SHOULDER IMPAIRMENT OF

B.T. KNOPE · 2026 · Case ID: A26039984

MIXED

Summary

The Veteran served in the Navy from November 1975 to February 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision concerning increased ratings for several musculoskeletal conditions. The Veteran sought service connection for a right shoulder disability, claiming it was secondary to his service-connected left shoulder condition. The Board granted service connection for the right shoulder disability, finding it secondary to the left shoulder condition based on the Veteran's testimony and a private medical opinion from Dr. M.R., which was found more persuasive than the VA examiner's opinion. The Board applied the benefit of the doubt, noting the evidence was in equipoise. The Veteran also appealed for increased ratings for his right hand, right knee, left knee, right ankle, and left shoulder disorders. The Board denied increased ratings for the right hand, right knee (flexion), left knee (flexion), right ankle, and left shoulder, finding the evidence did not meet the criteria for higher ratings. However, the Board granted a separate 10 percent rating for right knee instability, based on the Veteran's testimony and the private medical opinion, despite the VA examiner finding no instability. The Veteran's claims for a compensable rating for a left knee scar were denied, but a 20 percent rating was granted for three painful scars, based on the Veteran's testimony and the July 2020 VA examination findings.

Rationale

Private opinion found more persuasive; Evidence in equipoise; Benefit of the doubt applied

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5201

Docket No.

210419-153757

Full Decision Text

Citation Nr: A26039984
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210419-153757
DATE: April 29, 2026

ORDER

Entitlement to service connection for a right shoulder disability is granted.

Entitlement to a rating in excess of 10 percent for right hand fracture of ring and little fingers is denied.

Entitlement to a rating in excess of 10 percent for a right knee disorder is denied.

Entitlement to a separate rating of 10 percent for right knee instability is granted.

Entitlement to a rating in excess of 20 percent for a left knee disorder is denied.

Entitlement to a rating in excess of 10 percent for a right ankle disorder is denied.

Entitlement to a rating in excess of 20 percent for a left shoulder disorder is denied.

Entitlement to a 20 percent disability rating for three painful scars is granted.

Entitlement to a compensable rating for left knee scar is denied.

FINDINGS OF FACT

1. Affording him the benefit of the doubt, the Veteran's right shoulder disability is secondary to his service-connected left shoulder disability.

2. During the period on appeal, the Veteran's right hand disability did not result in ankylosis.

3. During the period on appeal, the Veteran's right knee flexion exhibited painful motion; however, limitation of flexion to 30 degrees or less is not shown.

4. Affording the Veteran the benefit of the doubt, he has current "slight" symptoms of right knee instability; "moderate" or "severe" instability is not shown.

5. During the period on appeal, the Veteran's left knee flexion exhibited painful motion with flexion limited to 30 degrees; however, flexion limited to 15 degrees or less is not shown.

6. During the period on appeal, the Veteran's service-connected right ankle disability is not shown to be manifested by more than moderate limitation of motion; ankylosis, marked limitation of motion, and malunion of os calcis or astragalus are not shown.

7. The Veteran's left shoulder is the non-dominant extremity and is manifested by limitation of motion more than 25 degrees.

8. The Veteran's left knee scar does not measure 144 square inches or greater.

9. Affording him the benefit of the doubt, the Veteran has three painful and/or unstable scars.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right shoulder disability as secondary to a service-connected left shoulder disability are 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 10 percent for a right hand disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5223.

3. The criteria for a rating in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260.

4. The criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257.

5. The criteria for a disability rating greater than 20 percent for a left knee disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5020-5260.

6. The criteria for a disability rating greater than 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5271.

7. The criteria for a rating in excess of 20 percent for left shoulder disability limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

8.
6. The criteria for a disability rating greater than 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5271.

7. The criteria for a rating in excess of 20 percent for left shoulder disability limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

8. The criteria for a compensable rating for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7802.

9. The criteria for a higher 20 percent rating for three painful scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Navy, on active duty from November 1975 to February 1980.

This claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran submitted a timely VA Form 10182, selecting the Hearing Lane. In May 2024, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

As the Veteran chose the Hearing docket, the Board may only review the evidence of record up to the August 2020 rating decision on appeal, evidence submitted at the Board hearing, and any evidence submitted within 90 days of that hearing. If the Veteran has submitted any evidence outside of those periods, the Board has not considered it in making this decision.

