Veteranclaims’s Blog

October 18, 2021

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:16 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-5314
STEVEN R. WILSON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Steven R. Wilson appeals through counsel a May 6,
2019, Board of Veterans’ Appeals (Board) decision denying service connection for a left ear
disorder, including hearing loss; left knee evaluations in excess of 10% under 38 C.F.R. § 4.71a,
Diagnostic Code (DC) 5261, for limitation of extension since April 18, 2014, and in excess of 20%
under DC 5257 for instability since August 7, 2018; and a compensable evaluation for a left knee
surgical scar. Record (R.) at 5-29.1 For the reasons that follow, the Court will set aside the portions
1 In the same decision, the Board remanded the issues of entitlement to service connection for a lumbar spine
disability and bilateral pes planus, non-service-connected pension, and a total disability evaluation based on individual
unemployability (TDIU). R. at 24-29. Because a remand is not a final decision of the Board subject to judicial review,
the Court does not have jurisdiction to consider the remanded issues at this time. See Howard v. Gober, 220 F.3d
1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R.
§ 20.1100(b) (2020). The Board also awarded a separate 20% evaluation for meniscal disability under DC 5258 since
August 7, 2018; a separate 10% evaluation for meniscal disability under DC 5259, effective February 18, 1998, to
August 6, 2018; increased evaluation, from 10% to 20%, for instability under DC 5257 effective August 6, 2018; and
increased evaluation, from noncompensable to 10%, for limitation of extension under DC 5261 effective April 2014.
R. at 5, 14-21. Because these determinations are favorable to Mr. Wilson, the Court will not disturb them. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable
to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, dismissed in part sub nom. Medrano
v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). In addition, the Board denied left knee evaluations in excess of 10%
for DC 5259 for symptomatic semilunar cartilage removal from February 18, 1998, to August 6, 2018, and 20% for
DC 5258 for dislocated semilunar cartilage with frequent episodes of locking and effusion since August 7, 2018. R.
at 5-6, 18. Because Mr. Wilson has not challenged these portions of the Board decision, the appeal as to those issues
will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the
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of the May 2019 Board decision denying service connection for a left ear disorder and increased
left knee evaluations for limitation of motion and instability, and remand those matters for further
development and readjudication consistent with this decision. The Court will affirm the portion
of the May 2019 Board decision denying entitlement to a compensable evaluation for a left knee
surgical scar and dismiss the balance of the appeal.
I. FACTS
Mr. Wilson served on active duty in the U.S. Army from March 1991 to February 1998.
R. at 3252, 3258. At entrance, his ears and ear drums were noted to be normal. R. at 8266. He
injured his left knee playing basketball in October 1994, was diagnosed with a strain, was further
diagnosed with anterior cruciate ligament (ACL) and meniscal tear in December 1994, underwent
arthroscopy and medial meniscus repair in January 1995, and participated in physical therapy
following surgery. R. at 8271, 8276, 8280, 8282, 8283.
Mr. Wilson filed a December 1997 claim for service connection for left ear and left knee
disorders, describing a June 1991 problem with his left ear and his October 1994 left knee injury.
R. at 8228. In September 1999, a VA physical therapist found evidence of slight instability of the
left knee. R. at 1191. At an October 1999 VA examination, Mr. Wilson described the 1994 inservice
left knee injury and surgery, with current constant pain. R. at 7961-62, 7963. The examiner
measured left knee flexion from 20 to 98 degrees, without change on repetition or with resistance.
R. at 7963. The examiner noted no abnormal movement, ankylosis, or pain on palpation, but did
note negative results of stability testing and a 10-cm surgical scar. R. at 7963.
An October 1999 rating decision awarded service connection for ACL reconstruction and
meniscal tear with a scar, assessing a 10% initial evaluation under a hyphenated DC for a scar
(7804) and cartilage removal (5259), and denied service connection for otitis externa (claimed as
a left ear condition) and hearing loss. R. at 7936-45. Mr. Wilson appealed the initial evaluation
for his left knee, arguing for an extraschedular evaluation, R. at 7885, and that the VA examination
he underwent was inadequate, R. at 7891-92. The VA regional office (RO) responded with a May
2000 Statement of the Case (SOC), R. at 7749-56, and Mr. Wilson perfected his appeal, R. at 7631-40. His Substantive Appeal included further reference to his left ear condition, reporting treatment
merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014)
(same).
