion.  The knee is considered a major joint.  38 C.F.R. § 4.45(f).

Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the limitation of flexion disability.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had functional loss of having to partially extend his knees while sitting; difficulties with walking, standing, kneeling, squatting, and sleeping; and increased pain with sitting and walking, would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.

The Veteran was provided VA examinations in August 2020 and September 2020.  The August 2020 examination showed that he reported taking medication and using ointment.  He denied flare-ups.  The Veteran reported functional loss of having to partially extend his knees while sitting, and difficulties with walking, standing, kneeling, squatting, and sleeping.  Range of motion testing showed flexion to 100 degrees with pain.  The Veteran was unable to perform repetitive use testing due to pain, weakness, fatigue, lack of endurance, and incoordination.  With repeated use over time, pain, fatigue, weakness, lack of endurance, and incoordination would limit flexion to 100 degrees.  During flare-ups, flexion would be limited to 100 degrees with no factors causing functional loss.  The Veteran had no additional factors contributing to disability. 

The September 2020 examination showed that the Veteran reported taking medication and using ointment.  He denied flare-ups.  The Veteran reported functional loss of increased pain with sitting and walking.  Range of motion testing showed flexion to 90 degrees with pain.  There was no change in range of motion following repetition.  Pain, fatigue, weakness, lack of endurance, and incoordination would not significantly limit functional ability with repeated use over time and during flare-ups.  There were no additional factors contributing to disability.  

In this case, at worst, the Veteran had flexion to 90 degrees.  Consequently, the Board is unable to conclude that his range of motion more nearly approximates flexion to 30 degrees warranting a higher 20 percent rating.  Further, as the Veteran does have limitation of motion, a 20 percent rating under Diagnostic Code 5003 is not warranted.  

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban, 6 Vet. App. at 261-62; Lyles v. Shulkin, 29 Vet. App. 107.

Diagnostic Code 5256 evaluates impairment from ankylosis, which has not been shown.
 range of motion more nearly approximates flexion to 30 degrees warranting a higher 20 percent rating.  Further, as the Veteran does have limitation of motion, a 20 percent rating under Diagnostic Code 5003 is not warranted.  

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban, 6 Vet. App. at 261-62; Lyles v. Shulkin, 29 Vet. App. 107.

Diagnostic Code 5256 evaluates impairment from ankylosis, which has not been shown.  The Veteran has not contended, nor does the evidence show, that his limitation of motion approximates ankylosis warranting a rating under Diagnostic Code 5256.

The evidence does not show compensable recurrent subluxation or instability warranting a separate rating under Diagnostic Code 5257.  In this regard, the Board acknowledges the Veteran's report to the August 2020 examiner that his left knee gave out and clicked while walking, as well as his August 2024 testimony of his left going out.  However, the August 2020 examination showed that the Veteran did not have recurrent subluxation or persistent instability.  Stability tests were not performed at the VA examination as they were not indicated.  Similarly, the September 2020 examination also did not show recurrent subluxation or persistent instability.  Stability tests (anterior, posterior, medial, and lateral) were all normal at the September 2020 examination.  The evidence at the time of the November 2020 rating decision on appeal did not support a finding of compensable recurrent subluxation or instability warranting a separate rating under Diagnostic Code 5257.  Consequently, a separate rating under Diagnostic Code 5257 is not warranted.  

The evidence also fails to show dislocated semilunar cartilage or removal of semilunar cartilage warranting ratings under Diagnostic Codes 5258 and 5259.

Diagnostic Code 5261 addresses limitation of extension, which is addressed in a separate Board decision.   

Lastly, the evidence does not show impairment of the tibia and fibula warranting a rating under Diagnostic Code 5262 or genu recurvatum warranting a rating under Diagnostic Code 5263.

In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use."  Ingram, supra.  The Board is aware that the Veteran had taken medication to treat his left knee symptoms.  That being said, the Board finds that the Veteran's symptoms during the appeal period and use of medication, viewed in tandem, are essentially commensurate to the disability picture contemplated by the assigned 10 percent rating.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the left knee limitation of flexion disability.  As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to a compensable rating for bilateral hearing loss

The Veteran is seeking a higher rating for his service-connected bilateral hearing loss.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 4.85, Diagnostic Code 6100.

To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII.  

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70
 hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII.  

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

An August 2020 VA examination reveals that the Veteran reported using hearing aids to hear better.  38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	45	50	55	60	52.5	96

LEFT	45	55	60	65	56.25	96

Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear.  Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

A September 2020 VA examination reveals that the Veteran reported difficulty hearing the television, and difficulty hearing in background noise or hearing with multiple speakers in both ears.  He used hearing aids.  38 C.F.R. § 4.10; Martinak, supra.  The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	50	60	70	75	64	100

LEFT	50	65	70	75	65	98

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear.  Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted.  

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing the television, and difficulty hearing in background noise or hearing with multiple speakers in both ears.  The Veteran is competent to report difficulty hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The functional impact that the Veteran describes, is contemplated by the rating criteria.  Doucette, supra.  The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142 (2017).

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss.  As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection
.  The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142 (2017).

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss.  As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral pes planus 

2. Entitlement to service connection for bilateral plantar fasciitis 

The issues of entitlement to service connection for bilateral pes planus and bilateral plantar fasciitis are remanded to correct a duty to assist error that occurred prior to the November 2020 rating decision on appeal.  The AOJ obtained September 2020 medical opinions prior to the November 2020 rating decision on appeal.  However, this medical opinion did not address whether the Veteran's foot disorders are aggravated by the service-connected bilateral knee disabilities.

The matters are REMANDED for the following action:

Obtain an addendum medical opinion from the September 2020 VA foot conditions examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of the diagnosed bilateral pes planus and bilateral plantar fasciitis.  

The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., at least an approximate balance of positive and negative evidence) that the diagnosed bilateral pes planus and bilateral plantar fasciitis are aggravated by the service-connected bilateral knee disabilities.  "Aggravation" covers situations where: 1) there was worsening directly due to a service-connected disability; and/or 2) the claimed disability would have been less severe but for the service-connected disability because the service-connected disability resulted in the inability to treat the claimed disability.  

A complete rationale should be given for all opinions and conclusions expressed.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Barstow, 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.