Additionally, the Board acknowledges argument from the Veteran's representative at the May 2024 hearing. First, the representative argued for the Board to consider entitlement to a total disability rating based on individual unemployability (TDIU). Here, the Board notes he has been granted TDIU from June 2021 to June 2025. However, entitlement to a TDIU was not adjudicated in either of the rating decisions on appeal. Additionally, the Veteran did not claim unemployability due to service-connected conditions during the period on appeal. Further, the Board finds entitlement to TDIU was not raised by the record during the period on review. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Veteran submitted April and August 2021 applications for TDIU along with support evidence, no such evidence suggesting unemployability was submitted during the period on appeal. Indeed, during his testimony before the undersigned, the Veteran stated he was working full time until May 31, 2021. As such, a claim for entitlement to TDIU is not presently before the Board and there exists no pre-decisional duty to assist error to remand this issue to the RO for consideration.

Moreover, the Veteran's representative also presented argument for entitlement to a temporary total disability rating for his right knee disorder. While the Board took testimony regarding this issue, it declines to adjudicate this issue as it is not properly before the Board. Indeed, his representative argued that he underwent right knee surgery in February 2021. However, the Board notes the period on appeal ends the date of the August 2020 rating decision. Given the surgery occurred 6 months after the rating decision on appeal, it is not part and parcel of his increased rating claim regarding his right knee. Thus, the issue of a temporary total rating is not presently before the Board at this time.

Accordingly, the Board invites the Veteran to file a supplemental claim for TDIU and/or a temporary total disability rating for his right knee, in response to this decision, thus preserving any effective date related to the claims on appeal.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.
Thus, the issue of a temporary total rating is not presently before the Board at this time.

Service Connection

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.

1. Entitlement to service connection for a right shoulder disability.

The Veteran seeks service connection for a right shoulder disability, which he contends has been caused or aggravated by his service-connected left shoulder condition. Affording him the benefit of the doubt, the Board finds that his right shoulder disability was caused by his left shoulder condition.

As an initial matter, the Board acknowledges the favorable findings made in the rating decision on appeal. Specifically, the RO found that the Veteran has a current right shoulder diagnosis, and his claimed primary disability, his left shoulder condition, is already service-connected.

Thus, the question before the Board is whether the Veteran's currently diagnosed right shoulder disability is related to his left shoulder condition.

In support of his appeal, the Veteran submitted a private opinion dated December 2023, following his Board hearing, in June 2024. Here, Dr. M.R. reviewed the claims file, to include VA examinations, lay statements and medical treatment records. Thereafter, Dr. M.R. opined that the Veteran's right shoulder condition, diagnosed as pain/strain with rotator cuff tear, is secondary to overuse from his service-connected left shoulder condition. In support, the private clinician explained that he developed right shoulder pain, at least as early as 2001, due to microtraumas from overuse of his left shoulder. This overuse, according to Dr. M.R. and several cited medical journal articles, resulted in at least two severe injuries in 2012 and 2019.

Turning to the negative medical evidence of record, it includes a report from the July 2020 VA examination. Here, the VA examiner opined against service connection. In support, the clinician explained that the Veteran reported an injury while handling a jet ski in 2019 and a review of the MRI indicates his right shoulder disorder is consistent with a traumatic injury. Indeed, the examiner continued, compensatory injuries occur over time after the opposite extremity continuously overcompensates for the other judgment. The Board places less probative value on the opinion of the July 2020 VA examiner, as they did not discuss whether the Veteran's right shoulder pain or injuries, prior to the 2019 jet ski incident, constitutes compesatory injuries as they highlighted.

Ultimately, affording the complete benefit of the doubt, the Board finds the private opinion is more persuasive than the VA medical opinion of record. In this regard, the private examiner contemplated the Veteran's history of right shoulder pain, from 2001 through 2019, and discussed how this indicates any injury consistent with overcompensation. Indeed, the VA examiner's rationale is consistent with this opinion, as it states such overcompensation would take places over a long period of time, such is the case here. As such, the Board finds the evidence is at least in relative equipoise. When the evidence is in equipoise, the Veteran should prevail. As such, the Board finds that the claim should be granted.