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at Fort Benning while he was in basic training, R. at 7633, and the RO responded with an October
2000 SOC and Supplemental SOC (SSOC) denying service connection for bilateral hearing loss
and left ear hearing loss claimed as otitis externa, respectively R. at 7283-93, 7308-13. Mr. Wilson
perfected an appeal and later clarified that his claim was for otitis externa rather than hearing loss.
R. at 6246, 6936. A July 2001 Colorado Department of Corrections treatment record shows that
Mr. Wilson complained that his knees give out on him. R. at 6150.
In October 2001, the RO issued a rating decision, R. at 6755-59, and SSOC, R. at 6745-49,
continuing the denial of service connection for otitis externa and initial evaluation in excess of
10% for left knee limitation of motion, changing the DC to 5299-5260 for painful motion. In
September 2003, the Board remanded these claims for VA examinations. R. at 6476-80. March
2005 Department of Corrections treatment records include a left knee examination, showing 95
degrees of flexion, with full muscle strength, but without effusion, abnormal gait, instability, or
locking. R. at 1226.
In a December 2005 decision, the Board denied service connection for a left ear condition
and an evaluation in excess of 10% for a left knee condition. R. at 6187-208. Mr. Wilson appealed,
and, in September 2007, this Court vacated the Board decision and remanded these matters for
new medical examinations and opinions. R. at 5734-39. May and July 2008 Department of
Corrections treatment records reflect a left knee surgical scar and full range of motion in both
flexion and extension, but no laxity on stress test. R. at 5108, 5112.
Mr. Wilson was unavailable for a June 2010 examination, and a VA examiner provided
medical opinions based on review of the prison treatment records and claims file. R. at 5076-77.
The examiner noted 1991 in-service treatment for otitis externa, found no record of residual
disability related to otitis externa, and opined that otitis externa and hearing loss were less likely
than not related to service. R. at 5079, 5082. As to Mr. Wilson’s left knee, the examiner noted
records showing full range of motion, but no locking, swelling, signs of inflammation, atrophy,
effusion, instability, laxity, or limp. R. at 5077-78, 5080.
In a September 2011 decision, the Board denied service connection for a left ear condition
and an evaluation in excess of 10% for a left knee condition. R. at 4755-82. An August 2012
Department of Corrections treatment record reflected Mr. Wilson’s complaint that his knee feels
weak. R. at 1613. Following another appeal, this Court in April 2013 vacated the Board’s
September 2011 decision and remanded these matters for new medical examinations and opinions.
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R. at 4180-92. In October 2013, a private audiologist diagnosed hearing loss, R. at 1507, and Mr.
Wilson’s representative submitted written argument to the Board calling for separate evaluations
under DCs 5257 for instability and DC 5259 for removal of semilunar cartilage, R. at 4165-67.
At an April 2014 VA knee examination, Mr. Wilson described treatment with steroid
injections, but denied flare-ups. R. at 1118-19. The examiner measured a limited range of left
knee motion from 5 to 100 degrees, with pain at 100 degrees, but no additional functional loss or
change on repetition. R. at 1119-20, 1123. The examiner found no pain on palpation, joint
instability, or subluxation, and noted full muscular strength. R. at 1120-21. The examiner also
attributed intermittent left knee pain to a meniscal tear and meniscectomy and noted Mr. Wilson’s
surgical scar. R. at 1121-22. The same examiner found no hearing loss for VA purposes based on
the October 2013 private audiologic testing and found no infection, inflammation, or other ear
condition on examination. R. at 1130.
A September 2014 VA audiology note indicated left ear hearing loss for VA purposes. R.
at 1091; 38 C.F.R. 3.385 (2020). In November 2014, the RO continued the denial of service
connection for left ear infection and an evaluation in excess of 10% for a left knee meniscal
condition in an SSOC. R. at 3548-57. The RO also awarded a separate noncompensable
evaluation for left knee limitation of extension under DC 5261, effective October 2014. R. at
3552-53.