Increased Ratings

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. §
regard, the private examiner contemplated the Veteran's history of right shoulder pain, from 2001 through 2019, and discussed how this indicates any injury consistent with overcompensation. Indeed, the VA examiner's rationale is consistent with this opinion, as it states such overcompensation would take places over a long period of time, such is the case here. As such, the Board finds the evidence is at least in relative equipoise. When the evidence is in equipoise, the Veteran should prevail. As such, the Board finds that the claim should be granted.

Increased Ratings

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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." 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 Section 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 Section 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.").

The period on review currently before the Board under the AMA is limited to the period considered by the RO (i.e., ends at the issuance of the RO decision on appeal). The review period and the evidentiary windows are distinct concepts in AMA that are not interchangeable (the review period is the time which VA is assigning a rating for the issue on appeal; the evidentiary window is the time which evidence may be submitted and considered for the issue on appeal). The AMA did not alter the substantive case law governing increased rating claims; therefore, "the date the evidence is submitted or received is irrelevant when considering the effective date of an award." McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Therefore, in AMA increased rating appeals, the Board must determine whether properly submitted evidence is relevant to the appeal period, i.e., whether it reflects the severity and functional impairments of the service-connected disability during that period. Thus, when a Veteran submits evidence after the RO decision on appeal, but during an open evidence window, the Board must consider such evidence and determine whether it relates back to the relevant appeal period.

Here, the Board acknowledges that the Veteran submitted several VA examinations regarding the issues on appeal within the 90 days following his Board hearing. However, these VA examinations are dated September 2021, with range of motion measurements taken on that same date. In AMA increased rating appeals, if post-decisional evidence was submitted during a proper evidence window, then the Board would determine whether it is relevant
whether properly submitted evidence is relevant to the appeal period, i.e., whether it reflects the severity and functional impairments of the service-connected disability during that period. Thus, when a Veteran submits evidence after the RO decision on appeal, but during an open evidence window, the Board must consider such evidence and determine whether it relates back to the relevant appeal period.

Here, the Board acknowledges that the Veteran submitted several VA examinations regarding the issues on appeal within the 90 days following his Board hearing. However, these VA examinations are dated September 2021, with range of motion measurements taken on that same date. In AMA increased rating appeals, if post-decisional evidence was submitted during a proper evidence window, then the Board would determine whether it is relevant to the appeal period, i.e., whether it reflects the severity and functional impairments of the service-connected disabilities during that period. Here, however, the VA examinations are dated more than one year after the rating decision on appeal, and after the period on appeal. Again, based on the Veteran's docket choice and the evidentiary rules established by Congress for AMA appeals, the Board cannot consider this evidence. 38 C.F.R. § 20.300.

The Board notes that this appeal stems from a November 2019 increased ratings claim. Therefore, the period on appeal begins on November 27, 2018, which includes the one-year look-back period. However, the evidentiary window closed on August 3, 2020, the date of the AMA rating decision on appeal.

2. Entitlement to a rating in excess of 10 percent for a right hand disability.

The Veteran contends that his right hand disability is worse than currently rated. He is right hand dominant, and thus, the criteria for a major joint are for application.

Throughout the period on appeal, the Veteran's right hand disability has been rated as 10 percent disabling under DC 5223. Under this Diagnostic Code for a dominant hand, a 10 percent rating is appropriate for favorable ankylosis of the long finger and ring finger, the long finger and little finger, or the ring finger and little finger. 38 C.F.R. § 4.71a. A 20 percent rating is appropriate for favorable ankylosis of the index finger and long finger, the index finger and ring finger, or the index finger and little finger. Id. A 30 percent rating is appropriate for the thumb and any finger. Id.

A higher, 20 percent rating is warranted under DC 5219 for unfavorable ankylosis of the ring and little fingers. Alternatively, a third digit with favorable ankylosis, would warrant a 20 percent rating under DC 5222. 38 C.F.R. § 4.71a.

Initially, the Board notes the Veteran has been in receipt of a 10 percent rating for this condition since June 1999 - more than 20 years. As such, the Veteran's rating is protected and cannot be reduced absent a showing of fraud. 38 C.F.R. § 3.951.

Thus, in order to warrant a higher rating, the evidence must show the Veteran's right ring and little fingers to manifest with unfavorable ankylosis. In the alternative, a third digit with favorable ankylosis.

After a review of the evidence, the Board finds that a higher rating for the Veteran's right hand disorder is not warranted, as the evidence does not indicate that he has favorable or unfavorable ankylosis of the right ring and little fingers.

Here, the Board relies primarily on the examination report from the July 2020 VA examiner. The Veteran was diagnosed with a right hand fracture of the ring and little fingers. He reported pain with range of motion and numbness in the fingers, however, he denied flareups. Upon examination, while limitation of motion and slight loss of grip was shown, the VA examiner opined that he did not exhibit any ankylosis of either finger. Indeed, the VA examiner noted his range of motion measurements of the right hand fingers to all be normal. Overall, the clinician opined that his right hand condition caused no functional impact.

As part of his claim, the Veteran submitted a private medical opinion in June 2024, dated October 2022. Here, Dr. M.R. reviewed the claims file but did not examine the Veteran, nor did the clinician perform range of motion testing. Instead, Dr. M.R. provided a review of his medical history, to include a September 2021 VA examination which is outside of the evidentiary window. Despite the private clinician's mention of reduced grip strength of 4/5, and some right hand pain, the private examination does not indicate the Veteran's right hand has ankylosis. Given the private clinician did not examine him, the
that his right hand condition caused no functional impact.

As part of his claim, the Veteran submitted a private medical opinion in June 2024, dated October 2022. Here, Dr. M.R. reviewed the claims file but did not examine the Veteran, nor did the clinician perform range of motion testing. Instead, Dr. M.R. provided a review of his medical history, to include a September 2021 VA examination which is outside of the evidentiary window. Despite the private clinician's mention of reduced grip strength of 4/5, and some right hand pain, the private examination does not indicate the Veteran's right hand has ankylosis. Given the private clinician did not examine him, the opinion is of little probative value in this appeal.

Similarly, the Veteran's treatment records during the period on appeal do not indicate his right ring and little fingers to be ankylosed in either manner.

The Board has also considered evaluating the Veteran's right-hand disability under other diagnostic codes as well, but none will afford the Veteran a higher rating. Limitation of motion of the fingers is governed by DCs 5228 through 5230, which contemplate limited motion of the thumb (DC 5228), the index or long finer (DC 5229), and the ring or little finger (DC 5230). The evidence here does not show limitation of motion of both fingers throughout the appeal period. However, even if it did, Diagnostic Code 5230 only provides for a noncompensable evaluation for limitation of motion of the ring and little finger. Rating the disability under DC 5228 would not yield a higher evaluation, as this diagnostic code considers limitation of motion resulting in a gap between the thumb and finger pads, which is not demonstrated at July 2020 VA examination. Further, even if the VA examination indicated a gap of more than inch between the fingertips and the proximal transverse crease of the palm, as contemplated by DC 5229, this diagnostic code provides for a maximum of 10 percent rating, so a higher evaluation is not available.

Given the above, the Board finds that an increased rating for the Veteran's right hand is not warranted.

3. Entitlement to a rating in excess of 10 percent for a right knee disorder.

4. Entitlement to a separate 10 percent rating for right knee instability.

5. Entitlement to a rating in excess of 20 percent for a left knee disorder.

The Veteran contends that his right and left knee disorders are worse than currently rated. After a review of the evidence of record, the Board finds that increased ratings, based on limitation of flexion, are not warranted. However, a separate 10 percent rating for right knee instability is for application.

During the period on appeal, the Veteran's left knee disorder is rated as 20 percent disabling under DC 5020-5260, while his right knee disorder is rated as 10 percent disabling under DC 5257-5260.

Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27.

During the pendency of the present appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. See Kuzma, 341 F.3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. Starting February 7, 2021, the criteria that is more favorable to the Veteran will be applied.

Under the regulations in effect prior to February
the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. See Kuzma, 341 F.3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. Starting February 7, 2021, the criteria that is more favorable to the Veteran will be applied.

Under the regulations in effect prior to February 7, 2021, DC 5020, synovitis is rated based on limitation of motion of the affected part, as degenerative arthritis. 38 C.F.R. § 4.71a (2020).