In January 2015, Mr. Wilson filed a supplemental claim for bilateral hearing loss. R. at

In July 2015, a VA physical therapist noted Mr. Wilson’s complaint of left knee instability
with running. R. at 1039. In September 2015, the RO denied service connection for hearing loss
and tinnitus. R. at 2888-96. Mr. Wilson filed a March 2016 claim for increased evaluation of left
knee limitation of extension. R. at 2782.
At an April 2016 VA examination, Mr. Wilson described constant pain with climbing steps,
prolonged walking or standing, squatting, kneeling, and running. R. at 980. He stressed that his
knee feels weak and gives when going up stairs. Id. The examiner measured a limited range of
left knee motion from 5 to 100 degrees, with pain crepitus and pain on palpation of the joint. R.
at 981. The examiner found no additional functional loss or change on repetition but was unable
to opine without speculation on how pain, weakness, fatigability, or incoordination might cause
additional functional limitation. Id. The examiner found no atrophy or ankylosis and noted full
muscular strength. R. at 981. The examiner found a history of slight subluxation, recurrent
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effusion, and slight anterior instability, but no posterior, medial, or lateral instability. R. at 982-

The examiner also noted meniscal tear with meniscectomy and surgical scar but could not
determine which symptoms were due to this condition. R. at 983-84.
In May 2016, the RO issued a rating decision granting a separate 10% evaluation for left
knee instability under DC 5257 and a noncompensable evaluation under DC 7805 for a surgical
scar, each effective as of the March 2016 date of claim, and continued the 10% evaluation effective
February 1998 for painful motion under DC 5260 and the noncompensable evaluation effective
October 2014 for limitation of extension under DC 5261. R. at 2458-62.
At an August 2018 VA examination, Mr. Wilson described flare-ups with prolonged
walking or standing and going up or down stairs. R. at 511. He added that he cannot run, jump,
or kneel. Id. The examiner measured a limited range of left knee motion from 0 to 80 degrees,
with pain on both flexion and extension and palpation of the joint, causing functional limitation
on bending and kneeling. R. at 512, 523. The examiner also noted pain with weight bearing and
evidence of crepitus but found no additional limitation or functional loss on repetition. R. at 513.
The examiner noted pain, weakness, and lack of endurance, but no impact of these symptoms on
Mr. Wilson’s range of motion based on the same range of motion from 0 to 80 degrees. R. at 514-

The examiner found no atrophy or ankylosis and noted full muscular strength. R. at 517-18.
The examiner noted a history of moderate subluxation and instability with recurrent effusion. R.
at 518. The examiner attributed frequent locking, joint pain, and effusion to Mr. Wilson’s left knee
meniscal tear with meniscectomy. R. at 520.
In the May 2019 decision on appeal, the Board denied service connection for a left ear
disorder, specifying that the claim included left ear hearing loss, and finding no current diagnosis
for left ear disability or hearing loss. R. at 8-11. As to Mr. Wilson’s left knee,2 the Board granted
a separate 10% evaluation for meniscal disability under DC 5259 effective February 1998 to
August 2018 and a separate 20% evaluation for meniscal disability under DC 5258 since August

R. at 5, 14-21. As to the veteran’s range of motion, the Board replaced the 10% evaluation
for painful motion under DC 5260 in effect since February 1998 with a 10% evaluation under DC
5261 effective April 2014. Id. The Board found no basis for additional compensation based on
2 At the time of the May 2019 Board decision, according to the May 2016 rating decision, he was in receipt
of a 10% evaluation for painful motion under DC 5260 since February 1998, a 10% evaluation for instability under
DC 5257 since March 2016, a noncompensable evaluation for limitation of extension under DC 5261 since October
2014, and a noncompensable evaluation for a surgical scar under DC 7805 since March 2016. R. at 2458-62.