In the amendments to Section 4.71a, effective February 7, 2021, Diagnostic Code 5020 was removed, and the following notation was added: "Note to DCs 5013 through 5024: Evaluate the diseases under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts." 38 C.F.R. § 4.71a, Acute, Subacute, or Chronic Diseases.

The DCs providing the criteria for ratings based on limitation of motion of the knee, DC 5260 (limitation of flexion) and DC 5261 (limitation of extension), were not affected by the February 7, 2021, amendment.

Under DC 5260, limitation of flexion to 60 degrees is rated 0 percent; flexion limited to 45 degrees is rated 10 percent; flexion limited to 30 degrees is rated 20 percent; and flexion limited to 15 degrees is rated (a maximum) 30 percent. Under Code 5261, limitation of extension at 5 degrees is rated 0 percent; extension limited at 10 degrees is rated 10 percent; extension limited at 15 degrees is rated 20 percent; extension limited at 20 degrees is rated 30 percent; extension limited at 30 degrees is rated 40 percent; and extension limited at 45 degrees is rated (a maximum) 50 percent. 38 C.F.R. § 4.71a, DCs 5260, 5261.

Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257 as in effect prior to February 7, 2021. Therefore, objective medical evidence cannot be categorically found more probative than lay evidence with respect to that Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Here, as the amended criteria add additional requirements to obtain increased ratings, the Board finds that the pre-amended criteria are more favorable and will apply those criteria when evaluating the claim.

Under the original rating criteria, slight recurrent subluxation or lateral instability resulted in a 10 percent rating. For a rating in excess of 10 percent, either moderate (20 percent) or severe (30 percent) lateral instability or recurrent subluxation must be shown. Under these criteria, terms such as "slight," "moderate," or "severe" were not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

In the absence of guidance in the rating criteria itself, the Board will consider the dictionary definitions for these subjective adjectives. "Slight" is defined as small in amount; "moderate" as limited in scope or effect; and "severe" as very painful or harmful, or of a great degree. Meriam Webster College Dictionary (11th ed. 2007).

Therefore, in order to warrant higher ratings, the Veteran's left knee must show flexion limited to 15 degrees or less (30 percent under DC 5260); right knee flexion limited to 30 degrees or less (20 percent under DC 5260); and slight lateral instability (10 percent separate rating under DC 5257).

Analysis

Turning to the evidence of record, the Veteran underwent a VA examination in July 2020. Here, he was diagnosed with bilateral knee meniscal tear, bilateral knee degenerative arthritis, left knee chondromalacia, right knee medial meniscus tear, and right knee ACL degeneration. As to symptoms, he reported constant sharp pain and weakness of the left knee, and constant pain of the right knee. Regarding treatment, he underwent a right knee meniscus repair in
to 15 degrees or less (30 percent under DC 5260); right knee flexion limited to 30 degrees or less (20 percent under DC 5260); and slight lateral instability (10 percent separate rating under DC 5257).

Analysis

The Veteran reported flareups with increased pain during activity. This pain, according to him, prevented him from being able to negotiate stairs safely. Upon examination, the Veteran exhibited at worst, flexion to 95 degrees estimated during flareups and repetitive use. Regarding his left knee, he exhibited flexion to, at worst, 105 degrees, estimated during flareups and repetitive use. The VA examiner noted normal muscle strength testing, no ankylosis, recurrent patellar dislocation or other tibial/fibular impairment, and no history of bilateral recurrent subluxation or lateral instability. While instability testing was performed, there was no joint instability found.

However, the July 2020 VA examiner noted that after reviewing the Veteran's MRI, he exhibited bilateral meniscal tears. Further, he reported right knee arthroscopic debridement and medial meniscal repair in 1999, with left knee prepatellar bursa in 2004. The examiner opined that his knee disorders did not require the use of an assistive device, nor did the Veteran report one during the examination. Lastly, the clinician opined that his knee disorders caused functional impairment, preventing him from standing or walking longer than 20 minutes.

Overall, the July 2020 VA examination report does not indicate increased ratings are warranted. Indeed, the Veteran's right knee flexion is limited, at worst to 95 degrees. Whereas, his left knee limitation of flexion is limited to 105 degrees. Even when estimating for flareups and repetitive use, his left knee flexion was not measured to 15 degrees or less, nor was his right knee limited to 30 degrees or less, as needed for higher ratings.