6
functional impairment with use. R. at 21. Finally, the Board denied a compensable evaluation for
left knee scar. R. at 21-24. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Wilson’s appeal is timely, and the Court has jurisdiction to review the May 2019 Board
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determinations regarding service connection, the appropriate degrees of
disability, whether the duty to assist has been satisfied, and the adequacy of a medical examination
or opinion are findings of fact subject to the “clearly erroneous” standard of review. 38 U.S.C.
§ 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Nolen v. Gober, 14 Vet.App. 183,
184 (2000); Davis v. West, 13 Vet.App. 178, 184 (1999); Smallwood v. Brown, 10 Vet.App. 93,
97 (1997). “A factual finding ‘is “clearly erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze the credibility and probative value of evidence, account for evidence it
finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table). The Board must also discuss all issues raised by the claimant or
evidence of record and discuss all provisions of law and regulation where they are made
“potentially applicable through the assertions and issues raised in the record.” Thompson v. Gober,
14 Vet.App. 187, 188 (2000) (per curiam order); see Robinson v. Peake, 21 Vet.App. 545, 552
(2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009); Schafrath v.
Derwinski, 1 Vet.App. 589, 592 (1991).
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III. ANALYSIS
A. Hearing Loss and Ear Disability
Mr. Wilson argues that the Board erred in finding that service connection for right ear
hearing loss was not on appeal. Appellant’s Brief (Br.) at 13, 15. He specifies that the RO has
consistently treated his ear claim as encompassing bilateral hearing loss—as reflected in the
October 1999 rating decision, October 2000 SOC, October 2001 SSOC—and that he perfected an
appeal for bilateral hearing loss in March 2001. Id. at 13. He further argues that the Board failed
to consider left ear tinnitus as part of that claim, arguing that the record reasonably raised a claim
for service connection for that disability. Appellant’s Br. at 15. The Secretary responds that VA
has not treated bilateral hearing loss or tinnitus as part of the left ear disability on appeal,
highlighting that the Court’s September 2007 and April 2013 memorandum decisions did not
address those issues, and that the appellant did not argue until October 2018 that those issues
should be on appeal. Secretary’s Br. at 14-15.
The Board’s May 2019 decision includes only a cursory discussion regarding the Board’s
jurisdiction over service connection for a right ear disability. R. at 8. The Board found that right
ear hearing loss was not within the scope of Mr. Wilson’s original claim but did not address any of
the potentially favorable procedural history referenced in his brief. Appellant’s Br. at 13. Nor did
it address the claim characterization in the relevant appeal documents or if VA, by previously
adjudicating service connection for bilateral hearing loss, had waived the requirement for a timely
Substantive Appeal specific to the right ear. Further, the Board did not discuss whether the
appealed ear claim included tinnitus for either ear. Resolution of these questions requires
significant factfinding that is best done by the Board in the first instance. See Hensley v. West,
212 F.3d 1255, 1263 (Fed. Cir. 2000) (explaining that “appellate tribunals are not appropriate fora
for initial fact finding”). Accordingly, the Court will remand those issues to the Board for further
discussion. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
Mr. Wilson further argues that the Board’s reasons or bases are inadequate to support its
finding that he does not have a current left ear disability. Appellant’s Br. at 14. He specifies that
a September 2014 VA audiology note shows hearing loss for VA purposes. Id. The Secretary
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concedes that the Board erred in denying service connection for a left ear disability by failing to
consider the September 2014 audiology note. Secretary’s Br. at 14.
The parties are correct; the Board did not consider the September 2014 VA audiology note
indicating left ear hearing loss for VA purposes. R. at 10-11, 1091; see 38 C.F.R. 3.385 (2020).
The Court therefore concludes that the Board’s failure to account for this evidence renders
inadequate the reasons or bases for its denial of service connection for a left ear disability. Remand
is therefore required for the Board to reassess entitlement to service connection for a left ear
disability. See Hensley, 212 F.3d at 1263; Tucker, 11 Vet.App. at 374.
B. Limitation of Left Knee Motion Under DCs 5260 and 5261
Mr. Wilson argues that the Board’s reasons or bases are inadequate to support the finding
that his range of motion prior to April 2014 does not merit a compensable evaluation under DC

Appellant’s Br. at 8-10. He specifies that the September 1999 VA examination report shows
left knee range of motion from 20 to 98 degrees, demonstrating extension limited to 20 degrees
and potentially supporting a 30% evaluation under DC 5261. Id. He seeks reversal of the Board’s
finding in this regard and remand for an adequate statement of reasons or bases. Appellant’s Br.
at 10. The Secretary concedes that the Board did not evaluate the October 1999 VA examination
report showing left knee flexion from 20 to 98 degrees in assessing the evaluation assigned under
DC 5261 prior to April 2014. Secretary’s Br. at 16-18.
DC 5260 provides for a noncompensable evaluation when flexion is limited to 60 degrees,
a 10% evaluation when flexion is limited to 45 degrees, a 20% evaluation when flexion is limited
to 30 degrees, and a 30% evaluation when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC
5260 (2020). DC 5261 provides for a 30% evaluation when extension is limited to 20 degrees, a
40% evaluation when extension is limited to 30 degrees, and a 50% evaluation when extension is
limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.
Here, the Board noted the October 1999 VA examiner’s measurement of left knee motion
from 20 to 98 degrees, R. at 7963, but failed to discuss that favorable evidence in assessing the
evaluation assigned for range of motion. R. at 14, 18-19. As the parties agree, the evidence could
support an evaluation higher than 10% for limitation of extension under DC 5261 prior to April

Failure to account for this evidence renders the Board’s reasons or bases inadequate for
denying a higher evaluation under DC 5261 for limitation of extension. However, remand, rather
than reversal, is warranted for the Board to assess this evidence in the first instance, including to
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make factual findings regarding the appropriate DC under which to compensate Mr. Wilson for
his knee pain, painful motion, and associated functional limitations. See Hensley, 212 F.3d at 1263;
Tucker, 11 Vet.App. at 374.
Mr. Wilson additionally argues that the Board offered inadequate reasons or bases for
replacing the existing 10% evaluation for painful motion under DC 5260 with a compensable
evaluation under DC 5261, rather than assigning separate compensable evaluations. Appellant’s
Br. at 11-12. He specifies that the Board found the RO’s replacement of DC 5259 with DC 5260
appropriate, R. at 6-7, yet failed to explain why separate compensable evaluations would not have
been appropriate given his symptoms of pain, popping, instability, and limited range of motion.
Appellant’s Br. at 11-12. The Secretary responds that Mr. Wilson has failed to carry his burden of
demonstrating prejudice by failing to identify symptoms of DC 5259 that should have been
evaluated separately from painful motion under DC 5260. Secretary’s Br. at 21-22. Mr. Wilson’s
argument is persuasive.
Ordinarily, all disabilities—including those arising from a single disease entity—are to be
evaluated separately. 38 C.F.R. § 4.25(b) (2020) (“Except as otherwise provided in this schedule,
the disabilities arising from a single disease entity . . . are to be rated separately as are all other
disabling conditions, if any.”). One regulatory exception to this general rule is VA’s antipyramiding
provision, which provides that “evaluation of the same disability under various
diagnoses”—including “evaluation of the same manifestation under different diagnoses”—”is to
be avoided.” 38 C.F.R. § 4.14 (2020); see Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir.
2009) (noting this “exception to the ordinary process of separately rating and then combining
ratings”). Therefore, “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017).
Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including
10
changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”);
Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).
In determining whether a separate evaluation is warranted, “where manifestations of a
musculoskeletal disability causing additional functional limitation have not resulted in elevation
of the evaluation pursuant to DeLuca, those manifestations have not yet been compensated for
separate evaluation and pyramiding purposes.” Lyles, 29 Vet.App. at 118-19.
Here, the Board specified that the compensable evaluation for limitation of extension under
DC 5261 effective April 2014 replaced the existing compensable evaluation for painful motion
under DC 5260 in place since February 1998. R. at 19. Additionally, the Board explained the use
of DC 5261 for limitation of extension as opposed to DC 5260 for limitation of flexion as of April
2014, but the Board did not address how awarding a compensable evaluation under DC 5259 for
removal of semilunar cartilage prior to April 2014 compensates for the symptom of painful motion.