Turning to the other medical evidence of record, the Veteran submitted private treatment notes and underwent VA treatment during the period on appeal. However, these treatment notes do not indicate higher ratings are warranted. Specifically, range of motion measurements showing reduced flexion of either knee are not shown, nor are indications of instability of the right knee.

Additionally, the Veteran submitted a private medical opinion dated October 2022. While Dr. M.R. reviewed the evidence of record, they did not perform any range of motion measurements. Instead, the private clinician opined that the Veteran should be assigned separate 10 percent ratings of the right knee and left knee for cartilage removal, and right knee mild instability. However, here the Board notes that Dr. M.R. relied on post-rating decision medical evidence when providing a rationale as to why the Veteran's knee disorders warrant a higher rating. Indeed, the clinician referenced a total knee replacement occurring in January 2021, 5 months after the rating decision on appeal was adjudicated, in arguing for an increased rating. As this medical opinion utilizes evidence not of record at the time of the rating decision on appeal and does not itself include range of motion measurements (as the private clinician did not examine him in-person) the Board places little probative weight on the October 2022 private medical opinion.

In this case, the October 2022 private medical opinion indicated that the Veteran suffered from right knee instability. This is consistent with his testimony before the Board in May 2024. Specifically, he testified that his clinician prescribed him a knee brace following his 1999 right knee surgery in order to control his right knee instability.

Given the Veteran's Board testimony, as well as the findings of the October 2022 private examiner, the Board determines that a separate 10 percent rating is warranted for the Veteran's right knee instability. However, a high 20 percent rating is not for application. Indeed, the VA examination of record does not indicate right knee instability. Moreover, the private clinician opined that a higher rating under the diagnostic criteria is not shown.

The Board has considered other diagnostic codes for the Veteran's bilateral knee disability, to include ankylosis (Diagnostic Code 5256), disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258), removal of the semilunar
, as well as the findings of the October 2022 private examiner, the Board determines that a separate 10 percent rating is warranted for the Veteran's right knee instability. However, a high 20 percent rating is not for application. Indeed, the VA examination of record does not indicate right knee instability. Moreover, the private clinician opined that a higher rating under the diagnostic criteria is not shown.

The Board has considered other diagnostic codes for the Veteran's bilateral knee disability, to include ankylosis (Diagnostic Code 5256), disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258), removal of the semilunar cartilage (Diagnostic Code 5259), malunion/nonunion of the tibia and fibula (Diagnostic Code 5262),and genu recurvatum (Diagnostic Code 5263), and found them to not apply to the Veteran's bilateral knee disability picture in this period. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263.

While the October 2022 private examiner argued that separate ratings under DC 5259 are for application, the Board is not convinced. Specifically, the July 2020 VA examiner opined that the Veteran did not have cartilage restoration surgery. Therefore, a separate rating for removal of the semilunar cartilage is not appropriate.

As such, the Board finds that ratings in excess of 10 percent for the right knee, and 20 percent for the left knee, as for limitation of flexion are not warranted. However, a separate 10 percent rating for right knee instability is granted.

6. Entitlement to a rating in excess of 10 percent for a right ankle disorder.

The Veteran contends that his right ankle symptoms are worse than currently rated. After a review of the evidence of record, the Board disagrees, and finds that an increased rating is not for application.

During the period on appeal, the Veteran's right ankle disorder is rated as 10 percent disabling under DC 5271. Under this DC, for limited motion of ankle, moderate limited motion is rated 10 percent disabling and marked limited motion is rated 20 percent disabling. 38 C.F.R. § 4.71a.

The terms "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6.

The Board finds that the evidence of record is persuasively against finding for an increased rating for the Veteran's right ankle disability.

Turning to the evidence, the Veteran underwent a VA examination in July 2020. Here, he was diagnosed with right ankle fracture, complained of pain with walking and reported treatment with cortisone shots. He denied flareups or any additional functional loss. Upon examination, the Veteran's dorsiflexion was measured to be normal, while his plantar flexion, at worst, was measured to 40 degrees out of a normal 45 degrees. Moreover, his muscle strength was normal, and the examiner opined he did have ankylosis. Overall, the July 2020 VA examiner opined that his right ankle disorder caused no functional impairment.