R. at 18-19, 2454. In awarding the compensable evaluation under DC 5259 for a meniscal
condition effective February 1998, the Board noted Mr. Wilson’s meniscal injury to be
“symptomatic,” but did not specify the symptoms considered. R. at 18. Moreover, the Board noted
the RO’s use of DC 5260 prior to April 2014 to represent painful knee motion with functional loss
of use, R. at 19, yet the award of a compensable evaluation under DC 5259 is not clearly predicated
on painful motion, R. at 18. Because discussion of the October 1999 VA examination report
showing limitation of extension may yield a compensable evaluation prior to April 2014 based on
mechanical application of DC 5261, Mr. Wilson’s knee evaluation could still fail to encompass
painful flexion as a manifestation of his service-connected left knee disability causing additional
functional limitation. See Lyles, 29 Vet.App. at 117-18.; DeLuca, 8 Vet.App. at 205-07. Therefore,
Mr. Wilson’s claim for compensation under DC 5260 prior to April 2014 is inextricably intertwined
with his claim for compensation under DC 5261 and remand is required for both issues. See
Henderson v. West, 12 Vet.App. 11, 20 (1998) (“[W]here a decision on one issue would have a
significant impact upon another, and that impact in turn could render any review by this Court of
the decision on the other [issue] meaningless and a waste of judicial resources, the two [issues] are
inextricably intertwined.”) (internal quotations and alterations omitted).
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Mr. Wilson further argues that the Board erred in relying on inadequate examinations in
evaluating his left knee. Appellant’s Br. at 21-23. He specifies that none of the examinations to
date have included information as to his pain on both active and passive motion and in weightbearing
and non-weight-bearing position. Id. He also asserts that the August 2018 examination
does not provide sufficient information regarding flare-ups. Appellant’s Br. at 23. The Secretary
concedes that the Board erred in denying an evaluation in excess of 10% under DC 5261 following
April 2014. Secretary’s Br. at 18-20. He specifies that the August 2018 VA examination report
was inadequate because the examiner failed to indicate at what point pain was present on both
flexion and extension. Secretary’s Br. at 19. The Secretary requests remand of the claims for
increased evaluation under DCs 5260 or 5261 since April 2014 for a new examination. Id.
A VA medical examination or opinion is adequate “where it is based upon consideration
of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123
(2007), “describes the disability. . . in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical
question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105
(2012). See also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical
examination report must contain not only clear conclusions with supporting data, but also a
reasoned medical explanation connecting the two.”).
For a VA joints examination in particular to be adequate, the examination must, inter alia,
portray the extent of functional loss and/or limitation due to pain and the other factors set forth in
§§ 4.40 and 4.45, including with repetitive use and on flare-up, Mitchell v. Shinseki, 25 Vet.App.
32, 44 (2011); DeLuca, 8 Vet.App. at 206-07, and “wherever possible, include the results of
[ROM] testing described in the final sentence of [38 C.F.R.] § 4.59,” Correia v. McDonald, 28
Vet.App. 158, 169-70 (2016)—i.e., “on both active and passive motion, in weight-bearing and
non[-]weight-bearing and, if possible, with the range of the opposite undamaged joint,” 38 C.F.R.
§ 4.59 (2020). When flare-ups are indicated, the examiner must offer a flare opinion based on an
estimate derived from information procured from relevant sources, including the lay statements of
the veteran, after asking the veteran to describe functional limitation. Sharp v. Shulkin, 29
Vet.App. 26, 34-35 (2017). When examiners state that they cannot offer a flare opinion without
resort to speculation, that opinion is adequate only when it is “clear that [it] is predicated on a lack
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of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the
specific examiner.” Id. at 36 (quoting Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)).
The Court agrees with the parties that the August 2018 examination is inadequate. The
examination does not comply with Correia, 28 Vet.App. at 169-70, because the examiner noted
pain with weight bearing, but did not conduct the range-of-motion tests required by § 4.59. R. at

Specifically, the examination report does not include range of motion measurement on active
or passive motion or on weight-bearing and non-weight-bearing. Id.; see also Correia,
28 Vet.App. at 170 n.8 (“leav[ing] it to medical professionals to determine whether the listed
[range of motion] testing can be performed on the joints at issue in a particular case”). Because
the examination is inadequate, the Board erred when it relied on it to deny entitlement to a higher
left knee evaluation based on limitation of motion. See Ardison, 6 Vet.App. at 407. Therefore,
the Court concludes that the claim must be remanded for new VA examinations. See Barr v.