Turning to the other evidence of record, the Veteran submitted a private medical opinion dated October 2022. Here again Dr. M.R. incorporated VA examinations dated after the rating decision on appeal. As noted above, the Board must determine whether the evidence submitted during an applicable evidentiary window is relevant to the period on appeal. Here, references to any VA examination after the rating decision on appeal is not relevant, and thus will not be considered. However, Dr. M.R. did note the Veteran's July 2020 VA examination, indicating he did not have right ankle pain on examination, and denied flareups. Nevertheless, Dr. M.R. indicated a 10 percent rating is appropriate.

Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's right ankle is not warranted. This evaluation contemplates pain on motion and is also consistent with moderate limitation of motion. In order to warrant a higher evaluation, the disability must approximate marked limitation of motion, which the Board finds is not demonstrated in the record, even taking into account the lay and medical evidence of record. Specifically, his ROM measurements during the July 2020 VA examination were normal for dorsiflexion, while his plantar flexion was restricted to 40 degrees out of the normal 45 degrees. Here, the Board cannot find such restricted plantar flex
.R. indicated a 10 percent rating is appropriate.

Additionally, the Board has considered other applicable rating codes under which to rate the separate symptoms by analogy. The medical evidence does not demonstrate that he suffers from ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or that he had an astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, 5274, 5284. Yancy v. McDonald, 27 Vet. App. 484 (2016). Accordingly, the Board finds separate ratings are not warranted.

In sum, the Board finds the evidence is persuasively against the claim for a rating in excess of 10 percent for the Veteran's right ankle disability.

7. Entitlement to a rating in excess of 20 percent for a left shoulder disorder.

The Veteran contends that he warrants a higher rating than he currently receives for his left shoulder disorder.

Disabilities and injuries of the shoulder are evaluated under DC 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71 (a). The evidence establishes the Veteran is right-handed, so his left shoulder is rated for impairment of the minor upper extremity.

During the period on appeal, the Veteran's left shoulder disability is rated as 20 percent disabling under DC 5201. Here, a 20 percent rating is warranted for the minor extremity for limitation of arm motion to shoulder level and limitation of arm motion to midway between the side and shoulder level; a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

Turning to the evidence, the Veteran underwent a VA examination in July 2020. Here, he was diagnosed with a history of left shoulder dislocation. He reported being right side dominant and having difficulty sleeping on his side. Upon examination, his left shoulder was measured at worst, of flexion to 140 degrees, abduction to 130 degrees, external and internal rotation to 60 degrees. Moreover, his left shoulder strength was measured to be normal. The examining clinician noted no ankylosis or muscle atrophy. While a left shoulder rotator cuff condition was suspected, the Veteran's test results were negative. While he reported a history of dislocations, he had no left shoulder clavicle, scapula or AC joint disorder nor use of any assistive device. Overall, the July 2020 VA examiner opined that his left shoulder disorder prevented him from lifting or carrying items.

The evidence of record also includes VA and private treatment notes. However, during the period on appeal there are no measurements, treatment or indications regarding the Veteran's left shoulder disorder.

Given the results of the July 2020 VA examination, the Board finds that an increased rating is not for application. Specifically, the evidence does not show the Veteran's left shoulder is limited to 25 degrees or less from his side. Thus, a higher rating is not warranted.

8. Entitlement to a rating in excess of 10 percent for right hip scar.

9. Entitlement to a compensable rating for a left knee scar.

The Veteran contends that his right hip and left knee scars are worse than currently rated. After a review of the evidence, the Board finds that an increased rating is warranted for three painful scars, however, a compensable rating solely for the left knee scar is not warranted.

As an initial matter, the Board acknowledges the Veteran's representative's argument during his May 2024 hearing that the RO too narrowly construed his right hip claim as one only for a scar. Here, the Board notes that during the pendency of this appeal, the Veteran has been granted service connection for a right hip disorders.

In this case however, the Board finds the RO did not narrowly construe the Veteran's right hip scar claim. Indeed, the basis for the rating decision on appeal stems from his January 2020 claim.
than currently rated. After a review of the evidence, the Board finds that an increased rating is warranted for three painful scars, however, a compensable rating solely for the left knee scar is not warranted.

In this case however, the Board finds the RO did not narrowly construe the Veteran's right hip scar claim. Indeed, the basis for the rating decision on appeal stems from his January 2020 claim. Specifically, he made no mention of "hip" and instead claimed "scar left knee" and "scar right leg." The RO interpreted this as a service connection claim for his left knee scar, and an increased rating claim for his right hip scar. In the August 2020 rating decision on appeal, the RO denied a rating in excess of 10 percent for his right hip scar. Subsequently, in the April 2021 VA Form 10182, he specifically appealed "[e]valuation of scar of right hip." Moreover, in the Form 10182, the cover letter listed only the issue of the scar of right hip, with no indication of another right hip disability.

Given this appeal stems from the Veteran's January 2020 claim regarding specifically a right leg scar, in addition to the appeal's wording of an increased rating for a right hip scar, the Board does not find the RO too narrowly construed his initial claim. Indeed, in his January 2020 claim, he made no mention of a separate right hip disability, noting only "scar of right leg."

Scars

In the rating decision on appeal, the Veteran was granted service connection for a left knee scar rated as noncompensable under DC 7802. Additionally, he is separately service connected for a right hip scar, rated as 10 percent disabling under DC 7804.

DC 7802 rates for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. Under that rating criteria, a maximum 10 percent rating is assigned when the scar covers an area of 144 square inches (929 square centimeters) or greater. All smaller scars are afforded a noncompensable rating. 38 C.F.R. § 4.118, DC 7802.

Further, DC 7804 rates for scars which are unstable or painful. Under those criteria, a single scar that is either unstable or painful is afforded a 10 percent rating. 38 C.F.R. § 4.118, DC 7804. In order to warrant a 20 percent rating, there must be three or four scars that are unstable or painful. Further, Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.

Turning to the evidence, the Veteran underwent a VA examination in July 2020. The VA clinician examined him, diagnosing him with multiple left knee scars and a right hip traction scar. He reported no pain but tenderness in scars when touched. Further, the VA examiner opined that there were no scars of the trunk or extremities due to burns. Upon examination, the VA examiner measured his right leg scars as 1 by 1 centimeters, and 0.5 by 1 centimeters, for an approximate total area of 1.5 centimeters. As for his left knee midline scar, it was measured as 16 by 0.5 centimeters, for an approximate total area of 8 centimeters. While the VA examiner opined that no scar was painful, the clinician noted all scars to be tender to palpation. Overall, the VA examiner opined that his scars caused no functional impairment.

The other evidence of record includes VA treatment notes; however, these do not support increased ratings. In addition, the Veteran submitted a private medical opinion dated October 2022. While the private clinician mentioned a history of care, including the Veteran's service-connected scars, there is no examination, no opinion, or any other discussion of his service-connected scars.

After a review of all the evidence, lay and medical, the Board resolves all doubt in the Veteran's favor in finding that the criteria for a 20 percent rating has shown. Specifically, he testified that his left knee and right hip scars are tender to the touch. Thus, given the findings of the July 2020 VA examiner that he has three service-connected scars, the Board finds that a 20 percent rating under DC 7804, but no
not support increased ratings. In addition, the Veteran submitted a private medical opinion dated October 2022. While the private clinician mentioned a history of care, including the Veteran's service-connected scars, there is no examination, no opinion, or any other discussion of his service-connected scars.

After a review of all the evidence, lay and medical, the Board resolves all doubt in the Veteran's favor in finding that the criteria for a 20 percent rating has shown. Specifically, he testified that his left knee and right hip scars are tender to the touch. Thus, given the findings of the July 2020 VA examiner that he has three service-connected scars, the Board finds that a 20 percent rating under DC 7804, but no higher, are warranted. However, a higher rating is not warranted since there is no evidence of five or more scars that are unstable or painful. Moreover, a higher rating under DC 7802 is not for application. Indeed, the evidence of record does not show his left knee scar is measured to be 144 square inches or greater. As such, a 10 percent rating under DC 7802 is not warranted.

In considering the appropriate disability ratings for the Veteran's disabilities the Board has also considered the Veteran's statements that his disorders are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his disabilities. The competent evidence concerning the nature and extent of the Veteran's claimed disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

As such, the Board finds that a 20 percent rating, but no higher, for the Veteran's scars is granted. However, a separate compensable rating for his left knee scar is not for application.

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.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board McDonald, Thomas K.

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