Nicholson, 21 Vet.App. 303, 311 (2007); see also Tucker, 11 Vet.App. at 374.
C. Instability Under DC 5257
Mr. Wilson also argues that the Board’s reasons or bases are inadequate to support the
finding that his left knee instability worsened as of the August 2018 VA examination and not
before. Appellant’s Br. at 16-17. He specifies that the Board was unable to factually ascertain
whether there was any worsening of the knee instability prior to the August 2018 VA examination,
that the August 2018 examiner offered no date of onset for worsening left knee instability, and that
the Board should have therefore obtained a retrospective opinion. Id. He further specifies that DC
5257 assigns evaluations based on slight, moderate, or severe instability and that the Board failed
to define these standards. Appellant’s Br. at 18. The Secretary responds that the examination
reports provide a plausible basis in the record for the Board’s findings and that the Board is not
required to define the terms in the DC. Secretary’s Br. at 23. The Court agrees with Mr. Wilson.
At the time of the Board’s May 2019 decision, 38 C.F.R. § 4.71a, DC 5257 (2018), provided
for a 10% evaluation for slight symptoms, a 20% evaluation for moderate symptoms, and a 30%
evaluation for severe symptoms. The Board relied on the April 2016 VA examination report to
find slight instability since March 2016 and on the August 2018 VA examination report to find
moderate instability as of the date of that examination. R. at 20. The Board noted Mr. Wilson’s
earlier lay statements, including subjective reports of symptoms of instability and subluxation prior
13
to April 2016, but assigned greater probative weight to the findings of the VA examiners based on
their training. R. at 19-20.
Yet, the Board also noted that the record contained a September 1999 VA physical
therapist’s note finding evidence of slight instability of the left knee. R. at 20, 1191. It is unclear
why the physical therapist’s finding of slight instability, which presumably was also based on
clinical training, was not sufficient to demonstrate that left knee instability was present prior to
March 2016. R. at 20. Although the Board weighed the probative value of the veteran’s lay
statements against those of the trained clinicians, it did not address the relative probative weight
of the physical therapist’s finding against the findings of the other trained clinicians. Id. The
Board’s failure to weigh the competing evidence prevents Mr. Wilson from understanding the
precise basis for the Board’s rejection of the favorable evidence of instability prior to March 2016
and frustrates judicial review of that issue. See Gilbert, 1 Vet.App. at 57. Because proper
consideration of that evidence by the Board may warrant entitlement to a compensable evaluation
under DC 5257 prior to March 2016, the Court agrees with Mr. Wilson that he was prejudiced by
the Board’s inadequate discussion of that evidence and that remand is necessary to remedy that
error. See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018) (explaining that prejudice is established
where the error “affected or could have affected the outcome of the determination”); Tucker, 11
Vet.App. at 374.
Regarding the veteran’s instability since August 2018, the Board adopted the August 2018
examiner’s finding of a history of moderate instability with effusion to assign a higher staged
evaluation for that period. R. at 20, 518. Yet, the Board did not explain how it concluded that
moderate instability did not exist prior to the date of the August 2018 examination given that the
examiner’s findings were specifically based on a reported history of moderate instability or
subluxation, rather than a contemporaneous finding of that symptom. The Board’s failure to do so
prevents Mr. Wilson from understanding the precise basis for the Board’s rejection of the favorable
evidence of moderate instability prior to August 2018 and frustrates judicial review of that issue.
See Gilbert, 1 Vet.App. at 57. The Court therefore agrees with Mr. Wilson that the Board provided
inadequate reasons or bases for denying a 20% evaluation for left knee instability under DC 5257
prior to August 2018 and that remand is warranted to remedy that inadequacy. See Tucker, 11
Vet.App. at 374.
14
D. Surgical Scar
Finally, as to his left knee surgical scar, Mr. Wilson argues that the Board failed to address
favorable medical evidence of tenderness and failed to assess his credibility in describing his knee
as numb and tingling. Appellant’s Br. at 19-21. The Secretary responds that the other evidence
reviewed by the Board provides a plausible basis in the record for the Board’s findings and that the
September 1999 VA treatment record and October 1999 lay statement referenced by the veteran
do not actually support his argument. Secretary’s Br. at 24-27.
Here the Board considered evaluations under 38 C.F.R. § 4.118 DCs 7801, 7802, 7803,
7804, and 7805, including the earlier versions of these DCs in effect during the pendency of the
appeal. R. at 22-24. The Board rejected compensable evaluations under DC 7801 because Mr.
Wilson’s left knee surgical scar does not affect his head, face, or neck; DC 7802 because the scar
only covers 10 linear cm; DC 7803 because the scar is not unstable; DC 7804 because the scar is
not painful on examination; and DC 7805 because Mr. Wilson is already receiving compensation
for lost motion of his left knee. Id.; see also 38 C.F.R. § 4.14 (the rule against pyramiding). The
Board relied on the August 1999 VA examination report and several later treatment records to find
that the veteran’s scar is a well healed, 10 cm, linear scar without pain. R. at 23. The Board
acknowledged Mr. Wilson’s argument that his scar is painful but found that argument inconsistent
with the other evidence of record, including his lay statements made to medical care providers. R.
at 23.
Although the Board did not specifically address the cited lay statements from his
September 1999 VA treatment record or October 1999 Notice of Disagreement (NOD), the Board
did not clearly err in finding that his argument that his scar is painful, numb, and tingly was at
odds with his lay statements to VA examiners regarding his scar. R. at 23. The statements relied
on by Mr. Wilson in his argument do not mention his scar, refer to his entire leg rather than his
knee with regard to numbness, and refer to tenderness of the right knee rather than the left. R. at
1191, 7891; see Hersey, 2 Vet.App. at 94; Gilbert, 1 Vet.App. at 53.
The Court likewise perceives no error in the Board’s finding that the August 1999
examination report and later treatment records carry more probative weight than the veteran’s lay
statements. R. at 25. The Board permissibly determined that the veteran’s assertion that his scar
is painful is inconsistent with his own lay statements at VA examinations. The Court notes that it
is the Board’s responsibility, not the Court’s, to review the evidence and assign it probative weight,
15
Washington v. Nicholson, 19 Vet.App. 362, 369 (2006); Wood v. Derwinski, 1 Vet.App. 190, 193
(1991), and the Court may not overturn the Board’s determinations as to the relative weight of
evidence absent a showing of clear error, which is lacking here. See Owens v. Brown, 7 Vet.App.
429, 433 (1995). Mr. Wilson’s argument hinges on his assertion that his scar is painful and that
the September 1999 treatment record and October 1999 NOD support that contention, Appellant’s
Br. at 19, but as discussed above, the Board’s finding that this argument is at odds with the evidence
of record is plausible and the veteran points to no other evidence supporting his contention. His
challenge to the Board’s reasons or bases in this regard is therefore unavailing.
The Court concludes that the Board’s analysis was consistent with governing law, plausible
in light of the record, and sufficiently detailed to inform Mr. Wilson of the reasons for its
determination that entitlement to a compensable evaluation for a scar is not warranted and to
facilitate judicial review. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506. Accordingly,
the Court will affirm this portion of the May 2019 Board decision.
IV. CONCLUSION
Upon consideration of the foregoing, the portions of the May 6, 2019, Board decision
denying service connection for a left ear disorder, including hearing loss; left knee evaluation in
excess of 10% under DC 5261 for limitation of extension since April 18, 2014; and left knee
evaluation in excess of 20% under DC 5257 for instability since August 7, 2018, are SET ASIDE
and those matters are REMANDED for further development and readjudication consistent with
this decision. The portion of the May 6, 2019, Board decision denying entitlement to a
compensable evaluation for a left knee surgical scar is AFFIRMED. The balance of the appeal is
DISMISSED.
DATED: June 30, 2021
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)

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